Date Submitted: February 1, 2007 Date Decided: June 5, 2007

Transcription

1 Superior Court of the State of Delaware Jan R. Jurden New Castle County Courthouse Judge 500 North King Street, Suite Wilmington, Delaware Telephone (302) Date Submitted: February 1, 2007 Date Decided: June 5, 2007 Sheldon S. Saints, Esquire Michael Ippolitti, Esquire Rahaim & Saints 1225 King Street, Suite Limestone Road, Suite 211 P.O. Box 2284 Wilmington, DE Wilmington, DE RE: Woods v. Wal-Mart Stores, Inc. C.A. No. 06A Dear Counsel: Upon Claimant s Appeal from the Industrial Accident Board. REVERSED and REMANDED. Appellant, Lionel Woods, appeals the January 18, 2006 decision of the Industrial Accident Board ( Board ), granting the petition to terminate his disability benefits filed by Appellee, Wal-Mart Stores, Inc. ( Wal-Mart ). Woods argues that the Board erred by not placing the burden on Wal-Mart to prove that his earning capacity was not diminished as a result of the work accident. For the following reasons, the decision of the Board is REVERSED and REMANDED. FACTS On May 25, 2005, Woods was injured while working for Wal-Mart as receiver loader supervisor. While unloading a pallet of televisions, Woods slipped and fell on the loading dock. Woods was struck by the pallet jack and knocked into boxes of grills, landing on his right hip. Woods was taken from work to

2 Newark Emergency Room, where he was treated and released for right hip strain and sprain. The next day, Woods began treatment at Concentra Medical Center with Dr. Frederick Williams for right hip, thigh, and low back pain. Dr. Williams ordered an MRI of his right hip, which was normal. Dr. Williams disabled Woods from work until June 10, 2005, when he was released to work full-time in a light-duty capacity. Woods was restricted from standing or walking more than 10 minutes per hour. On June 12, 2005, Woods treated at Christiana Emergency Room with Dr. Leonard Nitowski for burning low back pain. Dr. Nitowski s neurologic examination of Woods low back and lower extremities was normal. Woods was treated and released to work without restrictions, effective June 15, On June 13, 2005, Woods returned to Concentra Medical Center for an office visit with Dr. Williams. At that visit, Dr. Williams suspected that Woods was exaggerating his symptoms, noting that Woods walked out of the office without the aid of a cane, walker, or wheelchair. Dr. Williams also indicated that Woods was uncooperative during the examination. For these reasons, Dr. Williams reported his suspicion to Wal-Mart that Woods was demonstrating symptom magnification. 1 Wal-Mart human resources director, Michelle Taylor, scheduled a meeting with Woods on June 21, 2005, for an accident review. Wal-Mart risk control leader, Dorothy Michael, and the store manager, Mural, also attended the meeting. The parties dispute the purpose of the meeting. Taylor claims that she made a bona fide job offer to Woods to return to work as a full-time greeter. Taylor 1 Grossinger Dep. 15:5-13, Nov. 16,

3 alleged that Woods verbally accepted the position and was given a full-time work schedule. Woods was allegedly scheduled to start the next day. Taylor also claimed that she gave Woods a written memorialization of the job offer. Woods did not have his glasses, however, and asked to take the documents home to review. Woods denies that any such job offer was discussed, but concedes that Taylor gave him documents to review at home. At the hearing, Taylor admitted that the written offer was not signed by either party, nor did it provide a start date or rate of pay. Woods has not returned to work at Wal-Mart in any capacity since the accident. On June 21, 2005, Woods treated for the final time at Concentra Medical Center with Dr. Michael Rosenthal. Woods continued to complain of right leg pain with difficulty bearing weight. Dr. Rosenthal performed objective orthopedic and neurological examinations of Woods low back and lower extremities, which yielded inconsistent findings. As a result, Dr. Rosenthal concluded that Woods was magnifying his symptoms. Woods was released to full-time work in a modified capacity. On June 23, 2005, Woods began treating with Dr. Barry Bakst at Delaware Back Pain and Sports Rehabilitation Center. Woods complained of decreased sensation in his right leg, difficulty sleeping, dressing and climbing stairs. Dr. Bakst was unable to pinpoint the exact location of the pain generator, but his impression was that Woods sustained an annular tear and was experiencing myofascial pain. Dr. Bakst indicated that spinal injections were required for a proper diagnosis. Dr. Bakst prescribed chiropractic treatment and physical therapy three times a week for four weeks. Dr. Bakst disabled Woods from work and referred him for an MRI of his lumbar spine, which revealed an annular tear. 3

4 Woods continued to treat with Dr. Bakst, attend physical therapy, and receive chiropractic treatment through October During that period, Dr. Bakst referred Woods for a consultation with Dr. Alex Bodenstab for his hip pain. Dr. Bodenstab indicated that x-rays of Woods right hip were normal and determined that no additional treatment was necessary for the hip. Dr. Bakst also referred Woods to Dr. Yadhati for epidural injections. Woods treatment with Dr. Yadhati was complicated, however, by Woods use of blood thinning medication for a pre-existing heart condition. The number of injections Woods received was limited because they had to be coordinated with his cardiologist and involved discontinuation of his blood thinner medication. On October 25, 2005, Woods underwent a medical examination with Dr. Steven Grossinger. Dr. Grossinger was hired by Wal-Mart to perform this evaluation. Dr. Grossinger acknowledged that Woods sustained an annular tear in his lumbar spine. Dr. Grossinger also admitted that an annular tear could be a pain generator. Dr. Grossinger s opinion, however, was that Woods tear was clinically insignificant, because he did not have an accompanying disc herniation. Based on the normal EMG and his examination of Woods, Dr. Grossinger opined that Woods had recovered from a transient soft tissue injury to his hip and low back as a result of the work accident. Dr. Grossinger also opined that Woods was capable of returning full-time without restrictions as of June 15, At his November 8, 2005 deposition, Dr. Bakst testified that Woods could return to work on a trial basis, initially for four hours per day in a sedentary capacity for several weeks. Woods could increase his hours, depending on how he responded. Dr. Bakst s opinion was based on a negative EMG study of Woods right lower extremity, dated October 25,

5 On November 28, 2005, the Board convened a hearing to consider Wal- Mart s petition to terminate Woods total disability benefits. DECISION OF THE INDUSTRIAL ACCIDENT BOARD The focus of the Board s inquiry was whether Woods was partially disabled from work. The Board did not consider whether Woods was totally disabled, because both experts agreed that Woods could return to work in a sedentary capacity. The experts disputed the extent of Woods disability. Dr. Bakst opined that Woods was partially disabled, but Dr. Grossinger opined that Woods could return to work full-time as a greeter for Wal-Mart. The Board accepted the opinion of Dr. Grossinger as a more accurate reflection of the evidence. The Board noted that Woods subjective complaints, which may have been exaggerated, contrasted with the lack of objective findings, including normal MRI, EMG, and radiological studies. The Board also considered that Drs. Williams and Nitkowski released Woods to full-time work. The Board held that Dr. Grossinger s opinion that Woods sprain and strain had resolved was consistent with the evidence. The Board was not persuaded by Dr. Bakst s testimony, because he was unable to attribute the annular tear to the work accident. The Board was also not convinced by Dr. Bakst s alternate theory that Woods pain was caused by a muscle imbalance in his lumbar region. The Board held that Wal-Mart satisfied its burden to terminate Woods disability benefits, effective January 18, Woods appealed the IAB decision on February 2, 2006, to this Court. 5

6 STANDARD OF REVIEW On appeal, this Court reviews a decision of the Industrial Accident Board to determine if the Board s decision is supported by substantial evidence and free from legal error. 2 Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 3 Substantial evidence is more than a scintilla but less than a preponderance. 4 On appeal, this Court does not have the authority to weigh evidence, determine the credibility of witnesses or make independent factual findings. 5 If the Board s decision is supported by substantial evidence, this Court must affirm the ruling unless it identifies an abuse of discretion or a clear error of law. 6 Questions of law are reviewed de novo. 7 DISCUSSION Woods concedes that he was not eligible for total disability benefits because Dr. Bakst testified that he could return to work. On appeal, Woods claims that the Board erred by not finding that he was partially disabled, because Wal-Mart failed 2 Methodist Country House v. Wright, 2005 Del. Super. LEXIS 167, at *5. 3 Olney v. Cooch, 425 A.2d 610, 614 (Del )(quoting Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966)). 4 Id. (quoting Cross v. Califano, 475 F.Supp. 896, 898 (D.Fla.1979)). 5 State v. Dalton, 878 A.2d 451, 454 (Del.2005)(citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)). 6 Bolden v. Kraft Foods, 2005 Del. LEXIS 527, at *5 (citing DiGiacomo v. Bd. of Public Educ., 507 A.2d 542, 546 (Del. 1986)). 7 Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del.1998)(citing State v. Cephas, 637 A.2d 20, 23 (Del. 1994)). 6

7 to prove that (1) it made bona fide job offer for a greeter position on June 21, 2005, and (2) that such a position was available when Woods was released from total disability by Dr. Bakst. Woods argues that Wal-Mart bears the burden of proving that his earning capacity was not diminished as a result of the work accident, and the record lacks any evidence that the greeter position would afford the same hours and wages as his former managerial position. An employer that files a petition to terminate an employee s total disability benefits bears the initial burden of demonstrating that the employee is no longer totally incapacitated for the purpose of working. 8 The employer must also show that the disability has terminated, entirely or partially, or that any continued disability was not the result of the accident. 9 Finally, when there is evidence of a continued disability, despite evidence of improvement, the employer bears the burden to prove that the disability does not reasonably affect the employee s earning capacity. 10 In this case, the Board accepted the opinion of Dr. Grossinger that Woods was able to return to work full-time at Wal-Mart as a greeter. When reviewing the testimony of conflicting expert witnesses, the Board has the discretion to adopt the opinion of one expert, and reject the other. 11 The opinion that the Board adopts 8 Torres v. Allen Family Foods, 672 A.2d 26, 30 (Del. 1995) (citing Governor Bacon Health Center v. Noll, 315 A.2d 601, 603 (Del. Super. 1974)). 9 Waddell v. Chrysler Corp., 1983 Del. Super. LEXIS 818, at *7-8 (quoting Bd. Of Public Education v. Rimlinger, 232 A.2d 98, 101 (Del. 1967)). 10 Id. at *8. 11 Bolden v. Kraft Foods, 2005 Del. LEXIS 527, at *4 (citing Reese v. Home Budget Center, 619 A.2d 907, 910 (Del.1992)). 7

8 will be considered substantial evidence for purposes of appellate review. 12 When one of the medical experts is also claimant s treating physician, the Board may give the testimony of the treating physician substantial weight, because the treating physician has greater familiarity with the claimant's condition. 13 The Board is not bound to follow the opinion of the treating physician, however, and may discount the testimony of any witness on the basis of credibility, provided it states specific, relevant reasons for so doing. 14 There is substantial evidence to support the Board s decision to adopt the opinion of Dr. Grossinger, reasoning that it more accurately reflected the evidence than Dr. Bakst s opinion. The Board provided specific and relevant reasons for following Dr. Grossinger s opinion that Woods was capable of return to work fulltime at Wal-Mart as a greeter. The Board indicated that it considered the normal diagnostic studies, lack of objective findings, and evidence that Woods may have been magnifying his subjective complaints. The Board also specifically discounted Dr. Bakst s opinion because he could not attribute Woods annular tear to the accident. The Board also rejected Dr. Bakst s alternate theory that Woods pain was caused by muscle imbalance in his lumbar region. Although the Board properly adopted Dr. Grossinger s opinion that Woods was no longer totally disabled from work, the Board erred by not considering whether Woods had a continued partial disability that affected his earning capacity. At his deposition, Dr. Grossinger testified that he agreed with the opinion of Dr. 12 Id. 13 Bradley v. State, 2003 Del. Super. LEXIS 331, at *16 (citing Diamond Fuel Oil v. O'Neal, 734 A.2d 1060, 1065 (Del.1999)). 14 Jepsen v. University of Delaware-Newark, 2003 Del. Super. LEXIS 320, at *6 (citing Turbitt v. Blue Hen Lines, Inc., 711 A.2d 1214, 1216 (Del.1998)). 8

9 Williams that Woods could return to work full-time with restrictions. 15 But he also agreed with the opinion of Dr. Nitowksi, who treated Woods one time at the Christiana Emergency Room, that Woods could return to work without restrictions. 16 Ultimately, Dr. Grossinger opined that Woods could return to work as a greeter, but he was also capable of returning to work in his previous position as a stocker. 17 The Board, however, adopted Dr. Grossinger s opinion that Woods could only return to Wal-Mart as a greeter. The greeter position can accurately be described as sedentary compared to the Woods previous position as a receiver loader supervisor. The distinction indicates that Woods continues to have some degree of disability. Accordingly, Wal-Mart has the burden to prove that Woods earning capacity will not be diminished by accepting a non-managerial, sedentary position. There is no evidence in the record to demonstrate what Woods was earning at the time of the accident compared to his present earning capacity. The only evidence presented was the testimony of Taylor, who claims she made a bona fide job offer to Woods for a greeter position. That offer, however, did not indicate the rate of pay or hours. Taylor s equivocal testimony that Woods hourly wage 15 Grossinger Dep. 47:10-24, Nov. 16, Grossinger Dep. 49: Grossinger Dep. 49:

10 would not be affected is not sufficient. 18 Wal-Mart has failed to satisfy its burden, because there is no evidence to demonstrate that Woods earning capacity will not be diminished by returning to work as a greeter. CONCLUSION For the aforementioned reasons, the decision of the Industrial Accident Board is REVERSED and the case REMANDED to the Board for further proceedings in accordance with this decision. IT IS SO ORDERED. Jan R. Jurden Judge cc: Prothonotary 18 Q: The so called bonafide job offer also discussed the return to work pay that s left black also isn t it... A: This pay was not subject to change at this time. Q: Could it have been subject to change at some time is that what you are saying? A: I mean not unless it would have been a different paying job I think [they re] on the same pay scale so his pay would have stayed the same. Hearing Tr. 49:16-20, 50:1-5, Nov. 28,