State of Delaware v. Townsend.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE Employer Below, Appellant v. THEODORE TOWNSEND ) ) ) ) ) ) ) CIVIL ACTION NUMBER 02A-12-008-JOH Employee Below, Appellee) Submitted: June 11, 2003 Decided: October 3, 2003 MEMORANDUM OPINION Appeal from a Decision of the Industrial A ccident Board - AFFIRMED John J. Klusman, Jr., Esquire, and Noriss E. Cosgrove, Esq uire, of Tybout Redfe arn & Pell, attorneys for employer-below, appellant Gary S. Nitsche, Esquire, of Weik, Nitsche, Dougherty & Componovo, attorney for employee-below, appellee HERLIHY, Judge The Red Clay Consolidated Sch ool District appeals the Industrial A ccident Board s denial of its petition to terminate Theodore Townsend's total disability benefits. All of its alleged errors committed below involved the weighing of evidence and the credibility of witnesses, such that they fall squarely and exclusively within the province of the Board.1 Accordingly, the decision below is AFFIRMED. Facts Claimant Theodore Townsend, on July 7, 1998, while working for Red Clay Consolidated School District (the "State"), fell from a loading dock approximately five feet to the ground. He sustained substantial injuries to his upper and lower back, neck, and buttocks. There was no dispute that Town send's injuries were the result of his work related accident and the State has been paying total disability benefits in the amount of $411.11 a week since Ju ly 8, 1998 . On October 13, 2000, the State filed its first petition to terminate Townsend s total disability benefits on the grounds that he was no longer totally disabled. A hearing took place on February 22, 2001. Relying on the testimony of Townsend's physician, Dr. Bruce Grossinger, the Boa rd 2 denied the petitio n. The State filed its second petition to terminate Townsend's benefits on June 3, 2002, arguing that suitable employment was available to Townsend. 1 The Hearing Officer The parties stipulated that a hearing officer rather than the Board could hear and determine the case. All references hereafter are to the hearing officer. 2 This was a decision by the Board. 2 conducted a hearing on November 26, 2002. The State presented Ro bert Sta ckhou se, a vocational rehabilitation specialist. He reviewed Townsend's medical and occupational history and generated a labor market survey, finding twelve jobs that Townsend would be qualified to perform based upon his physical limitations as outlined by Dr. Alan Fink, the State's examining physician. The positions were primarily sedentary, customer service positions. Stackhou se admitted that all of the positio ns required between sixty and eighty percent frequent handling. Greg Rybicki testified, by deposition, on behalf of the State. Rybicki, a physical therapist, perfor med a functio nal cap acity exam ination o n Tow nsend in Ma rch 200 2. The purpose of the exa m was to determine what To wnsend , within his res trictions, was c apable of perform ing within a normal w orkday. Rybick i testified that it w as his opin ion that Townsend could use his hands repetitively for a limited d uration of tim e over a fiv e to six hour workday. He also provided statistics as to accurac y of such fu nctional cap acity examinations generally, noting that 99 percent of those who have returned to work based on their results have worked successfully without re-injury. On cross-examination, Rybicki admitted that Townsend had difficulty manipulating small parts due to trembling and suffered pain during the examination. Dr. Fink also tes tified, by depos ition, for the S tate. He exa mined T ownsen d and his records and concluded that Townsend suffered mild limitation s in neck range of motion and right ulnar neuropathy, but that there was no significant wasting of the hands. He also agreed 3 that continued treatment with Dr. Grossinger was appropriate. With rega rd to returning to work, Dr. Fink testified that Townsend's condition was guarded and that he could not perform a job with repetitive hand movements. After his most recent examination, Dr. Fink noted that there were no significant changes in Townsend's condition between his 2001 examination and the 2002 e xamin ation. He concluded, however, that Townsend could return to light-duty, sede ntary work f ive to six hours a day, and that the twelve positions listed in the labor market survey were appropriate. But on cross-examination, Dr. Fink admitted that he had origina lly underestima ted the seve rity of Town send's cond ition and agreed tha t his condition had not significa ntly improved in the last couple of years. He w as also unaware that the Board had denied the State s prior petition. Townsend presented Dr. Bruce Grossinger, who testified that Townsend suffered multiple herniated discs in his cervical and thoracic spine, ulnar n erve entrapment, and severe atrophy and claw-hand deformity of the right hand as a result of the fall. He further testified that Townsend still lacks manual dexterity and is unable to grasp objects, such that assistance is required for his daily living activities. He also testified that Townsend's condition has not changed since February 2001, when the last petition to terminate benefits was rejected, and that he has reached maximal medical improvement. On cross-examination, D r. Grossinger admitted that he did not directly observe the jobs listed in the labor market survey and that the functiona l capacity exam ination wa s a valid stud y, but disagreed with som e of its conclu sions. Dr. Grossinger did not believe that Townsend was capable of standing 4 to 5 4 hours per d ay, walking 3 to 4 hours per day or lifting up to 21 lbs. and that the functional capacity exam failed to address the specific limitations Town send has d ue to his spe cific deform ity. Lastly, Townsend, himself, testified that he has left and right hand numbness with deformity to his right hand. H e further state d that he m ust constan tly rub his right hand, h is only regular activity is making tea, he suff ers headac hes daily, and h e does no t sleep well. He is incapable of buttoning his shirt or tying his sh oes. He fu rther testified tha t he could drive only short distances and can only walk three to four city blocks. He also stated that he suffered pain throughout the functional capacity exam and had marrie d a friend d ue to his need f or daily livin g assista nce. The Hearing Officer found th at the State ha d failed to d emonstra te that T own send 's total disability had ended and denied the petition to terminate. In particular , the Hearing Officer found that the testimony was uncontroverted that Townsend's condition had not changed since the f irst p etitio n to terminate was denied. A ccor ding ly, he concluded that the State had failed to meet its prima facie burden of demonstrating that Town send's disability had ended. He also rejected the functional capacity examination's findings, noting that Townsend had suffered pain and difficulty during the test. The Hearing Officer further found Stac khouse's testimony to be who lly uncredible, because even he admitted that the positions he found required significant manual handling. The State has ap pealed the O fficer's decisio n, making two argu ments. First, it 5 maintains that the Hearing Officer's finding that the State did n ot prove that T own send 's disability had ended and was capable of working was erroneous as a matter of law because it was not su pported b y substantial eviden ce. In particular, the State contends that the decision of the Hearin g Office r is underm ined by his inco rrect unders tanding tha t both testifying physicians believed that Townsend's condition had not changed at all since the last petition was rejected. The State also takes issue with the Hearing Officer's characterization of the functional capacity examination as representing only a "sn apsh ot" o f the Tow nsen d's capability on one particular day, rather than as a prediction of Townsend's job capabilities in any given workday. The State also faults the Hearing Officer's rejection of its labor market survey as unreliable because it did not specify exactly wha t was unre liable about it. The State's second argument is actually just a more comprehensive restatement of the "snapsho t" portion of its first argument. The State argues that the Hearing Officer's finding that the functional capacity examination was merely a "snapshot" of Townsend's physical capabilities was an error of fact and not supported by substantial evidence. Standard of Review The function of the Superior Court on appeal from a decision of the Industrial Accident Board, in this case a Hearing Officer, is to determine whether there was substantial evidence in the record to support the Board's findings of fact and conclusions of law.3 3 Johnson v. Chrysler Corp., 213 A.2d 64 (Del. 1965). 6 Questions of law are reviewed de novo.4 In reviewing the record for substantial evidence, the Court must consider the record in a light most favorable to the party prevailing below.5 Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.6 The credibility of witnesses, the weight of their testimony and the factual inferences draw n therefrom are for the Board to determine.7 This Court does not substitute its judgment for that of the Board.8 Discussion In the present m atter, an emp loyer has filed a petition to term inate total disab ility benefits. After filing a petition to terminate an employee's total disability benefits, a former employer bears the initial burden of demonstrating that the e mployee is no longer totally incapacitated for the purpose of working.9 If the employer satisfies that burden, the employee must show that she is a "disp laced w orker." 10 A worker is displaced if she "is so handicapped by a compensable injury that [s]he will no longer be employed regularly in any well known branch of the competitive labor market an d will require a specially-created job if [s]he is to be st eadily em ployed." 11 Therefo re, the emp loyer bears the in itial burden to 4 Ocean Port Indus. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994). 5 Brittingham v. St. Michael's Rectory, Del. Super., C.A. No. 99A-11-001, Bradley, J. (July 25, 2000). 6 7 8 1978). 9 10 11 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981). Keeler v. Metal Masters Equip. Co., Inc., 712 A.2d 1004, 1006 (Del. 1998). Delaware Alcoholic Bev. v. Alfred I. DuPont Sch. Dist., 385 A.2d 1123, 1125 (Del. Torres v. Allen Family Foods, 672 A.2d 26, 30 (Del. 1995). Id. Ham v. Chrysler Corp., 231 A.2d 258, 261 (Del. 1967). 7 establish that the disability has ceased or that the disability is not a result of the acciden t.12 Here, since there is no issue as to causation, the State bears the initial burden of establishing that the e mployee is no lon ger inca pacitate d. In deciding that the State had failed to meet its burden, the Hearing Officer reasoned as follows: The testimony in this c ase was u ncontrov erted abou t one critical fa ct. Both Drs. Grossinger and Fink agreed that Claimant's condition has not changed at all over the past couple of years or, at least, since the last Petition to Termina te Benefits. This admission by the medical experts, alone, demonstrates the State has failed to meet its prima fac ie evidentiary burden in this matter. As noted in the controllin g case law regarding termination, the State, as petitioning party, must dem onstrate that Claimant's disability has ended before the termina tion inq uiry proce eds any f urther. State could not establish e ven this burden. It is noted that the hearing officer fou nd Dr. Grossing er credible. Dr. Fink 's testimony wa s more dif ficult to resolv e. Dr. Fink stated quite clearly that Claimant's condition has not changed and that his condition remains guarded to poor bu t believes C laimant is capable of sedentary work with some manual hand movement. The hearing officer accepts Dr. Fink's statement regarding Claimant's unchanged status but cannot give weight to his representatio ns as to Claimant's ability to return to work. In essence, State, through its expert physician, acknowledges Claimant's total disa bility continues but maintains Claima nt can return to work. These positions are inapposite.13 The State first attacks the Hearing Officer's decision because it said that the testimony was uncontroverted as to the fact that Townsend's condition has not changed at all over the past couple years. This, according to the State, is an incorrect statement. Dr. Fink's trial deposition states: 12 13 Torres, 672 A.2d at 30. Townsend v. State, IAB No. 1131516 (Dec. 9, 2002) at 6-7 (citations omitted). 8 Q: And he had just like the first time some objective findings and some neurolog ical or strength deficits; right? A: Corre ct. Q: He to ld you that he h adn't improv ed a wh ole lot? A: Corre ct. Q: And you agree w ith that; right? A: Yes. Q: In fact, you w ould agree that he hasn 't improved a whole lot in the last couple of years; is that true? A: Corre ct. Q: And specifically if I were to ask you, say around the spring of 2001, he hasn't improved a lot since that time either, has he? A: Corre ct. Q: Were you aware that this Board previously found that he could not go back to work in the spring of 2001? A: No. 14 The Hearing Officer may have been inaccurate in a small degree by saying Dr. Fink testified Townsend had not c hanged when he actually said he had not improved a whole lot. The differe nce in th e circum stances of this c ase is inc onseq uential a nd sem antical. Linguistic technicalities aside, both parties doctors agree that Townsend's physical condition has not ch anged in a ny significant way since the last time the Board rejected a 14 Fink deposition, Nov. 13, 2002, pp. 20-21. 9 State's request for termination of benefits. In fa ct, ne ither doctor te stified th at To wns end's condition had impro ved at all. Th e only issue in d ispute betw een the parties is whether Tow nsen d's physical limitations constitute total disability. The Hearing Officer heard testimony from a number of witnes ses and co ncluded it d id. Furtherm ore, the reco rd is replete with substantial evidence to support that decision. There are no valid grounds to upset it. Despite the S tate's attempts to p hrase its com plaints as issue s for this Court to decide, each of its assertions actually attack the credibility determinations of the H earing Officer. The Hearing Of ficer found Dr. Fink's testimony to be confusing, if not contradictory, to the extent that he testified that Townsend had not improved to any significant extent, but nevertheless thought Townsen d would be ca pable of perform ing light duty, sedentary work. Implicit in the Hearing Officer's reasoning is the premise that the Board had already found Tow nsend to be tota lly disabled in 2001 . The S tate app arently m isses tha t premis e. The State cites as error the Hearing Officer s use of the word snapshot when referring to Rybicki s fu nctional cap acity exam. To wnsend s counsel u sed the w ork to describe the exam and Rybicki nev er disputed that characte rization. Ag ain, while the re is quibble room he re over the use of that w ord, it does not rise to the level of error. The State similarly finds error in the Hearing O fficer's rejection of Mr. Stackh ouse s testimony about his jo b market survey results. But, as the Hearing Officer correctly noted, that issue need not be addressed because the State failed to carry its initial evidentiary burden. 10 In short, it was the Hearing Officer who heard the testimony of the professionals and observed Townsend explain his physic al limitatio ns. This Court did not. That is precisely why the credibility of witnesses, the weight of their testimony and the factual inferences drawn therefrom are for the Board (or Hearing Officer) to determine.15 This Court will not secondguess the decision below. Conclusion The decision of the Industrial Accident Board is AFFIRMED. J. 15 1998). Keeler v. Metal Masters Foodservice Equip. Co., Inc., 712 A.2d 1004, 1006 (Del. 11
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