Raytheon Constructors v. Kirk.

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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY RAYTHEON CONSTRUCTORS ) Employer Below-Appellant, v. DANIEL J. KIRK Employee Below-Appellee. ) ) ) ) ) ) ) ) ) ) ) C.A. No. 02A-05-008 HLA Date Submitted: January 24, 2003 Date Decided: April 24, 2003 ORDER U PON E MPLOYER S A PPEAL F ROM INDUSTRIAL A CCIDENT B OARD D ECISION AFFIRMED IN PART, REVERSED IN PART Nancy Chrissinger C obb, Esq., and Ch ristopher T. Logullo, Esq ., Chrissinger & Baumberger, Three Mill Road, Suite 301, Wilmington, DE 19806. Attorneys for Employer B elow-A ppellant. Matthew M. Bartkowski, Esq., Kimmel, Carter, Roman & Peltz, P.A., P.O. Box 1158, Bear, DE 19701. Attorney for Claimant Below-Appellee. ALFORD , J. Raytheon Constructors v. Kirk C.A. No. 02A-05-008 HLA April 24, 2003 Page 2 On this 24th day of April 2003, upon consideration of the Appeal filed by the Raytheon Construc tors ( Appellant ), the answ ering brief filed by Daniel J. Kirk ( Appe llee ) and the record of th e proceed ings below , it appears to th e Court tha t: PROCEDURAL HISTORY On June 19, 2000, Appellee, filed a Petition to Determine Compensation Due. On October 31, 2000, the Industrial Accident Board ( Board ) found that Appellee had developed plantar fasciitis in his lef t foot, which was substantially caused by the cumulative detrimental effect of his work at Raytheon. Appellee was awarded total disability from November 11, 1999, until Se ptemb er 8, 200 0. Appellan t filed a timely appeal on November 20, 2000, to the Superior Court regarding this dec ision, however, Appellant did not file an opening brief and thus the appeal was dismissed on March 21, 2001. On November 11, 2001, Appellee filed a Petition to Determine Additional Compensation Due, seeking partial disability from September 9, 2000, ongoing, and payment of $3,950.00 out-standing medical expenses. A hearing was held on March 7, 2002 and the record was left op en until Ap ril 1, 2002, to p ermit additional argument by the parties. On April 17, 2002 , the Board found th at Appelle e should b e awarde d tempora ry partial disability at the weekly rate of $588.67, attorney s fees of $3,200.00 and medical witness fees. The outstanding medical expenses had been raised previously, in conjunc tion with the Board s Raytheon Constructors v. Kirk C.A. No. 02A-05-008 HLA April 24, 2003 Page 3 hearing on October 20, 2000. Thus, the Board determined that the issue had already been addressed and this was not the proper forum for raising it again. On May 15, 2002, Appellant appealed the Board s decision to the Superior Court for the State of Delaware on the dual grounds that: (i) the Board failed to address the issue of whether Appellee s present res trictions were the result of a work rela ted condition, and (ii) the Board erred as a matter of law wh en it award ed tempo rary partial disability ben efits in excess of the to tal disab ility rate. STATEMENT OF FACTS Appellee was a bo ilermaker f or approx imately thirty years. This is a heavy-duty commercial job that r equires a lot of lif ting, rigg ing, clim bing an d assem bling. Appelle e was affiliated w ith a local union and was assigned to work for Appellant beginning in June of 1999 and left due to disability in late Octobe r 1999. A ppellee has diabetes w hich is controlled with oral medication and diet. Appellee was born with a congenital deformity of his feet, known as pes cavus. This is a medical term for an unusually high arch in the foot. It predisposes one to a condition called plantar fasciitis. The plantar fascia is a band that begins at the base of the heel and runs under the arch of the foot to the toes. W hen the fa scia becom es infla med o r irritated, it is called fasciitis. On October 31, 2000, the Board ruled that Appellee s lengthy work hours and strenuous climbing activities were a substantial cause of the development of plantar f asciitis Raytheon Constructors v. Kirk C.A. No. 02A-05-008 HLA April 24, 2003 Page 4 in his left foot. Although, at some point previously, Appellee had experienced a stress fractur e of the heel, this was ru led out a s a cont ributing factor to his disab ility. Appellee continues to be treated by John Walter, D.P.M. of Philadelphia, Pennsylvan ia since October 2000. Appellee ex periences pain with w alking and wea rs orthotic dev ices in his shoes everyday and foot splints every night. He had three cortisone injections in 2001 . Appellee performs daily balance and stretching exercises, and uses Lidoderm patches on his feet everyday. Appellee states that h e can not lift an ything heavy, or stand for long periods of time. He was last seen by Dr. Walter on September 21, 2001, at which time he was experiencing constant pain in both feet and ambulating with a cane. In his October 5 th , 2001, d epositio n Dr. W alter stated that Appellee s present signs and symptoms of pain are consistent with his initial diagnosis of chronic plantar fasciitis. He also stated that Appellee s diagnosis of diabetes has little implication on his plantar fasciitis. Appellee develo ped pro blems in his right foot be ginnin g in Au gust, 20 00. Dr. Walte r testified that once pain develops in one foot, it is common to compensate with the other foot and thus develop the same condition in both feet. Thus, Appellee was diagnosed with the same con dition in both feet with th e left wors e than the rig ht. At the hearing held on March 7, 2002, Dr. Leo Raisis testified by deposition for Raytheon. Dr. Raisis examined Appellee twice. He does not believe that Appellee has plantar fasciitis, but rather degenerative arthritis of the midfoot. However, Dr. Raisis d id Raytheon Constructors v. Kirk C.A. No. 02A-05-008 HLA April 24, 2003 Page 5 agree that Appellee is restricted to sedentary employment. Both Appellee s and A ppellant s doctors agree that A ppellee is un able to work as a boilermaker and that he is capable only of sedentary type employment. Thus, the B oard found that Appellee met his burden to show that he is partially disabled due to Ap pellee s employment ove r a thirty year period, and the Board awarded him temporary partial disability at the weekly rate of $588.67. STANDARD OF REVIEW When reviewing a decision of the Industrial Accident Board, th e Court s ro le is to determine whether there is substantial evidence to support the Board s decision.1 Substantial evidence is such relevant evidence as a reasonable mind might accept as adeq uate to support a conclu sion. 2 The Court may only overturn the Board s decision when there is no satisfactory proof in support of its factual findings.3 Furthermore, because the Court does not sit as the trier of fact, it will not substitute its judgment for that of the Board s.4 ANA LYSIS 1 Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 65, 67 (1965); Stoltz Management Company v. Consumer Affairs Bd., Del. Supr., 616 A.2d 1205, 1208 (1992); Histed v. E.I. duPont de Nemours, Del. Supr., 621 A.2d 340, 342 (1993); Groff v. J.C. Penny Company, Inc., Del. Super., C.A. No. 98A-07-018, Toliver, J. (Jun. 18, 1999) (Order at 4). 2 Olney v. Cooch, Del. Supr., 425 A.2d 610, 614 (1981). 3 Johnson, 213 A.2d at 67. 4 Id. at 66. Raytheon Constructors v. Kirk C.A. No. 02A-05-008 HLA April 24, 2003 Page 6 Issue I: Whether Appellee s present restrictions were the result of a work related condition Appellant contends that Appellee s injuries and present symptom s are not premised upon substantial evidence and were not caused by his employment, thus Appellee should not receive temporary pa rtial disability benef its. Appellan t maintains th at the Board did not address their contention that Appellee s present restrictions are not the result of his employment at Raytheon. In its April 17 , 2003, dec ision, the Bo ard states in pe rtinent part: It was found at a previous hearing that Claimant was totally disabled by the cumulative detrimental effect of plantar fasciitis, from November 11, 1999 through September 8, 2000. That decision predicted this claim for partial disability. Both Claimant s and Raytheon s doctors now agree that Claimant is unable to return to work as a boilermaker. B oth also agr eed Claim ant is capable only of sedentary-type employment. Therefore I find Claimant has met his burden to show that he is partially disabled. 19 Del. C. § 2325. Appellee argues that the issue of ca usation has already been established b y the Board s previous decision on October 31, 2000, and if Appellant desired to allege causation, the appropriate forum would have been an appeal of that decision. Appellee points out that Appellan t did in fact appeal that decision, but chose not to proceed with the appeal. Thus, Appellee argues that the issue of causation has already been established and the Appellant is attemp ting to re -litigate a n issue w hich ha s been r endere d a fina l judgm ent. Raytheon Constructors v. Kirk C.A. No. 02A-05-008 HLA April 24, 2003 Page 7 The Court find s that the cau sation issue w as determin ed not only in the Board s first decision of October 31, 2000, but also in th e secon d decis ion of A pril 17, 2 002. Clearly, the first decision attributed Appe llee s plantar fasciitis to his employment with Raytheon and Appellant chose not to com plete the appea l proces s of tha t decisio n. As Appellee points out that wo uld hav e been the pro per for um in w hich to c ontest c ausatio n. In preparation for the April 17, 2002, decision, the Board heard testimony from Appellee, Dr. John W alter, Dr. Ro bert Tyrell, Jose C astro (vocationa l exp ert), J ocel yn Langrehr (vocational expert) and Dr. Leo Raisis. Additionally, the Board allowed the record to rem ain open until April 1, 2002, in order for the parties to present any additional argumen t. The Board considered and discu ssed the m edical expe rt testimony in relatio nship to Appellee s present condition. The Board considered that the previous Board had predicted the fact that this claim for partial disability would occur. Thus, the Board expected a continuation of Appellee s claim. T he Board was requ ired to sort through challenging and complicated medical testimony. The Court may not substitute its judgment for that of the Board s. The Court is not the trier of fact. The Court did not hear the witnesses and may not now determine the credibility of the witnesses. In each decision the Board indicates the complexity and difficulty of the case. The Court finds that the Board properly decided the issue of causation, that there is a nexus b etween A ppellee s cu rrent conditio n and his employment at Raytheon. Raytheon Constructors v. Kirk C.A. No. 02A-05-008 HLA April 24, 2003 Page 8 Appellant further argues that any conclusion by the Boa rd that Appellee s restrictions are a result of a work related condition, is not based on substantial competent evidence. Appellant contends that the Board ignored their causation arguments and concluded that the present day work restrictions are the result of a prior compensable aggravation of a preexisting conditio n. 5 Appellant further argues, that [i]f that is the case, the Boards decision is not ba sed up on sub stantial c ompe tent evid ence. 6 Appellan t supports this allegation by pointin g out th at both D r. Raisis a nd Dr . Walter agree that Appellee has bilateral foot pain. Appellant further states that Appellee is showing signs and symptoms of bilateral tarsal tunnel syndrome and bilateral metatarsal joint pain, and that neither doctor relates these sympto ms and synd romes to A ppellee s em ployment at Raytheon. How ever, this is an incorrect assertion. Dr. W alter relates A ppellee s pa in and symp toms directly to his occupation and states that they occurred while Appellee was working as a boilermaker. The Board s A pril 17, 2002 , decision clea rly states that neurological exam was negative for tarsal tunnel syndrome. Additionally, although as Appellant points out, neither doctor relates Appellee s right foot pain to his employment at Raytheon, Dr. Walter states that it is an expected compensation injury. Appellee is compensating due to the pain in his left foot, 5 Appellant s Opening Brief at 9. 6 Id. Raytheon Constructors v. Kirk C.A. No. 02A-05-008 HLA April 24, 2003 Page 9 which has already been determined to be caused by his employment at Raytheon. He describ es this as a com pensat ory natura l mech anism. Further, Dr. Walter testified that Appelle e s symptom s are classic fo r the diagno sis of plantar f asciitis. Only Dr. Raisis, Appe llant s expert, testified that Appellee s symptoms arise from deg enerative arth ritis of his midf oot. The Board considered and discussed each expert s opinion. T he Cou rt finds that the Board d id not ignore Appellant s causation argument, as Appellant maintains. Appellant further argues that because Appellee continues to have pain three years after the initial plantar fas ciitis diagnosis, th at it is therefore n ot plantar fas ciitis and it is unrelated to his employment at Raytheon . However, as Dr. Walter notes in his deposition, Appellee presents with classic plantar fasciitis symptoms. Dr. Walter states that Appellee may need surgery in the future as his symptoms are not abating with the le ss conserv ative treatme nt. Although conserva tive measu res are usua lly successful, A ppellee has not respon ded we ll and continu es to pre sent w ith plant ar fasci itis sympto ms. The Court finds that there is enough relevant ev idence that a reasonab le person w ould accept as adequ ate to support th e conclusio n that App ellee s plantar f asciitis is related to his employment at Raytheon. The Court may only overturn the Board s decision w hen there is no satisfactory proof in support of its factual findings. The Court finds that the evidence was Raytheon Constructors v. Kirk C.A. No. 02A-05-008 HLA April 24, 2003 Page 10 sufficient for the Bo ard to find th at Appelle e s injury was c ausally related to his employment at Ra ytheo n. Fu rther fac t find ing is not nece ssary. Issue II. Calc ulation of T emporary-P artial Benef its Appellee has conceded that pursuant to title 19, section 2325 of the Delaware Code that the correct method to calculate temporary partial disability is two-thirds of the difference between the App ellee s avera ge week ly wage an d his return to work wage and this section requires that the figure cannot exceed the state maximum allowed by law at the time of the accident. Therefore, t he maxim um amo unt of tem porary partial disa bility allowed to Appellee under section 2325 is $434.68. This error of the Board is ministerial, an d both parties agree on the matter, thus the Court reverses this part of the lower court s decision to reflect the correct temporary partial disability rate in the amount of $434.68 from September 9, 2000 and on going. For the forgoin g reasons th e decision o f the Indus trial Acciden t Board is hereby AFFIRMED IN PART, REVERSED IN PART - as to the am ount of w eekly disability payments, which sh ould now be in the amount of $434.68, in order to comply with title 19, section 2325 of the Delaware Code. IT IS SO ORDERED. ___________________________ ALFORD , J. Raytheon Constructors v. Kirk C.A. No. 02A-05-008 HLA April 24, 2003 Page 11 Original: Prothonotary s Office - Civil Div.

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