Playtex Products, Inc. v. Evans.

Annotate this Case

Download PDF

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY PLAYT EX PRO DUCTS , INC., Employer-Below/ Appellant, v. JIMMIE EVANS, Claimant-Below/ Appellee. : : : : : : : : : : : C.A. No. 04A-05-001 WLW Submitted: March 24, 2006 Decided: June 30, 2006 ORDER Upon Appeal from a Decision of the Industrial Accident Board. Affirmed in part; Re versed and R emanded in p art. J. R. Julian, Esquire of J. R. Julian, P.A., Wilmington, Delaware and Timothy A. Casey, Esquire of Marshall Dennehey Warner Coleman & Goggin, Wilmington, Delaware; attorneys for Playtex Products, Inc. Walt F. Schmittinger, Esquire of Schmittinger and Rodriguez, P.A., Dover, Delaware; attorneys for Jimmie E vans. WITHA M, R.J. Playtex Products, Inc. v. Jimmie Evans C.A. No. 04A-05-001 WLW June 30, 2006 Upon consideration of the parties briefs and the record below, it appears to the Court: Defendant-below, Playtex Products, Inc. ( Playtex ), appealed the Industrial Accident Board s ( Board ) decision of November 21, 2003 ( Decision ) granting Claimant-below, Jimmie Evans ( Evans ), Petition to Determine Additional Compensation Due.1 Playtex asserts thre e grounds for its app eal: (1) Dr. Rod gers testimony does not satisfy the su bstantial eviden ce test, (2) Evan s use of Dr. Rodg ers at the hearing as a result of Dr. Rowe s unfavorable deposition violated public policy against doctor shopping, and (3) the Board committed errors of fact and law in reaching its conclusions an d issuing its decisions. In Ev ans response, he refutes all of Playtex s contentions and makes a cross-appeal arguing that the Board erred in failing to award attorney s fees for its decision granting a motion for reargument and attorney s fees for the successful defense of a motion for re argument. The salient facts are as follows: Evans injured his lower back on June 16, 1999, as a result of lifting heavy display materials. Playtex and Evans entered into several agreements regarding compensation for that injury. However, on June 11, 2003, Evans filed a Petition to Determine Compensation Due, as well as a Petition to Determine Additional Compensation Due. Evans based the Petition to Determine Compensation Due on a disc herniation he alleged occurred as the result of a second work accident on July 1, 2001, in which the forklift he was riding fell through rotted floorboards and dropped about eleven inches. The Petition to Determine Additional Compensation Due 1 The Decision also denied Evans Petition to Determine Compensation Due for another alleged work accident. However, that determination is not being appealed. 2 Playtex Products, Inc. v. Jimmie Evans C.A. No. 04A-05-001 WLW June 30, 2006 sought permanent imp airment benefits for an 18% loss of use of the lumbar spine based on either the 19 99 injury, the 20 01 injury, or both . For the reasons set forth below, the Board s decisio n is affirmed with respect to Playtex s appeal and reversed and remanded with respect to attorney s fees for the successful defense o f Playtex s Motio n for Reargume nt. Standard of Review The review of an Industrial Accident Board s decision is limited to an examination of the record for errors of law and a determination of whether substantial evidence exists to support the Board s finding of fact and conclusions of law.2 Substantial evidence equates to such relevant evidence as a reasonable mind might accept as adequate to su pport a conclu sion. 3 This Court will not weigh the evidence, determine questions of credibility, or make its own factual findings. 4 Errors of law are reviewed de novo. Absent error of law, the standard of review for a Board s decision is abuse of discretion.5 The Board has abused its discretion only when its decision has exceeded the bounds of reason in view of the circumstances. 6 Additionally, th is 2 Histed v. E. I. Dupont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993); Willis v. Plastic Materials, 2003 Del. Super. LEXIS 9; Robinson v. Metal Masters, Inc., 2000 Del. Super. LEXIS 264. 3 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Federal Mar. Comm n, 383 U.S. 607, 620 (1966)). 4 Collins v. Giant Food, Inc., 1999 Del. Super. LEXIS 590 (quoting Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1965)). 5 Digiacomo v. Bd. of Pub. Educ., 507 A.2d 542, 546 (Del. 1986). 6 Willis, 2003 Del. Super. LEXIS at *2-3. 3 Playtex Products, Inc. v. Jimmie Evans C.A. No. 04A-05-001 WLW June 30, 2006 Court will give deference to the expertise of administrative agencies and must affirm the decision of any agency even if the Court might have, in the first instance, reached an opposite co nclusion. 7 Discussion Playtex makes three arguments with respect to this appeal, the first of which has three subparts. Evans provides one argument on his cross-appeal. Each will be discussed seriatim below. I. Dr. Rodgers Testimony D oes Not Satisfy the Substantial Evidence Test. A. Dr. Rodgers testimony was based on speculative hunch and failed to rebut or repudiate directly conflicting medical testimony. Playtex argues that the Board erroneously accepted Dr. Rodgers testimony instead of Dr. DuShuttle s or Dr. Rowe s testimony because Dr. Rodgers opinion was based on possibility 8 and did not rebut directly conflicting medical testimony. Evans asserts that Dr. Rodg ers opinion rega rding his injuries is co uched in an a cceptable manner and, in fact, conflicts directly with Dr. DuShuttle s opinion. In Jepsen v. Un iversity of Delaw are,9 the Court considered the legal standard necessary for medical testimony. Specifically, the Court opined, since 1960 the Delaware Supreme Court has consistently held that expert medical testimony in terms 7 Collins, 1999 Del. Super. LEXIS at *9. 8 The Board stated, Dr. Rodgers opined the continuous use of the back by Claimant in the forklift operator job over more than a two-year period of time following the 1999 work accident was a possible mechanism of injury for the disc herniation. Evans v. Playtex Prods., Inc., IAB Hearing Nos. 1231043 & 1147310 (November 21, 2003), at 16. 9 2003 Del. Super. LEXIS 320. 4 Playtex Products, Inc. v. Jimmie Evans C.A. No. 04A-05-001 WLW June 30, 2006 of possibility supplemented by other creditable testimony is sufficient to meet the claimant s burden of proof in worker s compensation cases. 10 Additionally, the Court has specifically held that medical expert testimony that an injury is consistent with claimant s stateme nts or could have resulted therefrom, when considered in light of all of the evidence , is sufficient to establish the requisite causal c onnection to su stain an award of worker s compensation benefits. 11 Such is the case sub judice. The Board has clearly found that in light of Dr. Rodgers opinion, Evans testimony, the work required by Evans job and the diagnosis reached by all three physicians, the weight of the evidence supports a causal connection between Claimant s initial 1999 work injury and the recurre nce of his back compla ints in 2002. 12 Thus, Dr. Ro dgers opinion is not based on speculative hunch. Dr. Rodgers opinion also refutes the directly conflicting medical testimony of Dr. DuShuttle. Dr. DuShuttle opined that E vans disc hernia tion was unrela ted to his 1999 work accident, and was, in fact, an acute injury caused by a recent traumatic event. Conversely, D r. Rodgers testified th at the effect of Evan s working as a forklift operator for two years after the 1999 injury was a possible cause of the herniated disc. Thus, there was directly conflicting medical testimony and this argument warrants no further discussion. 10 Id. at *6-7. 11 Id. at *7. 12 Evans, IAB Hearing Nos. 1231043 & 1147310, at 15-16. 5 Playtex Products, Inc. v. Jimmie Evans C.A. No. 04A-05-001 WLW June 30, 2006 B. The Board erred by improperly weighing the testimonies of Dr. DuShuttle and Dr. Row e, the treating p hysicians. Playtex contends that the Board erred by acc epting the opinion of Dr. Rodgers over that of Dr. DuShuttle and Dr. Rowe. Particularly, Playtex asserts that Dr. DuShuttle and Dr. Rowe s o pinions should b e given more w eight because they were the treating physicians, they are both orthopedic surgeons, and although Dr. Rodgers agreed with the major analysis of Dr. DuShuttle and Dr. Rowe, his opinion was in direct conflict with the testimony of Dr. DuShuttle and Dr. Row e. Evans counters by arguing that Dr. DuShuttle was not a treating physic ian, but was ac tually a witness for Playtex. Evans bases this assertion on the fact that he was referred to Dr. DuShuttle by Playtex after the 1999 accident, Playtex instructed Evans to return to Dr. DuShuttle in February of 2002, Dr. DuShuttle reviewed Evans chart with repre sentatives from Play tex in April of 2002 and Dr. DuShuttle testified on behalf of Pla ytex in this case. E vans also argues that it is entirely proper for a medical expert to agree with another doctor s diagnosis and treatment, yet disagree with the cause of the condition. In Jepsen, the Court also addressed the issue of the Board s decision to accept certain testimony over that of other witnesses. The Court stated, [t]reating physicians have great familiarity with a patient s condition and their opinions should be given substantial weight. However, as finder of fact, the Board is entitled to discount the testimony of any witness on the basis of credibility, provided it states specific, relevant reasons for doing so . 13 In the case sub judice, there are two justifications for upholding the Board s 13 Jepsen, 2003 Del. Super. LEXIS 320, at *6. 6 Playtex Products, Inc. v. Jimmie Evans C.A. No. 04A-05-001 WLW June 30, 2006 decision to accept the te stimony of Dr. Ro dgers over that o f Dr. DuShuttle and Dr. Rowe. First, Evans contention that Dr. DuShuttle was not a treating physician in the typical sense is persuasive. Second, and more importantly , the Board cle arly stated its reasons for finding Dr. Rod gers testimony mo re persuasive. Specifically, with respect to Dr. Rowe, the Board determined, [t]he Board does not find Dr. Rowe s opinion that he could not relate Claimant s complaints in 2002 to the 1999 wo rk accident or the July 2001 work incident to be problematic based on Claimant s testimony, concerning the nature of his work and his ongoing sym ptoms, the fact that h e continued w orking as a forklift operator, and the expert opinion provided by D r. Rodgers. The employer takes the employee as it finds him. As for Dr. DuShuttle, the Board noted: The Board rejects D r. DuShuttle s op inion that the L 4-5 disc herniation cannot be related to the 1999 work accident. There is no medical evidence pinpointing when the disc herniation a ctually occurre d. While Dr. DuShuttle opines that the herniation is an acute, rather than a chronic injury, based on the absence of deterioration, calcification or desiccation in the MRI findings, he also inconsistently concludes that it cannot be related to the July 2001 work incident. However, he does not address the issue that the herniation may have occurred at some later date, or at any point in time, following the first MRI, as a result of Claimant s rigorous use of the back while performing the forklift operator job, as Dr. Rodgers suggests. 14 The reasons provided by the Board for rejecting the opinions of Dr. Rowe and Dr. DuShuttle are specific and relevant. Thu s, the Board w as proper in its decision to accept the op inion of Dr. Rod gers and Playte x s second argu ment fails. 14 Evans, IAB Hearing Nos. 1231043 & 1147310, at 17. 7 Playtex Products, Inc. v. Jimmie Evans C.A. No. 04A-05-001 WLW June 30, 2006 C. The Boar d failed to com prehensively and analytically identify the subord inate factual foundations on which the decision was based as required by Cotter.15 Playtex lists the four factual found ations it believes to be the basis of the Board s decision. They are: (1) it is n ot unusual to ha ve flare-ups or exa cerbations with chronic lumbosacral strain, (2) Dr. DuShuttle noted in August 1999 that Evans may need to bid out of his job , (3) there is no evidence to suggest that Evans sustained any further injuries from a trauma or ac cident outside th e workplace , and (4) Dr. Du Shuttle s opinion was inconsisten t. Regarding th ese factual foundation s, Playtex asserts that they are all illusory. In respon se, Evans argu es that they are su pported by sub stantial evidence and are consistent with the requirements in Cotter. In Cotter, the Court opined, [i]n our view an examiner s findings should be as comprehensive and analytical as feasible and, where appropriate, should include a statement of subordinate factual foundations on which ultimate factual conclusions are based, so that a re viewing cou rt may know th e basis for the decisio n. Accepting that the factual foundations outlined by Playtex are those upon which the Board based its decision, this Court finds that they meet the standard established in Cotter. In particular, the Board observed, Dr. DuShuttle, Dr. Rowe and Dr. Ro dgers opined that it is not unusual to have flare-ups or exacerbations with chronic lumbosacral strain, the undisputed diagnosis among all the physicians, for Claimant s condition following the 1999 work accident. 16 As for the Augu st 1999 note, D r. DuShuttle 15 Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981). 16 Evans, IAB Hearing Nos. 1231043 & 1147310, at 16. 8 Playtex Products, Inc. v. Jimmie Evans C.A. No. 04A-05-001 WLW June 30, 2006 agreed, and the medical records document, that he suggested that Evans bid ou t of his job and perform only light duty work with no repetitive lifting.17 The Board clearly concluded that [t]here is no evidence to suggest that Claimant sustained any further injuries from a trauma or accid ent outside the w orkplace. 18 Lastly, as mentioned earlier, the Board was troubled by Dr. DuShuttle s opinion that the injury was acute, but concluded that it was not related to the July 2001 work accident and his failure to address whether the herniation could have occurred at a later date as a result of Evans rigorous use of the back w hile performing his job as a forklift operator.19 All four of these factual foundations are reasonable and substantiated and, th erefore, result in appropriate findin gs and conclu sions. Consequ ently, this argume nt is unsuccessful. II. Evans Use of Dr. Rodgers at the hearing as a result of Dr. Rowe s unfavorab le deposition viola ted public polic y against do ctor shopping . Playtex argues that 19 Del. C. §§2322 and 2323 render Evans use of Dr. Rodgers impermissible doctor shopping. In support of that argument, Playtex cites to a few decisions from other jurisdictions that used statutes to prevent doctor shopping. Playtex also asserts that Evans withdrew his first Petition to Determine Additional Compensation Due becau se of the unfavorab le deposition of D r. Rowe. Evans response is that he withdrew the original petition because it was only for unpaid medical bills and he wanted to include a claim for permanent partial disability. Additionally, 17 Id. at 12, 16. 18 Id. at 17. 19 Id. 9 Playtex Products, Inc. v. Jimmie Evans C.A. No. 04A-05-001 WLW June 30, 2006 Evans contends that Playtex s reliance on Sections 2322 and 2323 is inapposite. Sections 2322 and 2323 were enacted for the mutual benefit of both the employer and the emplo yee. Their legislative purpose is twofold: (1) to insure the employer against unreasonable charges and against fraudulent claims; and (2) to insure at all times adequa te medical assistan ce to the emplo yee. 20 In the case before me, b oth of those purposes have been fulfilled. There is no indication that Evans claims are fraudulent. Especially in lig ht of the fact that the B oard found in his favor. Additionally, there are no allegations that Evans did not get adequate medical assistance. Assuming, arguendo, that these sections have the purpose proposed by Playtex, there is still no evidence that Evans conduct amounted to doctor shopping. E vans reason for why he withdrew his original petition is entirely reasona ble. Further, Ev ans explanation for why he consulted Dr. Rodgers that he was hire d to address Ev ans work restrictions, appropriateness and reasonablene ss of treatment, as well as causation from an occupational medicine viewpoint is plausible. Thus, Evans did not engage in doctor shopp ing. III. The Board committed errors of fact and law in reaching its conclusions and issuing its decisions. Playtex cites four reasons to support its argument that the Board erred in reaching its conclusions. The first is that the Board erroneously wrote that Evans saw Dr. DuShuttle in February of 2001 instead of February of 2002. The second argument was that there was no evidence to support the Board s findings that Evans suffered flare-ups 20 Hill v. Archie s Thriftway and Indus. Accident Bd., 1997 Del. Super. LEXIS 615, at *6. 10 Playtex Products, Inc. v. Jimmie Evans C.A. No. 04A-05-001 WLW June 30, 2006 or that his job required Evans to use his back in a rigorous manne r. The third argument is that the Board erre d in permitting E vans attorney to ask leading questions on direct examination. Finally, Playtex asserts that the Board erred in denying its Motion for Reargumen t based on Play tex s inclusion of affidav its. Evans argue s that the Board simply made a ty pographical m istake when it sa id 2001 instead of 2002, becau se the Board p roperly noted 2 002 at other po ints in its decision. Evans also contends that the Board was permitted to accept the testimony of Dr. Rodgers over that of Dr. DuShuttle because it is the B oard s role to resolv e conflicts in the testimony and it may accept one expert s opinion over that of another expert as long as substantial evidence exists. Third, Evans points out that the Board is not subject to the formal rules of evidence21 and Industrial A ccident Boa rd Rule 15 spe cifically permits leading questions of expert witnesses. Lastly, Evans asserts that the Board properly denied Playte x s Motion for Reargumen t because Play tex attempted to introduce affidavits of two individuals who were never called as witnesses during the hearing and were, therefore, never subject to cross-examination. As for Playtex s first argume nt, clearly the Board made a typographical error, so no further discussion is warranted. The second contention is also unpersuasive b ecause it is within the Board s function to decide the credibility of witnesses, resolve conflicts in the testimony and accept one expert s opinion over that of another ex pert. Therefore, the Board prope rly concluded that flare-ups occu rred and Eva ns rigorous use of his back caused the herniation because such findings were supported by substantial evidence, as noted above. Evans argumen t is also more persuasive regarding Playtex s 21 See Torres v. Allen Family Foods, 672 A.2d 26 (Del. 1995). 11 Playtex Products, Inc. v. Jimmie Evans C.A. No. 04A-05-001 WLW June 30, 2006 third contention, esp ecially since Pla ytex even co ncedes that co unsel may ask leading questions on direct examination of an expert witness when the issues are in dispute. Further, the Board acknowledged that the questions were leading but still found it credible; therefore, Dr. Rodgers testimony was not tainted as Playtex suggests. Regarding Playtex s last argument, the Board properly denied Playtex s M otion for Reargument. In its decision, the Board reasoned: [T]hat the two affidavits offered by the employ er are inadmissible. The evidentiary hearing has forma lly concluded and the affidavits do not constitute newly discovered evidence. The testimony of the proffered witnesses were discoverable before the hearing with the exercise of due diligence on behalf of the employer. Mr. Cohee was named a s a witness on the pre-trial memorandum and could have testified live or by deposition at the hearing. However, Mr. Bryan was not previously named as a witness and therefore would have been precluded from testifying at that time had any ob jection been ra ised. In addition, th e affidavits are inadmissible since due process requires that the Claimant be afforded the right to confront and to cross-examine witnesses against him. Even if the affidavits were admissible, their contents are cumulative to the testimony of Mr. Nelson, who did testify live, and merely tend to impeach or contradict the testimony of Claimant given at the hearing. Finally, the contents, if admissible, would not change the Board s findings of fact and conclusions of law as to the ultimate re sult.22 Clearly, the Board s decision to deny the Motion for Reargument was proper. First, the Board determined that the affidavits were inadmissible and had support for that decision. In addition, the Board noted that even if the affidavits were admissible, they still would not ha ve affected its decisio n. Thus, Playte x s final argument is 22 Evans v. Playtex Prods., Inc., IAB Hearing Nos. 1231043 & 1147310 (April 8, 2004), at 2-3 (citations omitted). 12 Playtex Products, Inc. v. Jimmie Evans C.A. No. 04A-05-001 WLW June 30, 2006 without merit. IV. The Board erred in failing to award attorney s fees for its decision granting a Motion for Reargument and attorney s fees for the successful defense of a Motion for Rear gument. On his cross-appeal, Evans argues that the Board erred w hen it did not award attorney s fees for its decision granting Evans Motion for Reargument in part and the successful defense of Playtex s Motion for Re argument bec ause counsel secured a benefit for his client. Evan s is seeking attorne y s fees for one hour in connection w ith its Motion for Reargument and 5.2 hours in connection with its successful defense of Playtex s Motion for Re argument. Play tex contends th at the Board w as correct in denying an award of attorney s fees because there was no benefit or change in position for Evans. An award of attorney s fees is reviewed for an abuse of discretion.23 This Court will not find that the IAB abused its discretion unless its decision has exceeded the bounds of reason in view of the circumstances. 24 19 Del. C. §2320 allows the Board to award attorney s fees w hen an emplo yee is awarde d compensatio n. Compensa tion, with respect to an award of attorney s fees, means any favorable change of position or benefits, as the result of a Bo ard decision, rath er than just being limited to contemporan eous financial ga in. 25 23 See Darnell v. BOC Group, Inc., 2001 Del. Super. LEXIS 283, at *28. 24 Porter v. Insignia Mgmt. Group, 2003 Del. Super. LEXIS 360, at *8. 25 Willingham v. Kral Music, Inc., 505 A.2d 34 (Del. Super. 1985), aff d., 508 A.2d 72 (Del. 1986). 13 Playtex Products, Inc. v. Jimmie Evans C.A. No. 04A-05-001 WLW June 30, 2006 In the case sub judice, Evans did not receive a benefit regarding his Motion for Reargumen t, even though it was granted in part, because the only change was to correct a typographical error and g ive Evans the percentage o f permanent impa irment it intended to award in the first instance. However, Evans did receive a benefit regarding his successful defense of Playtex s Motion for Reargument. Evans was able to cite two separate decisions whe rein the Board awarded atto rney s fees to claima nts for their successful defense of the emp loyers motions for reargum ent. Additionally, this Court has personally handled a case where the Board awarded attorney s fees to a claimant who successfully defended against a Motion for Rehearing.26 This Court wrote, [c]oncluding that Claimant s counsel had secured a benefit for his client, the Board awarded Claimant attorn ey s fees, stating, [C]o unsel for Claiman t is entitled to a reasonable attorney s fee assesse d as costs against In signia, pursuant to 19 Del. C. §2320(j). Because of Insignia s Motion, Claimant s attorney was required to spend time preparing his response. 27 The same rea soning is applica ble to this case. As a result of the Board s inconsistent decision to not award attorney s fees for the successful defense of a Motion for R eargument, this C ourt finds that the Board abused its discretion. How ever, this decision applies only to the 5.2 hours Evans counsel spent responding to Playtex s Motion for Reargument. The Board was correct that no benefit was sustained b y Evans with respect to his M otion for Reargu ment. 26 See Id. at *20. 27 Id. 14 Playtex Products, Inc. v. Jimmie Evans C.A. No. 04A-05-001 WLW June 30, 2006 Based on the foregoing, the d ecision of the Bo ard is affirmed with respect to Playtex s appeal and reversed and remanded with respect to its decision to deny attorney s fees for Ev ans successful defen se of Playtex s Motion for Reargu ment. IT IS SO ORDERED. /s/ William L. W itham, Jr. R. J. WLW/dmh oc: Prothonotary xc: Order Distribution 15

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.