Opinion
C.A. No. 06A-02-003.
Submitted: June 15, 2006.
Decided: September 6, 2006.
Upon Consideration of Appellant's Appeal from the Decision of the Industrial Accident Board AFFIRMED
Walt F. Schmittinger, Esq., Schmittinger Rodriguez, P.A., Dover, Delaware, Attorney for Claimant-Below, Appellant.
Linda L. Wilson, Esq., Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, Delaware, Attorney for Employer-Below, Appellee.
OPINION
Claimant, Lorie Wyatt-Helie, brings the present appeal from the decision of the Industrial Accident Board, which terminated Claimant's total disability benefits, and awarded partial disability benefits based on a labor market survey. For the following reasons, the Board's decision is AFFIRMED.
FACTUAL AND PROCEDURAL HISTORY
Claimant, Lorie Wyatt-Helie, has been receiving total disability benefits, since she injured her right shoulder on March 18, 2002, while working for Playtex Apparel ("Playtex"). Claimant has undergone two surgeries on her right shoulder, which provided minimal relief. As a result of her shoulder injury, Claimant also has difficulty using her right arm. Claimant treats with orthopaedic surgeon, Brian Galinat, M.D., for her shoulder injury. She continues to experience pain, which she treats with Tylenol.Dr. Galinat, has diagnosed her with snapping scapula syndrome. Dr. Galinat opined that Claimant's condition has improved since the shoulder surgeries, but she does not have normal functioning of her right arm. Dr. Galinat restricted Claimant to working twenty hours per week, and does not believe Claimant can use her right arm for any gainful employment due to her subjective complaints.
Id. at 6.
Id. at 6, 7.
Id. at 4, 7.
Claimant was also examined by orthopaedic surgeon, Robert Riederman, M.D., on behalf of Playtex. Dr. Riederman opined that Claimant is capable of working full-time with light duty restrictions for her right shoulder. Dr. Riederman also reviewed the labor market survey, and believes that Claimant is capable of performing all of the fifteen jobs listed.
Id. at 4.
Id. at 5.
Id. at 5.
The labor market survey was prepared by vocational rehabilitation specialist, Barbara Stevenson, on behalf of Playtex. Stevenson compiled a list of jobs based on Claimant's medical restrictions, according to Drs. Riederman and Galinat, Claimant's high school education, and work experience. Stevenson also tried to find jobs that did not require Claimant to use her right arm.
Id. at 5.
Id. at 5.
Id. at 5.
On January 27, 2005, Claimant was involved in an automobile accident that injured her neck. She treats with Dr. Janine Islam for her neck injury and for sciatica, which is not related to either the work accident or the automobile accident. Claimant claims that she can differentiate her neck pain from her shoulder pain.
Id. at 3.
Id. at 3.
Id. at 3.
On August 19, 2005, Playtex filed a Petition for Review to terminate Claimant's total disability benefits. In December 2005, the parties settled Claimant's permanent impairment claim for twelve and a half percent permanent impairment to her right upper extremity.
Id. at 2.
Id. at 2.
Claimant was released to work by Dr. Galinat on December 2, 2005. Shortly thereafter, claimant began working part-time at Betsy Ross Pizza, as a cashier and hostess. However, her job duties, which included answering the telephone and entering orders into the computer, exacerbated her shoulder pain. Claimant left her position at Betsy Ross Pizza after a month. At the time of the hearing in February 2006, Claimant was working part-time as a hostess at Benny's Junction, earning $7.00 per hour.
Id. at 9.
Id. at 3.
Id. at 3.
Id. at 3.
DECISION OF THE INDUSTRIAL ACCIDENT BOARD
The Board held that Claimant was no longer totally disabled. Noting that both Dr. Galinat and Dr. Riederman agreed that Claimant is able to work in some capacity, the only issues the Board addressed were (1) when the period of total disability ended, and (2) the extent, if any, of Claimant's present disability.Claimant was released for work on December 2, 2005 by her treating physician, Dr. Galinat. Because it was reasonable for Claimant to rely on her doctor's advice, the Board found that Claimant's total disability ended on the date that Dr. Galinat determined that Claimant could go back to work.
Although Dr. Galinat and Dr. Riederman agreed that Claimant is able to return to work, they disagreed as to the extent of Claimant's present disability. Dr. Galinat opined that Claimant could only return to work part-time, but Dr. Riederman believed that Claimant could work full-time. The Board adopted Dr. Riederman's opinion. The Board found it significant that Dr. Galinat was unaware of Claimant's intervening automobile accident, and he only treated her twice in the year 2005.
In support of Dr. Riederman's opinion, the Board was persuaded by Claimant's neurological examination of her right upper extremity, which was normal, and Claimant's subjective pain complaints with extreme right shoulder motion. The Board also considered that, for the preceding five months, Claimant has only treated her pain with Tylenol. The Board held that Claimant's pain complaints, rated as 7 or 8 out of 10, were not credible, since Claimant was not treating her pain with prescription medication. Finally, the Board relied on Dr. Galinat's testimony that returning to work would benefit Claimant, and his hope that she would return to full-time work.
The Board also did not consider Claimant to be a displaced worker, as she did find a job. The findings of the labor market study, which indicated that Claimant is capable of earning at least $344.73 per week with her physical restrictions, were also accepted by the Board. Dr. Riederman's opinion that Claimant is physically capable of performing all of the full-time jobs listed on the survey was also adopted.
Having determined that Claimant is not totally disabled, and not a displaced worker, the Board found that Claimant was partially disabled, as she continues to have a disability that affects her earning capacity. The Board rejected Claimant's position that her present job, earning $7 per hour, is a better indicator of her actual earning capacity. While giving Claimant credit for finding a job, the Board found that Claimant is not limited to her present wage, and she must find a job that reflects her true earning capacity.
For the period after February 23, 2006, the date of the Board's decision, Claimant's partial disability was determined to be $257.24 per week, which equals a compensation rate of $171.49 per week. This figure was based on Claimant's earnings at Playtex, $601.97, reduced by $344.73, the amount Claimant can earn, according to the labor market survey.
The Board also awarded Claimant attorneys' fees and medical expert fees, which Claimant is not disputing on appeal.
STANDARD OF REVIEW
On appeal, this Court reviews a decision of the Industrial Accident Board to determine whether the Board's decision was supported by substantial evidence and free from legal error. Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In addition, substantial evidence is "more than a scintilla but less than a preponderance." On appeal, this Court does not have the "authority to weigh evidence, determine the credibility of witnesses or make independent factual findings." 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." Questions of law are reviewed de novo.
Methodist Country House v. Wright, 2005 Del. Super. LEXIS 167, at *5.
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) ( quoting Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966)).
Id. ( quoting Cross v. Califano, 475 F.Supp. 896, 898 (D. Fla. 1979)).
State v. Dalton, 878 A.2d 451, 454 (Del. 2005) ( citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
Bolden v. Kraft Foods, 2005 Del. LEXIS 527, at *5 (Del.Supr.) ( citing DiGiacomo v. Bd. of Public Educ., 507 A.2d 542, 546 (Del. 1986)).
Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998) ( citing State v. Cephas, 637 A.2d 20, 23 (Del. 1994)).
DISCUSSION
Claimant argues that the Board erred in accepting the opinion of Dr. Riederman over Dr. Galinat in determining Claimant's disability status. Claimant maintains that the Board's decision to adopt Dr. Riederman's opinion is not supported by substantial evidence. Therefore, to the extent that the labor market survey was based on Dr. Riederman's opinion, the Board's acceptance of the labor market survey was also in error.The Board has the discretion to accept one expert opinion over another, if the decision is supported by substantial evidence. The opinion that the Board ultimately adopts will be considered "substantial evidence for purposes of appellate review." Although the Board may give the opinion of the claimant's treating physician substantial weight, the Board is not bound to follow the opinion of the treating physician. Further, the Board may "discount the testimony of any witness on the basis of credibility, provided it states specific, relevant reasons for so doing."
Standard Distributing, Inc. v. Hall, 897 A.2d 155, 158 (Del. 2006) ( citing DiSabatino Bros. v. Wortman, 453 A.2d 102, 106 (Del. 1982)).
Bolden, 2005 Del. LEXIS 527, at *4.
Bradley v. State, 2003 Del. LEXIS 331, at *16 (Del.Super.) ( citing Diamond Fuel Oil v. O'Neal, 734 A.2d 1060, 1065 (Del. 1999)).
Jepsen v. University of Delaware-Newark, 2003 Del. LEXIS 320, at *6 ( citing Turbitt v. Blue Hen Lines, Inc., 711 A.2d 1214, 1216 (Del. 1998)).
In this case, the Board adopted the opinion of Dr. Riederman, who examined Claimant on behalf of Playtex, over the opinion of Dr. Galinat, Claimant's treating physician. Both physicians agreed that Claimant continues to experience some disability, and is capable of working. However, the physicians parted company as to the extent of Claimant's current disability. Dr. Galinat believed that Claimant was limited to working part-time, but Dr. Riederman thought she could work full-time in a light-duty position with lifting restrictions.
There was substantial evidence to support the Board's decision to accept Dr. Riederman's opinion, including the normal neurological examination of her right, upper extremity, pain complaints limited to extreme movement of the right shoulder, and management of her pain with over-the-counter analgesics. There is also substantial evidence to support the Board's decision to discount Dr. Galinat's opinion. Dr. Galinat only treated Claimant on two occasions in 2005; he was unaware of her automobile accident and related treatment for a neck injury; and he was unaware as to how Claimant was managing her pain. Accordingly, the Board did not err in adopting the opinion of Dr. Riederman that Claimant is able to work full-time with restrictions.
In addition to asserting that the Board's decision is not supported by substantial evidence, claimant also claims that the Board is barred by the doctrines of res judicata and collateral estoppel in reconsidering the reliability of Dr. Riederman's opinion. The Board has statutory authority to review and/or modify an award or agreement of workers compensation benefits.
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.
§ 2347.
Betts v. Townsends, Inc., 765 A.2d 531, 534 (Del. 2000) ( citing 19 Del.C. § 2347).
§ 2347.
The doctrine of res judicata does not apply when the Board "reconsider[s] the incapacity or status of a claimant based on one of these specifically delineated changes in circumstances." Res judicata would apply if the Board were reviewing the prior award for correctness.
Betts, 765 A.2d at 534 ( citing Harris v. Chrysler Corp., 541 A.2d 598 (Del. 1988)); Bachetti Bros. v. Reed, 2006 WL 1067284, at *1 (Del.Super.); Willing v. Midway Slots, 2003 WL 21085398, at *4 (Del.Super.); Atkinson v. Delaware Curative Workshop, 1999 WL 743447, at *3 (Del.Super.) ("The application of the doctrine of res judicata does not work in this type of action where the General Assembly has granted statutory authority to the Board to review previous awards.").
Betts, 765 A.2d at 534 ( citing Taylor v. Hatzel Buehler, 258 A.2d 905, 908 (Del. 1969)).
In this case, the Board reviewed Claimant's award of total disability benefits for a change in the status of her disability, which falls within the provisions of § 2347. The Board was not considering whether Claimant's injuries were caused by the work accident, but whether Claimant's condition had improved. Consequently, the doctrine of res judicata does not apply.
Similarly, the doctrine of collateral estoppel does not preclude the Board from terminating Claimant's total disability. "`Under the doctrine of collateral estoppel, if a court has decided an issue of fact necessary to its judgment, that decision precludes relitigation of the issue in a suit on a different cause of action involving a party to the first case.'" A court must consider the following factors when deciding whether collateral estoppel applies:
Willing v. Midway Slots, 2003 WL 21085398, at *4 (Del.Super.) ( quoting Messick v. Star Enterprises, 655 A.2d 1209, 1211 (Del. 1995)).
(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 ( citing State v. Machin, 642 A.2d 1235, 1239 (Del.Super. 1993) ( citing United States v. Rogers, 960 F.2d 1501, 1508 (10th Cir. 1992)); Acierno v. New Castle County, 679 A.2d 455, 459 (Del. 1996).
Betts, 765 A.2d at 535 ( citing State v. Machin, 642 A.2d 1235, 1239 (Del.Super. 1993) ( citing United States v. Rogers, 960 F.2d 1501, 1508 (10th Cir. 1992)); Acierno v. New Castle County, 679 A.2d 455, 459 (Del. 1996).
In this case, the only factor under consideration is whether an issue decided in the Board's previous decision is identical with one present in this petition. Specifically, the Claimant questions whether the Board may revisit the reliability of Dr. Riederman's opinion. However, the opinion that Dr. Riederman offered in the first Petition for Termination of Total Disability Benefits is not identical to the opinion offered in the second petition.
Although Dr. Riederman's opinion as to permanent disability is consistent in both proceedings, the issues considered differ. In the second hearing, the parties' experts agreed that Claimant was not totally disabled. Indeed, Claimant's treating physician noted that her condition had improved to the point that he released her to work part-time. The issue, then was not whether Claimant was at some point totally disabled, but the present extent of her partial disability. Accordingly, the Board followed the opinion of Dr. Riederman that Claimant could work full-time in a limited capacity.
The issues are not identical, and the facts supporting the experts' opinions are different. Both Claimant's expert evidence provider and Claimant's condition had changed in the second hearing. In the period between the two hearings, Claimant underwent two shoulder surgeries, which corrected the snapping scapula. Further, the facts supporting the experts' opinions were separate and distinct. Therefore, collateral estoppel does not apply.
Orthopaedic surgeon Craig Morgan, M.D. testified on behalf of Claimant in the first hearing. Dr. Morgan subsequently referred Claimant to Dr. Galinat, who specializes in snapping scapula syndrome.
Finally, Claimant disputes the validity of the labor market survey to the extent that it was compiled based on Dr. Riederman's opinion. As noted previously, there was substantial evidence to support the Board's adoption of Dr. Riederman's opinion. However, Claimant also argues that the Board erred in accepting the labor market survey, because the survey failed to demonstrate that there was an actual opportunity for the Claimant to be hired for the positions. Relying on Abex Corp. v. Brinkley, Claimant decries that the labor market survey's sufficiency on the basis that it merely provided information on jobs that are generally available, rather than jobs specifically available to the Claimant.
252 A.2d 552 (Del.Super. 1969).
Claimant's reliance on Abex is misplaced. The Court in Abex found that the employer failed to prove the availability of jobs for the claimant, because the official from the Employment Security Commission testified that the claimant "could probably" find light-duty work. Notable, though, is that, in Abex there was no indication that a labor market survey was conducted. In this case, the vocational rehabilitation expert created a list of fifteen jobs, tailored to Claimant's restrictions, her education, and work experience. The expert also found positions that were entry-level that did not require previous work experience, and jobs that did not require use of Claimant's right arm. The labor market survey was not required to guarantee that each employer would hire her. It is sufficient for the survey to identify available positions. Since the Claimant did not apply for any of the jobs, no reason emerges suggesting that the cited employment is unavailable to her.
Id. at 553.
Aaron v. Liddicoat Const. Co., 1992 WL 354202, at *6 n. 6 (Del.Super.)
CONCLUSION
After reviewing the record, this Court is satisfied that the decision of the Industrial Accident Board, terminating the total disability benefits of Claimant, Lorie Wyatt-Helie, and granting her partial disability benefits, is supported by substantial evidence and free from legal error. Accordingly, the decision of the Board is
AFFIRMED.
SO ORDERED.