Opinion
C.A. No. 09A-05-008 PLA.
Submitted: November 17, 2009.
Decided: February 9, 2010.
On Appeal from the Industrial Accident Board of the State of Delaware in and for New Castle County, Affirmed.
Perry F. Goldlust, Esq., PERRY F. GOLDLUST, P.A., Wilmington, Delaware, Attorney for Appellant.
Dennis J. Menton, Esq., TYBOUT, REDFEARN PELL, Wilmington, Delaware, Attorney for Appellee.
I. Introduction
Before the Court is an appeal by claimant Kirt Shively ("Shively") from the May 7, 2009 decision of the Industrial Accident Board ("the Board") granting a Petition to Terminate Total Disability Benefits filed by employer Allied Systems Ltd. ("Allied").
Following a compensable work injury to his back and neck, Shively developed chronic subjective pain symptoms and a depressive disorder. On two previous Petitions to Terminate Benefits, the Board upheld his award of total disability benefits because Shively's condition presented a psychological barrier to work that rendered him completely incapacitated. This appeal concerns Allied's third petition, which the Board granted on the basis that Shively is no longer totally incapacitated for purposes of working. The Board found that Shively could work part-time in light-duty positions, and that Allied met its burden of demonstrating the availability of employment within his capacity.
In this appeal, Shively argues that the Board's decision must be reversed because it did not identify any change in his circumstances to justify the conclusion that he is no longer totally disabled. Furthermore, Shively contends that the Board's decision was unsupported by substantial evidence with regard to both his level of disability and the existence of available employment within his capacity.
The Court finds that the decision of the Board was supported by substantial evidence and free from legal error. Therefore, for the reasons discussed herein, the Board's decision is AFFIRMED.
II. Factual and Procedural Background A. Prior Petitions
Shively suffered a compensable work injury to his spine and neck while working as a truck driver for Allied in October 2000. As a result of this injury, he underwent a cervical spine fusion at C6-7 in February 2002. Shively received compensation for total disability at the applicable maximum rate of $449.60 per week, based upon his wage at the time of injury, which was $933.43 per week.
In the seven years following Shively's surgery, Allied has filed three petitions to terminate Shively's benefits. The first petition was filed on August 19, 2002 ("the 2002 petition"), and denied after a hearing. The Hearing Officer concluded that although experts for both Shively and Allied agreed that Shively was physically capable of returning to light-duty or sedentary work, he remained totally disabled because of a "definite psychological barrier" to his returning to work. The hearing officer credited the testimony of Shively and his experts that Shively experienced chronic pain that caused him to develop significant psychological problems, including clinical depression and anxiety symptoms.
Shively v. Allied Sys., No. 1176837, at 9 (Del. I.A.B. Jan. 23, 2003).
Id. at 8-10.
Allied filed its second Petition to Terminate Benefits on June 19, 2003 ("the 2003 petition"). In the two months prior to its filing, Allied conducted surveillance of Shively, which it alleged showed that Shively exhibited a greater ease of movement in his daily activities than he displayed during examinations. Allied also retained a new psychiatric expert, who opined at the hearing on Allied's petition that Shively was malingering. Shively offered testimony from Dr. Gabriel Somori, his treating pain management specialist, and Dr. Jay Weisberg, his treating psychiatrist. Drs. Somori and Weisberg reiterated much of the testimony provided on Shively's behalf at the hearing on the 2002 petition. Shively continued to experience depression and anxiety associated with chronic myofascial pain. Dr. Weisberg also testified to the results of neuropsychological testing performed at his recommendation, which indicated that Shively was experiencing memory impairment associated with his depression which affected his ability to learn new information.
Shively v. Allied Sys., No. 1176837, at 2-14 (Del. I.A.B. Dec. 22, 2003).
The Board denied Allied's 2003 petition on the basis that it had not met its burden of showing that Shively was not completely incapacitated. The Board credited the testimony of Dr. Weisberg over that of Allied's psychiatric expert and accepted Dr. Weisberg's opinion that Shively suffered from depression that exacerbated Shively's experience of pain and continued to act as a psychological barrier to his returning to work. The Board concluded with the following suggestions for both parties:
Id. at 19-20.
The January Decision [denying Allied's 2002 petition] . . . commented that, while Claimant needs motivation to "pick up and start living," termination of the total disability status was not the proper way to accomplish this goal. The Board still believes this. Claimant needs to understand that he is physically capable of doing more with his life. The Board finds Dr. Somori's suggested course of treatment appealing. Dr. Somori suggested that Claimant could return to some form of work with aggressive treatment for his depression and three to six months of vocational rehabilitation and conditioning. Of course, neither the Board nor Claimant can require Allied to provide vocational rehabilitation services. Nevertheless, Allied is permitted to offer them and, upon appropriate application, the Board could require Claimant to attend upon threat of forfeiture.
Id. at 20.
On appeal to this Court, the Board's decision was affirmed.
Allied Sys. v. Shively, 2004 WL 2419128 (Del. Super. Oct. 25, 2004).
B. The Hearing
In October 2007, Allied submitted a written offer "to provide vocational placement service to Kirt Shively with the stipulation that he agrees that he is capable of working in a sedentary capacity from a medical and psychiatric standpoint." Shively refused the offer. Subsequently, on April 11, 2008, Allied filed a third petition for review of Shively's benefits ("the 2008 petition").At a hearing on the 2008 petition, Allied introduced the deposition testimony of Dr. John Townsend, a neurologist who examined Shively on six occasions between 2002 and June of 2008. Dr. Townsend had testified on Allied's behalf at the previous hearings. Dr. Townsend expressed his opinion of Shively's physical capacity to work in terms of both objective findings and Shively's subjective complaints. Based solely upon objective findings, Dr. Townsend indicated that Shively was physically capable of working without restrictions. In terms of Shively's subjective complaints, Dr. Townsend suggested that the degree of limitation would vary with how much credit was given to Shively's subjective reports of pain. Assuming Shively's subjective complaints were fully accepted, Dr. Townsend still considered him capable of work, but only at sedentary positions. If one accepted fifty percent of Shively's complaints as credible, Dr. Townsend opined that he should be restricted to light-duty work.
Dep. Test. of Dr. John B. Townsend, III, at 23:8-11.
Id. at 43:11-44:20.
Having described this continuum of possibilities, Dr. Townsend stated that, for a number of reasons, he believed that Shively overstated his pain and his physical impairment. Dr. Townsend found no evidence of nerve injury or abnormality, muscle spasm, decreased muscle mass, or cognitive impairment. Shively exhibited greater range of motion "in the office just looking around" than upon examination. Shively takes several medications on a daily basis, including the muscle relaxant Baclofen, as well as OxyContin and Oxycodone for pain. Dr. Townsend testified that this medication regimen did not affect Shively's cognition, memory, or communication skills, and would not prevent Shively from working. The only side effect Shively reported was drowsiness. Medication-associated drowsiness can be treated with a stimulant such as Adderall, which Shively has been prescribed in the past. Dr. Townsend also reported that on the occasions when Shively complained of sleepiness at his appointments, he usually had been awake until as late as 4:00 A.M. the previous night, which Shively felt might have contributed to his drowsiness.
Id. at 21:13-24:23.
Id. at 21:16-19.
Id. at 24:9-26:4.
Id. at 16:1-5.
Dep. Test. of Dr. John B. Townsend, III, at 16:10-15; 20:9-11.
Allied also presented expert testimony from Dr. David Raskin, a psychiatrist who evaluated Shively on three occasions between June 2007 and June 2008. Dr. Raskin diagnosed Shively with dysthymic disorder, a form of long-standing depressive disorder that is marked by a depressed mood combined with other symptoms, such as loss of pleasure, sleep disorders, and concentration difficulties. While careful to emphasize that dysthymic disorder can be a serious condition, Dr. Raskin disagreed with Shively's treating psychiatrist that Shively continued to experience an ongoing major depression. Patients with major depression, he explained, "either get better and then may relapse or [they] do terrible things to themselves."
Hr'g Tr., at 118:17-119:7.
Id. at 124:14-15.
Dr. Raskin opined that from a psychiatric viewpoint, there were no contraindications to Shively resuming work, even though it would not be easy for him in view of his pain complaints, anxiety, and negative outlook. In explaining his conclusion, Dr. Raskin noted that the primary barriers to work for someone with a depressive disorder were suicidal ideation of sufficient severity that the patient might act upon it, cognitive problems, and inability to function — in other words, a patient's inability to perform the daily tasks of living. To identify possible cognitive problems related to depressive disorders, Dr. Raskin evaluates patients during interviews for signs related to mental status, such as whether the patient tracks questions, remembers, dresses appropriately, demonstrates social interaction skills, and communicates competently.
Id. at 123:4-10.
Id. at 119:12-20.
Addressing Shively's particular situation, Dr. Raskin found that other than his depressed affect and mood, Shively was able to interact "without any evidence in the mental status examination for any problems. In other words, he was able to discuss, communicate, be socially appropriate, concentrate, [and] remember." In addition, Dr. Raskin noted that Shively was able to carry out daily activities such as driving and caring for his dogs.
Id. at 117:20-118:4.
Id. at 126:1-3; see also id. at 126:15-18 (asserting that Shively's self-reported activities "[tell] me that he is not at that level of depression where his unable to care for himself or anybody else. But I already know that from my interview . . . that he possesses the cognitive skills to do that.").
Although Dr. Raskin was aware of the results of the earlier neuropsychological testing that showed memory problems, he suggested that having neuropsychological testing performed, although not contraindicated, was "very, very unusual" unless a patient had a head injury or stroke. In Dr. Raskin's view, the test administered "gets at a level which is often more fine than everyday living" and therefore doesn't "[speak] as poignantly as the clinical interview," which is a more appropriate assessment of the patient's daily functioning. Dr. Raskin found nothing in his interactions with Shively to indicate problems with information acquisition.
Hr'g Tr., at 131:12-14.
Id. at 133:1-12.
Id. at 133:5-6.
Upon review of the labor market survey (LMS) presented by Allied, Dr. Raskin opined that Shively could perform any of the jobs on the survey without psychiatric restriction. Shively's main problem, as he reported it to Dr. Raskin, was chronic pain. Although Shively's perception of pain caused him to experience anxiety and depression, those symptoms did not preclude him from working. Dr. Raskin emphasized that his conclusions were provided with regard to Shively's psychiatric state only; whether Shively's subjective experience of pain rendered him incapable of work was beyond his expertise.
Id. at 134:1-14.
Id. at 122:16-123:3.
Hr'g Tr., at 135:4-136:5.
Over objections from Shively's counsel, Stephen Kempski of Litigation Solutions testified regarding surveillance of Shively conducted in May 2007. Kempski observed Shively at his home and attempted to trail Shively when he drove away from the house in his pick-up truck. Shively apparently noticed Kempski following him, turned his truck around, and accelerated towards Kempski's vehicle, nearly forcing Kempski off the road. Kempski reported that Shively rolled his window down and made a rude hand gesture as he passed Kempski's stopped vehicle.
Id. at 107:4-16.
Allied presented Barbara Stevenson as its labor market expert. Stevenson prepared an LMS using the restrictions contained in Dr. Townsend's report, which stated that Shively was capable of full-time sedentary work if his subjective pain complaints were taken into account, but could perform more substantial work if those complaints were discounted. Stevenson also read Dr. Raskin's report, which imposed no psychiatric restrictions. Stevenson applied the Department of Labor's transferrable skills assessment to determine the transferrable skills Shively developed in his high-school education and previous employment as a truck driver. She concluded that Shively could use tools and machinery, measure cut work with accuracy, work carefully from instructions, perform routine work, use math skills for measuring and computing, and pay strict attention to set standards, guidelines, and uses.
Id. at 29:3-10; 47:10-12.
Id. at 30:1-7.
The LMS identified several potential jobs that Stevenson found appropriate for Shively's qualifications and skills, including positions as a clerk, dispatcher, cashier, bus driver, security guard, and customer service representative. Stevenson contacted potential employers with information regarding Shively's background and sedentary restrictions, and found that they would accept an application from someone fitting Shively's profile. She did not disclose to potential employers any information about Shively's psychiatric diagnosis, because employers cannot inquire about psychiatric diseases during the interview process. Stevenson did confirm to the potential employers that Shively was capable of returning to work from a psychiatric standpoint.
Id. at 56:1-10.
Id. at 44:3-4.
Shively's treating psychiatrist, Dr. Weisberg, testified on his behalf. Dr. Weisberg's opined that Shively suffers from major depression, which he described as involving more severe symptoms than dysthymic disorder. He represented that patients with active major depressions that have not responded to treatment typically do not work. Dr. Weisberg originally made a diagnosis of major depression in 2002 or 2003 and testified that Shively's condition had "not really" shown any changes or improvement since that time. Although the neuropsychological testing that showed Shively had information-acquisition problems was conducted approximately five years prior to the hearing, Dr. Weisberg believed that the results would be the same if the testing was repeated.
Hr'g Tr., at 58:13-21.
Id. at 99:5-9.
Id. at 56:1-8.
Id. at 57:10-16.
Dr. Weisberg expressed that even though Shively was not incapacitated one-hundred percent of the time and can occasionally socialize in a bar or similar environment, "he is fairly immobilized" by his depression and chronic pain. Dr. Weisberg acknowledged that depression impacts people's perception of pain, causing them to "feel more pain and . . . view themselves as being in more pain."
Id. at 75:1-3.
Id. at 63:9-12.
Hr'g Tr., at 70:3-16.
By way of example of the impact of Shively's depression, Dr. Weisberg noted that Shively had started up a romantic relationship with a woman who lived several hours away but "despite the fact that he really wanted to be with her on multiple occasions he just was not able to get himself motivated" to visit. Although Shively can perform certain household tasks such as caring for his dogs on a regular basis, Dr. Weisberg noted that such activities were ones he could do at his own leisure and pace, and that he still sometimes required outside assistance to accomplish them. The unpredictability of Shively's symptoms would, in Dr. Weisberg's opinion, present a major barrier to regular employment. He believed that an occupational therapy program might be helpful provided "that the person performing the occupational therapy would be able to understand and be able to fairly assess [Shively's] ability as far as his emotions go."
Id. at 63:12-18.
Id. at 94:5-9.
Id. at 93:14-20.
Id. at 97:20-98:7.
Shively next offered the testimony of Joel Vanini, a clinical social worker who has met with Shively on a weekly basis since 2004. Shively drives himself to these appointments, which are thirty to forty minutes away from his home. Vanini's secretary generally calls him two days before each appointment to remind him of his upcoming session.
Id. at 205:15-206:5.
Vanini described Shively as "extremely depressed" to the point that he had problems making eye contact, following through on assignments, recalling information from week to week, and grasping simple concepts. Vanini represented that it is difficult for Shively to leave the house, to the point that he struggles with basic "homework" tasks such as driving to a scenic area ten minutes from his home or playing cards at a local fire hall. She also reported that Shively at times engages in passive suicidal thinking. She denied that Shively could manage to socialize in a bar setting. Vanini based her assessment of Shively upon information he self-reports to her, as well as his behavior, his interaction with her, and his interaction with her office staff.
Hr'g Tr., at 174:19-175:26.
Id. at 196:1-4.
Id. at 188:18-20.
Id. at 193:19-194:2.
Vanini stated that she had made little progress with Shively, who she describes as "one of the saddest cases I have ever had to deal with" because usually her clients with severe depression do improve. She endeavored to involve Shively in orientation for a volunteer program at the Easter Seals, which was apparently not successful. One of the few positive developments she had seen during her time working on Shively's case is his new romantic relationship, which began online. Vanini understood that Shively has basic computer skills, but has not discussed those with him in the context of finding potential work. Vanini had not attempted to prepare Shively for returning to the work force because she perceives that "[h]e is not at that level."
Id. at 176:15-20.
Id. at 190:10-191:2.
Hr'g Tr., at 178:16-179:4.
The final witness was Dr. Somori, who opined, as he had at the prior hearings, that Shively suffered from chronic pain syndrome that could not be explained by objective findings. Dr. Somori stated that Shively's chronic pain caused his depression, and that the combination of the two conditions rendered him deconditioned. Dr. Somori's negative opinion of Shively's employability also persisted from the two earlier proceedings; he considered Shively incapable of any employment.
Dep. Test. of Dr. Gabriel J. Somori, at 6:14-24.
Dr. Somori reported that Shively could carry on certain day-to-day activities such as mowing his lawn with a tractor or caring for his dogs, but that he had to move slowly and take frequent breaks. Shively explained to Dr. Somori that his mother assisted him with certain tasks, such as lifting laundry baskets. Dr. Somori had recommended a work-hardening program in 2003 as Shively's "only hope to be able to even think about reentering the job market," but by the time of the hearing he was concerned that such programs "don't work too well . . . in a case like Mr. Shively," who had "years of deconditioning and chronic pain and depression and unemployment." In Dr. Somori's view, Shively is not a malingerer or fabricator, but he has mentally amplified his pain symptoms and shied away from an aggressive approach to rehabilitating himself "because he's scared to death it's going to make his pain worse."
Id. at 21:1-23.
Id. at 17:8-16; 19:1-10.
Id. at 24:17-25:7.
C. The Board's Decision
The Board concluded that "Claimant's depression is not debilitating and that Claimant can return to work in the positions identified in the labor market survey." Although it primarily credited the testimony of Allied's witnesses, the Board did recognize that Shively "has not worked in any capacity for ample years and as a result is deconditioned" and found that Shively's depression would not permit him to work full time. Accordingly, the Board found that Shively's capacity was limited to part-time light-duty work.In explaining its decision, the Board noted that, because no objective findings explain Shively's chronic pain, "[t]he extent to which Claimant's depression impedes his ability to function is primarily based on Claimant's subjective complaints." The Board agreed with testimony from the medical experts, particularly Dr. Townsend, that Shively overstated his pain levels and the limitations arising from his depression.
Id. at 12.
Id.
The Board accepted the testimony of Drs. Townsend and Raskin over Shively's experts. The Board explicitly rejected the opinions offered by Drs. Weisberg and Somori suggesting that Shively's depression caused impairment to his abilities to acquire information or to perform tasks requiring quick decision-making. In addition, the Board refused to credit Vanini's description of Shively's mental state and functioning, as "such depiction was disproportionately [more] morose than that of any . . . other witness. [This] line of her testimony was not credible."
Id. at 14.
The Board noted that some of the testimony from Shively's witnesses established facts — such as Shively's ability to maintain a relationship with his girlfriend, his use of the Internet, and his ability to drive to appointments up to forty minutes away from his home — that comported more with Dr. Raskin's picture of Shively as a man capable of adequate social interaction, communication, remembering, and reasoning. Moreover, the Board observed that "Claimant takes care of his dogs with regularity; such dogs require daily provision. Claimant regularly maintains his yard. Claimant treats with Dr. Somori and Dr. Weisberg routinely. Furthermore, Claimant visits with Ms. [Vanini] weekly and remembers the appointments." Although Shively had reduced visits to his girlfriend, the Board found this unpersuasive on the issue of his capacity, because other logistical considerations unrelated to his depression could greatly affect the frequency of his visits, which required two to three hours of travel in each direction.
Id. at 13.
Shively v. Allied Sys., No. 1176837, at 14 (Del. I.A.B. May 7, 2009).
Id.
The Board agreed with Drs. Townsend and Raskin that work would be beneficial to Shively. Using language that contrasts strongly with the concerns it expressed in 2003 about terminating Shively's total disability benefits, the Board explained:
Claimant's current medical treatment and work status is not helping improve his condition. Dr. Raskin testified [that] with each examination of Claimant, Claimant became more comfortable and cooperative. Dr. Townsend testified that returning to work would empower Claimant, distract Claimant from his pain and should lessen Claimant's depression. Even Dr. Somori recognized that Claimant would benefit from returning to work and referred Claimant to a work hardening program. Dr. Somori and Dr. Townsend testified, Claimant's medications would not prevent Claimant from working. Dr. Weisberg acknowledged that most patients with dysthymic disorders can work and that Claimant is not totally disabled twenty-four hours daily.
Id. at 15.
The Board noted that seven of the jobs on the LMS offered part-time employment, at wages ranging from $160.6 to $173.36. Based upon Shively's average weekly wage of $933.43, the Board calculated Shively's partial disability benefit at the maximum compensation rate of $449.60 per week.
Id.
III. Parties Contentions
Shively's appeal argues three points of error in the Board's decision. First, Shively contends that the Board should have applied the principles of res judicata and collateral estoppel to bar Allied from relitigating the facts of the case "as if nothing had been decided or accomplished by prior litigation." Shively acknowledges that neither res judicata nor collateral estoppel generally prevent the Board from reconsidering a claimant's incapacity upon petition by the employer; however, he argues that in this particular case, Allied presented no new issues of fact that would constitute evidence that his incapacity had terminated. Shively notes that his experts' opinions were accepted by the Board in the 2002 and 2003 hearings. Because Dr. Weisberg's testimony in the most recent hearing was essentially to the effect that there had been no substantial change in Shively's condition during the intervening years, Shively contends that the Board acted improperly in reopening the factual question of whether he remains totally disabled and accepting the opinion of Allied's newest expert over that of Dr. Weisberg on that issue.Moreover, Shively protests that for "most" of the nine years following his accident, he "has been subjected to Allied's unrelenting pressure of litigation." He argues that if Allied wants to carry its burden of proving that his incapacity has terminated, "it cannot go back and undo what has been done" by relitigating established facts, but instead must "present evidence that there has been a change in circumstances that opens a new issue of fact."
Id.
Id. at 22.
Next, Shively challenges the Board's decision as unsupported by substantial evidence. Shively asserts that unless the Board identifies a change in a claimant's circumstances, it is prohibited from exercising its right to choose between conflicting medical opinions. He contends that the Board's decision "acknowledge[d] that all of the medical witnesses agree that there has not been any change in circumstances in Shively's physical or psychological condition." No such change in circumstances can be inferred from the testimony of Allied's psychiatric expert, whom Shively says merely "change[d] the name of the diagnosis and report[ed] that because some people who have a dysthymic disorder can work . . .therefore, Shively can work." Furthermore, the Board's finding that Shively remembers to attend his weekly medical and psychological appointments conflicts with testimony from Ms. Vanini that she has to remind him of his appointments.
Id. at 23.
Id.
Id. at 23-24 (emphasis in original).
Shively's final claim relates to Allied's evidence regarding whether a stable market exists for work commensurate with his qualifications and training. Shively contends that the labor market survey proffered by Allied fails to address Shively's ability to secure and retain work, which he considers doubtful at best in view of the Board's acknowledgement that he is "dejected, hopeless, miserable, and unmotivated" because of his depression. Shively contends that the LMS was conducted based solely upon the physical limitations proposed by Dr. Townsend, and does not account for how his psychological condition limits his employability.
In response, Allied rejects the notion that the Board must make a threshold finding that there has been a "change in circumstances" before considering a petition to terminate benefits. Allied therefore contends that the Board properly considered its 2008 petition and concluded, based upon substantial evidence, that Shively was no longer totally disabled. Allied argues that the Board, in its role as fact-finder, was free to accept the testimony of its witnesses over Shively's, even though it previously accepted the opinions of Drs. Weisberg and Somori.
Allied also argues that by presenting the LMS and the testimony of Ms. Stevenson, it demonstrated the availability of regular employment within Shively's capabilities. In fact, Allied suggests that it presented evidence well beyond its burden. Once Allied established that Shively was not completely incapacitated, the burden shifted to Shively to show either prima facie displaced worker status or reasonable efforts to secure employment before Allied was required to demonstrate the availability of employment; Allied argues that it did so, despite the fact that Shively presented no evidence that he was a displaced worker or had made reasonable attempts to find employment that were thwarted by his injury.
IV. Standard and Scope of Review
Upon appeal from a decision of the Board, this Court's function "is confined to ensuring that the Board made no errors of law and determining whether there is `substantial evidence' to support the Board's factual findings." Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The "substantial evidence" standard requires "more than a scintilla but less than a preponderance of the evidence."The Court "does not weigh the evidence, determine questions of credibility, or make its own factual findings." These functions are reserved exclusively for the Board. The Court must afford "a significant degree of deference to the Board's factual conclusions and its application of those conclusions to the appropriate legal standards." In reviewing the evidence, the Court must consider the record "in the light most favorable to the prevailing party below." The Court reviews questions of law de novo to determine "whether the Board erred in formulating or applying legal precepts."
Hall v. Rollins Leasing, 1996 WL 659476, at *2 (Del. Super. Oct. 4, 1996) (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
Giofre v. C.G. Capital Group, 1995 WL 264585, at *3 (Del. Super. Apr. 17, 1995), aff'd, 670 A.2d 1338 (Del. 1995) (TABLE).
Bermudez, 2006 WL 2382793, at *3 (citing 29 Del. C. § 10142(d)).
Id.
Id.
V. Analysis A. Allied's Petition Is Not Barred By Res Judicata or Collateral Estoppel
Section 2347 of the Workers' Compensation Act authorizes the Board to review compensation awards, and sets forth how and when such reviews can occur:
On the application of any party in interest on the ground that the incapacity of the injured employee has subsequently terminated, increased, diminished or recurred or that the status of the dependent has changed, the Board may at any time, but not oftener than once in 6 months, review any agreement or award.
On such review, the Board may make an award ending, diminishing, increasing or renewing the compensation previously agreed upon or awarded, and designating the persons entitled thereto, subject to this chapter, and shall state its conclusions of facts and rulings of law.
The Board's ability to review prior awards raises the specters of res judicata and collateral estoppel. A wealth of prior case law explains the limited applicability of these doctrines to § 2347 proceedings.
After judgment has been entered in a suit, the doctrine of res judicata prohibits a party to that action from bringing a second suit based upon the same cause of action against the same parties. The related doctrine of collateral estoppel "precludes a party to a second suit involving a different claim or cause of action from the first from relitigating an issue necessarily decided in a first action involving a party to the first case." Res judicata will bar an administrative agency from "reconsidering conclusions of law previously adjudicated," while collateral estoppel prevents "relitigation of issues of fact previously adjudicated."
Betts v. Townsends, Inc., 765 A.2d 531, 534 (Del. 2000) (citing M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 520 (Del. 1999)).
One Va. Ave. Condo. Ass'n of Owners v. Reed, 2005 WL 1924195, at *10 (Del. Ch. Aug. 8, 2005). Collateral estoppel will bar consideration of an issue if the Court determines that the following conditions are met:
(1) The issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.Betts, 765 A.2d at 535 (quoting State v. Machin, 642 A.2d 1235, 1239 (Del. Super. 1993)).
Betts, 765 A.2d at 534.
Res judicata prohibits the Board from retroactively changing a prior decision or reviewing a prior award for correctness. It is well-established, however, that res judicata does not bar the Board's exercise of its authority under § 2347 to review a prior agreement or award "on the ground that the incapacity of the injured employee has subsequently terminated, increased, diminished or recurred or that the status of the dependent has changed." The Delaware Supreme Court provided a helpful example of how the doctrine affects the permissible scope of the Board's review in Betts v. Townsends, Inc.:
Wyatt-Helie v. Playtex Apparel, 2006 WL 2904459, at *4 (Del. Super. Sept. 6, 2006).
See Betts, 765 A.2d at 534 ("Where the Board is asked to reconsider the incapacity or status of a claimant based on one of these specifically delineated changes in circumstances, the doctrine of res judicata is inapplicable."); Harris v. Chrysler Corp, 541 A.2d 598, 1988 WL 44783, at *1 (Del. 1988) (TABLE) (stating that it is "clearly the law that the doctrine of res judicata is not a bar to the Board's exercise of its authority conferred by 19 Del. C. § 2347 to review, modify or terminate previous awards upon proof of subsequent change of condition"); see also Nationwide Ins. Co. v. Wolos, 2006 WL 2458466, at *4 (Del. Super. Aug. 23, 2006).
[S]uppose the Board found that a claimant was involved in an industrial accident that caused permanent partial disability. Subsequently, the employer seeks to terminate benefits on the basis that the claimant is no longer permanently disabled. In that case, res judicata would prevent the Board from revisiting the issue of causation. Under § 2347, however, the Board would be free to reconsider whether the claimant remained permanently partially disabled because it has statutory authority to determine if the incapacity of the employee has subsequently terminated.
Betts, 765 A.2d at 534 n.*.
The Board's § 2347 power of review was intended to "avoid the crystallizing effects of the doctrine of res judicata in relation to awards, whether as against the employer or the employee." Thus, when the Board awards compensation, its decision is considered "an adjudication as to the condition of the injured [worker] at the time it is entered, and conclusive of all matters adjudicable at that time, but it is not an adjudication as to the claimant's future condition and does not preclude subsequent awards or subsequent modifications of the original award." A contrary rule would render § 2347 meaningless.
A.W. Gans, Annotation, Workmen's Compensation: Time and Jurisdiction for Review, Reopening, Modification, or Reinstatement of Award or Agreement, 165 A.L.R. 9 (quoting Gange Lumber Co. v. Rowly, 326 U.S. 295, 306 n. 15 (1945)).
A.M. Swarthout, Annotation, Res Judicata as Regards Decisions or Awards Under Workmen's Compensation Acts, 122 A.L.R. 550.
Harris, 1988 WL 44783, at *1; Atkinson v. Del. Curative Workshop, 1999 WL 743447, at *3 (Del. Super. May 19, 1999).
At the most recent hearing in Shively's case, the issue brought before the Board by Allied's 2008 petition was whether Shively's incapacity had diminished or terminated. Thus, the Board's inquiry focused on Shively's condition at the time of the 2008 petition. This topic, which necessarily could not have been adjudicated at the 2002 or 2003 petition hearings, was the subject of conflicting expert testimony. In the previous petition proceedings, the Board accepted the testimony of Drs. Weisberg and Somori when those doctors offered their then-current opinions as to Shively's status. In doing so, the Board did not commit itself to accepting Drs. Weisberg and Somori's opinions as to Shively's capacity for all future petitions. If it had, the Board's "review" of any future petition would be a remarkably one-sided affair. Therefore, in rendering its decision on Allied's 2008 petition, the Board was free to exercise its usual discretion to select which expert opinions it would accept or reject regarding Shively's current status. The Board's exercise of this discretion did not run afoul of either res judicata or collateral estoppel principles.
Next, Shively suggests that, as a practical matter, "[t]o allow Allied to re-litigate all of the facts time after time places an unwarranted strain on any claimant's time, money, and stamina." Shively accuses Allied of subjecting him to the "unrelenting pressure of litigation" for most of the nine years since his accident.
Appellant's Opening Br., at 19.
As a starting point, the Court agrees with Allied that its three Petitions to Terminate Benefits filed during that nine-year period do not, objectively speaking, constitute an "unrelenting pressure." Moreover, to the extent that Shively's arguments raise theoretical concerns about employers using frivolous and repetitive § 2347 petitions to vex injured employees, the Court notes that the Workers' Compensation Act contains numerous checks against this possibility. One major safeguard is contained within the very language of § 2347, which only permits a petition to be filed once every six months. Placing the burden on the petitioning party to demonstrate that a change in circumstances has occurred provides additional protection. In addition, if the Board concludes that the employee remains entitled to compensation, the Worker's Compensation Act provides for awards of medical witness fees and attorneys' fees to the claimant, thereby minimizing the financial burden and discouraging employers from abusing § 2347 petitions to harass injured employees. Thus, the statutory scheme by design protects employees to the extent possible from vexatious petitions to terminate or modify compensation awards, and attempts to alleviate the financial burdens that would otherwise be imposed upon injured employees who are entitled to compensation.
See 19 Del. C. §§ 2322(e), 2320(10).
Turning from the general to the specific, Shively has identified a number of particular facts that he contends were decided by the Board upon Allied's 2002 and 2003 petitions and cannot be relitigated. Most of these facts or conclusions — such as the causation of Shively's psychological injury and the fact that his physical injuries did not in themselves render Shively incapacitated — were not contested in the most recent hearing. Although there is necessarily some evidentiary overlap between the hearings, to the extent testimony relevant to these topics was provided in the most recent hearing, it was by way of providing background, not "relitigation."
One of the items on Shively's list of facts, however, bears particular exploration in light of the above discussion of res judicata and collateral estoppel. Upon the 2003 petition, as Shively correctly recounts, the Board accepted "Dr. Weisberg's opinion [that there were psychological barriers to Shively's working] over Dr. Kaye's opinion that Shively was malingering and exaggerating his pain." Shively's brief then suggests, "That issue of fact has been resolved and should not be a subject [of] constant relitigation." The current litigation addressed, at length, the question of whether Shively was overstating his symptoms and his functional limitations at the time of the 2008 petition and the hearing it occasioned. This is a distinct factual question from the one before the Board in 2003. The Board's decision denying the 2003 petition did not foreclose it from ever concluding, upon future petitions, that Shively is exaggerating his subjective complaints and limitations; res judicata and collateral estoppel only prevent the Board from revisiting the merits of its previous decision and, for example, deciding in retrospect that Shively was deliberately malingering in 2003. The decision currently under review contains no such misstep.
Appellant's Opening Br., at 21.
B. A Finding of Changed Circumstances Is Not A Prerequisite to Review
In his appeal, Shively contends that "[t]he threshold question that the Board does not answer is whether there has been a change in circumstances. That burden must be overcome before the Board can exercise its right to choose between conflicting medical opinions." This assertion, which is unsupported by any case citations, reverses the necessary order of analysis. Upon a § 2347 review, whether a change in circumstances has occurred is not a "threshold question," but the central inquiry. In other words, the criteria upon which § 2347 authorizes the Board's review — the termination, increase, diminishment, or recurrence of incapacity, or the change in status of a dependent — are "changes in circumstances." In a case such as this one, the Board cannot determine whether a change in circumstances has occurred without first weighing and choosing between the conflicting expert testimony.
Appellant's Opening Br., at 23.
See, e.g., Betts, 765 A.2d at 534 (stating that "Under 19 Del. C. § 2347, the Board has statutory authority to review a prior agreement or award `on the ground that the incapacity of the injured employee has subsequently terminated, increased, diminished or recurred or that the status of the dependent has changed. . . .' Where the Board is asked to reconsider the incapacity or status of a claimant based on one of these specifically delineated changes in circumstances, the doctrine of res judicata is inapplicable." (emphasis added)).
Shively similarly attacks Allied's petition as not "predicated on the change of circumstances but on Allied's change of medical expert and the hope that a different board will not view Shively's depression as real enough to be a bar to employment." But simply because Drs. Weisberg and Somori felt that neither Shively's symptoms nor his capacity had changed since the 2003 petition did not mean that the Board was obligated to accept their conclusions. Nor was it necessary for Allied or the Board to pinpoint a single event, treatment, or time period when Shively transitioned from total to partial disability. The Board's task was only to weigh the evidence and determine whether Allied met its burden of demonstrating based on new evidence that Shively was no longer totally incapacitated. The Board determined that Allied had met that burden, and as will be discussed in the next section, its decision was supported by substantial evidence.
Appellant's Opening Br., at 22.
Further, Shively mischaracterizes Allied's 2008 petition by suggesting it was a gambit to present a new expert to new Board members in hopes of obtaining a different result from "unchanged" facts and circumstances. To the contrary, both Allied's understanding of Shively's claimed injury and the facts of his condition have developed considerably since the 2002 and 2003 petitions were decided. Dr. Raskin's testimony was quite different from Dr. Kaye's testimony from the 2002 and 2003 petition hearings. Dr. Kaye accused Shively of intentionally malingering for gain, and denied that Shively suffered from any depressive disorder. Dr. Raskin, by contrast, diagnosed Shively with dysthymic disorder, which he acknowledged can be "very painful" and difficult to treat. At the 2008 petition hearing, Drs. Raskin and Townsend testified that even accepting some or all Shively's subjective complaints, as well as the existence of a long-term depressive disorder, the severity of those conditions no longer renders him totally incapacitated from work.
Hr'g Tr., at 178:17-19.
In addition, the passage of time has given rise to new evidence regarding Shively's capacity for work. In its decision denying Allied's 2003 petition, the Board emphasized that there is a distinction between "total disability" and "utter helplessness." Thus, the Board observed, an employer must show more than that "an employee can occasionally do something productive" to show that his total incapacity has ended; rather, the employer "must show that the employee is capable of working on a regular basis." The evidence at the prior hearings indicated that Shively could perform limited daily activities such as caring for his dogs, but the Board specifically noted that Allied's surveillance did not find him "doing strenuous activities such as mowing the lawn or being engaged in recreational activities."
Shively v. Allied Sys., No. 1176837, at 16 (Del. I.A.B. Dec. 22, 2003) (citing M.A. Hartnett, Inc. v. Coleman, 226 A.2d 910, 913 (Del. 1967)).
Id. at 16-17.
Id. at 18.
The hearing on Allied's 2008 petition established that in the years since the Board made those observations, Shively has managed on a long-term basis to help with basic household chores such as laundry, to provide basic care for multiple dogs, to use a tractor-mower, to attend scheduled appointments, to take walks around his property, to drive significant distances, to use basic computer skills, and to socialize both online and face-to-face. Despite Dr. Weisberg's concerns that Shively's depression and pain might prevent him from being relied upon to keep consistent hours, Shively has been attending weekly sessions with Vanini at a fixed day and time since 2004. Although Shively's daily life may be more limited and painful than that of a person in full health, his ability to handle this level of activity consistently over the six years since the 2003 petition constitutes new and relevant evidence, as do the increases in Shively's efforts to drive and socialize.
Shively contends that the fact that Vanini's office calls him with appointment reminders contradicts the Board's conclusion that he does not experience memory problems in his daily life. Such reminder calls are a common courtesy in many offices, however, and nothing in the record suggests that they were necessary to prevent Shively from missing appointments due to memory lapses. Furthermore, Vanini testified that her office placed the reminder calls approximately forty-eight hours before his sessions, indicating that Shively was able to remember and track his appointments for at least two days beforehand.
C. Substantial Evidence Supported the Board's Determination That Shively Was No Longer Totally Incapacitated
Having concluded that the Board was not prevented by res judicata, collateral estoppel, or a "threshold" change-of-circumstances inquiry from reviewing Shively's compensation award, the Court now turns to the question of whether its decision that Shively's total disability had ended was supported by substantial evidence.
An employer seeking modification or termination of a total disability award pursuant to § 2347 bears the initial burden of demonstrating that the employee is no longer totally incapacitated with regard to work. If the employer makes a satisfactory showing, the burden shifts to the employee to demonstrate that he is a "displaced worker."
Torres v. Allen Family Foods, 672 A.2d 26, 30 (Del. 1995).
Id.
A displaced worker is one who suffers from a compensable injury that renders him so handicapped that he will "no longer be employed regularly in any well known branch of the competitive labor market" and could only obtain steady employment if a job is specially created for him. The employee may rely upon a "degree of obvious physical impairment, coupled with other factors such as . . . mental capacity, education, training, or age" to establish prima facie displaced worker status. If the employee does not establish prima facie displaced status in this manner, he may demonstrate that he is a displaced worker by showing that he made reasonable efforts to obtain employment that failed because of his injury. However, a claimant whose treating physician has placed him under a "no work" order is entitled to rely upon that doctor's order and will be excused from looking for employment unless and until the Board deems him not incapacitated; accordingly, he will automatically be considered a displaced worker as a matter of law. Provided the employee qualifies for displaced worker status, the burden returns to the employer to show that regular employment is available within the claimant's capabilities.
Id. (quoting Ham v. Chrysler Corp., 231 A.2d 258, 261 (Del. 1967)).
Franklin Fabricators v. Irwin, 306 A.2d 734, 737 (Del. 1973).
Torres, 672 A.2d at 30 (quoting Franklin Fabricators, 306 A.2d at 737).
Sabo v. Pestex, Inc., 2004 WL 2827902, at *2 (Del. Super. Dec. 7, 2004), aff'd, 892 A.2d 1084, 2006 WL 250505 (Del. Jan. 31, 2006) (TABLE); see also Clements v. Diamond State Port Corp., 831 A.2d 870 (Del. 2003); Gilliard-Belfast v. Wendy's, Inc., 754 A.2d 251, 254 (Del. 2000).
Sabo, 2004 WL 2827902, at *1.
Where the Board is confronted by conflicting expert opinions both supported by substantial evidence, it may accept the testimony of one expert over the other. Similarly, the Board is entitled to accept an expert's opinion in whole or in part and to consider the credibility of the claimant's subjective complaints to the extent they form a basis for those opinions.
Downes v. State, 623 A.2d 1142, 1993 WL 102547, at *2 (Del. Mar. 30, 1993) (TABLE); Glanden v. Land Prep, Inc., 918 A.2d 1098, 1103 (Del. 2007).
Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009); Osborne v. Two Farms, Inc., 2006 WL 1915511, at *3 (Del. Super. June 27, 2006). See also Clements v. Diamond State Port Corp., 831 A.2d 870, 878 (Del. 2003); Okafor v. Best Buy, 2006 WL 2997480, at *4 (Del. Super. Aug. 31, 2006) ("[W]hen an expert's opinion is based in large part upon the patient's recital of subjective complaints and the trier of fact finds the underlying facts to be different, the trier is free to reject the expert's testimony.").
The Board accepted the testimony of Drs. Townsend and Raskin to conclude that Allied satisfied its initial burden of showing that Shively was no longer totally disabled. This decision was supported by substantial evidence. As to Shively's physical capabilities, Dr. Townsend and Dr. Somori were essentially in accord as to the lack of objective findings to explain Shively's perception of pain. The difference between their opinions as to Shively's work capacity arose from the differing weight they assigned to Shively's subjective complaints. The Board properly considered Shively's credibility in assessing these different expert opinions and in finding Dr. Townsend more credible. Dr. Townsend noted that Shively demonstrated greater range of motion when he felt he was not under observation than during his evaluation. The Board noted another discrepancy between Shively's reports and behavior to his physicians and his real-world capabilities when it observed that he sat for more than two-and-a-half hours without changing positions during the hearing, even though he had told Dr. Somori that he had problems sitting due to his pain.
Shively, No. 1176837, at 20 (Del. I.A.B. May 7, 2009).
With regard to Shively's psychiatric condition, the Board accepted Dr. Raskin's diagnosis of dysthymic disorder, which he explained as a more appropriate diagnosis than major depression, given that Shively's depression has persisted for years but has not been marked by any incidents of total psychological debility requiring hospitalization or other drastic intervention. Dr. Raskin also offered support for his conclusion that Shively's depressive disorder did not incapacitate him for purposes of work. Dr. Raskin assessed Shively as capable of reasoning, communicating, remembering, and acting in a socially-appropriate manner. These observations, and the Board's conclusion, were supported by additional evidence from several witnesses — including Ms. Vanini and Dr. Weisberg — that indicated Shively had been able to engage in household work and socializing, albeit with some self-imposed restrictions and at a tempered pace.
D. Allied Sufficiently Demonstrated Available Employment Within Shively's Capabilities
Although the Board's decision does not detail whether it concluded that Shively was a displaced worker, it appears that both Dr. Somori and Dr. Weisberg placed him under a "no work" order, which would relieve him of any obligation to seek employment prior to the Board's decision. Nevertheless, even presuming that Shively would be considered displaced, Allied met the burden of producing evidence of employment opportunities within Shively's capabilities that was accepted by the Board.Shively challenges Allied's LMS because it does not account for his ability to obtain employment, the effect of his depression symptoms on his ability to function, or his use of medications that would show up in drug screenings. The testimony offered at trial contradicts these assertions and provides substantial evidence for the Board's finding that Allied demonstrated the existence of available employment suited to Shively's capabilities and qualifications.
Dr. Raskin stated that Shively's depression would not prevent him from being able to perform any of the jobs on the LMS. Contrary to Shively's contentions, Dr. Raskin also provided more than just a generalized statement of the capacity of people with dysthymic disorder to work. His testimony explicitly addressed Shively's particular situation. He felt that the memory problem suggested by Dr. Langan's earlier neuropsychological testing "wouldn't come out necessarily in an interview or in a social situation," and that Shively was capable, from a psychiatric standpoint, of taking on any of the jobs in the LMS, based upon his cognitive function and interpersonal skills. Dr. Raskin noted that although Shively was not overly animated, he makes eye contact in conversation, and nothing about him would make him unsuitable for positions involving interaction with the public. While Shively's depression and pain create a "motivation problem," Dr. Raskin described this as an appropriate area of treatment for Shively's psychiatrist and pain management specialist, not a barrier to employment.
Hr'g Tr., at 147:18-148:16; see also id. at 134:4-6 ("From a psychiatric standpoint just from the point of view of depression and its impact on his ability to interact with people, communicate etc. [Shively is capable of fulfilling the requirements of the jobs on the LMS].").
Id. at 161:6-10 ("I mean all I know is he could interact with the public in terms of talking, communicating, interacting. I can't tell you . . . I mean there isn't anything about him that I have seen that would indicate he couldn't do that. He is not as animated as you for example [referring to Claimant's counsel]. But animation is not always a good trait.").
Id. at 160:4-15.
Dr. Townsend testified that Shively's medications did not affect his ability to work. After confirming that the medications had not resulted in any problems upon clinical evaluation other than complaints of sleepiness, which could be treated with a stimulant, Dr. Townsend noted that Shively had no cognitive side effects from the medications. He then stated that the medications did not affect Shively's ability to work:
Q: So even though the medication usage that you see with Dr. Somori with these narcotics, would you agree they're in the moderate range? [Shively], nevertheless, can work. There's no contraindication for him to work?
A: No. If the patient is on the medications and he's doing well [on them], there's no reason why he couldn't work.
Dep. Test. of Dr. John B. Townsend, III, at 24:9-25:5.
Shively's medications are legally prescribed and do not limit his functioning. His doses have been stable, and Dr. Somori denied that he has engaged in abusive or drug-seeking behavior. Dr. Somori also testified that Shively drove, was always alert and oriented at appointments, and did not show any neurological deficits. Shively's use of medication, in short, is not the type of drug use for which employers engage in drug screening. Moreover, this is not a case in which the employer's LMS disregarded reports from the claimant or his physicians of serious cognitive side effects from medications; Stevenson's LMS did not list any drug-related restrictions on Shively's functioning because there were none imposed by the medical experts.
To the extent Shively's prescription narcotics might reduce his employability in the bus driver position — a possibility the Court will consider even though Shively never raised it on cross-examination of Stevenson, nor with any other witness at the hearing — the LMS identified six other jobs with part-time positions available that did not involved driving or operating other machinery. Thus, the Board's conclusion that Allied had demonstrated available employment within Shively's capacities remains supported by substantial evidence.
See Hudson v. Am. Mirrex, 2008 WL 2955499, at *4 (Del. Super. July 23, 2008) (holding that the Board did not err in accepting employer's LMS that did not include any limitations based on medication usage, because medical expert testimony established that the non-narcotic medication claimant was prescribed for his work-related injury did not impair claimant's capacity).
Shively also contends that he had no way of knowing how Stevenson "conducted the search and what, if anything, she told the prospective employer," particularly because her "file" was never produced. As part of the discovery process, Allied produced copies of Stevenson's LMS on three different occasions in advance of the hearing. The LMS contains information about each potential employer, including: the employer's name, telephone number, and address; the date of Stevenson's contact; a description of the position identified as a possible placement for Shively; and the duties, prerequisites, environment, and physical demands associated with each position. Stevenson testified as to what she told the employers regarding Shively's physical limitations based on Dr. Townsend's report. The Board accepted Dr. Raskin's testimony regarding the lack of need for psychiatric restrictions, and Stevenson testified that she did not suggest any to the employers. The LMS cannot be considered flawed for failing to present employers with restrictions beyond what the Board concluded were necessary.
Shively cross-examined Stevenson regarding her conversations with employers, and asked both Stevenson and other Allied witnesses about the requirements of several of the LMS positions, which were identified for him in advance of the hearing. Shively presents no indication of what additional avenues he wished to explore based upon Stevenson's underlying file, nor what prejudice he has suffered for not having had access to it before the hearing. Stevenson testified that she never received notice of a discovery request for her file. If Shively felt that Allied had wrongfully withheld production of the file, he could have filed a motion to compel under Industrial Accident Board Rule 11(C) and litigated the issue.
Although the sequence of events is unclear because this discovery issue was not raised until the hearing, Shively's attorney had access to Stevenson's file before questioning began and was apparently familiar with its contents during the hearing.
Shively had ample opportunity to explore how Stevenson generated the LMS, and in fact did so at the hearing. The LMS accurately reflected the physical restrictions described by Dr. Townsend, as well as Dr. Raskin's opinion that no psychiatric restrictions were necessary. The Board was therefore entitled to rely upon the LMS. Based upon the LMS and the testimony offered by Allied's witnesses, substantial evidence supports the Board's conclusion that Allied established the availability of employment suited to Shively's background and abilities.
E. The Board's Decision Was Not Fatally "Ambivalent" and Did Not "Order" Shively to Work
Finally, Shively raises several issues that are essentially about the tone of the Board's decision. Shively considers the Board's decision contradictory and ambivalent because it deems him capable of obtaining and retaining employment despite describing him as introverted, depressed, and miserable. He suggests that the Board erred in basing its decision on Dr. Townsend's testimony that Shively should be "encouraged" to be "actively engaged" in work to distract him from his pain. Shively asserts that Dr. Townsend's testimony is meaningless in his case because he is not being "encouraged," but rather "ordered" to work.
With no intent to be glib, the Court observes that introversion, depressed mood or affect, and generalized miserableness are not automatic barriers to employment, including in positions involving contact with the public. The Board's decision took these facets of Shively's personality into account as symptoms of dysthymic disorder — indeed, the Board's acknowledgement of them is the source of Shively's argument — and concluded that he could nevertheless secure part-time employment, based upon his engagement at the hearing and extensive testimony describing his daily life, his ability to behave and interact in socially-appropriate ways, and the employability of people with dysthymic and other depressive disorders.
Furthermore, the Board did not "order" Shively to work. It found, based upon substantial evidence, that he is capable of part-time light-duty work, and it adjusted his compensation award to reflect this conclusion. In reaching its decision, the Board was permitted to consider expert opinions that work was not contraindicated in Shively's case, and might prove beneficial. It is clear that the benefits of "encouraging" work were not the sole basis of the Board's decision, however; it also considered Shively's physical and cognitive functioning, demeanor, activities, and interactions, all of which supported his capacity for work within the limitations described by the Board.
The members of the Board sat through many hours of testimony describing Shively's experience of chronic pain and his depressive disorder. Provided the Board's decision is based upon substantial evidence and free from legal error, it is not objectionable for the Board members to express sympathy for the claimant's condition and hope that their decision may contribute to the claimant's well-being, particularly where multiple expert witnesses have predicted that work could improve the claimant's future capacity and prognosis. In this case, the Court shares the Board's sentiments as it affirms the Board's decision.
VI. Conclusion
For the foregoing reasons, the decision of the Board granting Allied's Petition to Terminate Total Disability Benefits is hereby AFFIRMED.
IT IS SO ORDERED.