Englebrake v. CSI Enterprises.
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SUPERIOR COURT OF THE STATE OF DELAWARE RICHARD F. STOKES 1 THE CIRCLE, SUITE 2 SUPERIOR COURTHOUSE GEORGET OWN, DE 19947 JUDGE Henry C. Davis, Esq uire Henry Clay Davis III, P.A. 207 E. Market Street P.O. Box 744 Georgetown, Delaware 19947 RE: John J. Klusman, Esq. Susan A. List, Esq. Tybout Re dfearn & Pell 300 Delaware Avenue, Suite 1110 P.O. Box 2092 Wilmington, Delaware 19899 George Englebrake v. CSI Enterprises C.A. No. 04A-03-002-RFS Date Submitted: Date Decided: September 9, 2004 December 22, 2004 Dear C ounsel: This is my decision regarding George Englebrake s appeal of the Industrial Accid ent Bo ard s de cision d enying h is petition to determ ine add itional co mpen sation d ue. For the reas ons set forth herein, the B oard s dec ision is affirm ed in part an d reversed in part and remanded for further proceedings consistent with this opinion. STATEMEN T OF THE CA SE On March 12, 2001, the Claimant, George Englebrake ( Englebrake ) was injured in a comp ensable w ork accide nt when he attemp ted to lift a solid c ore forklift tire in to his work van. At the time, he was an employee with CSI Enterprises ( CSI ). CSI agreed 1 that the injury w as comp ensable an d paid total d isability benefits to E nglebrake until July of 2002. On July 10, 2002, the parties signed a partial disability agreement. Then, on August 1, 2002, a document was signed by Claimant s attorney and CSI s attorney acknowledging that the Claimant was no longer totally disabled and that the he would not oppose CSI s termination petition. About ten to twelve months after his accident, Englebrake began to experience anxiety at tacks. In May of 2002, h e bega n seein g Dr. D avid A ugust ( Dr. Au gust ), a board certified psychiatrist, for treatment of the psychological symptoms he had been experiencing since the accident. Claimant discussed with the psychiatrist marital problems and his obsession with his inability to work. This was not the first time Englebrake had seen a psychiatrist. He had also been treated before the accident for marital difficulties with a previous wife and for alcohol abuse. Mr. Eng lebrake filed a Petition to D etermine A dditional C ompens ation Due with the Industrial Accident B oard ( the Board ), in order to seek payment for D r. August s services. A hearing was held on January 16, 2004 at which Dr. August testified by deposition. The Claim ant also testified and Dr. N eil S. Kaye ( Dr. Kaye ), another b oard certified psychiatrist, testified by deposition on behalf of CSI. In a decision dated February 13, 2004, the Board denied the petition. Englebrake has appealed that decision, claiming that the Board did not apply the correct standard of causation and that there was not substantial evidence sufficient to support its conclusions. 2 A. The Hearing Englebra ke first saw Dr. Aug ust on M ay 14, 2002 a lmost fou rteen mon ths after his accident. Dr. Augu st believed that he was ref erred to him by his primary care doctor, D r. Gabriel Somori ( Dr. Somori ), and by his lawyer because he was having trouble coping with th e pain. E nglebr ake ha d begu n havin g anxie ty attacks s ometim e after th e accid ent. He was afra id of leaving his hom e and was ob sessively thinking about the wo rk injury and abou t his fears of not being a ble to wor k again. H e was also concerne d about his relation ship w ith his w ife. Dr. August noted that the Claimant had had previous mental health problems before the acc ident, bu t the doc tor felt th ey were u nrelated to the pr esent o nes. Englebrake had been hospitalized for alcohol abuse in the nineties and had had marital difficulties with a previous wife. He had been treated with the antidepressants, Effexor and Prozac, prior to the accident. Dr. August continued the Claimant on the Effexor and increased h is dosage. T he doctor n oted that the m edication w as effective against both depression and panic disorders. Dr. August also prescribed Dexedrine to help Englebrake with the drowsiness side effect of his pain medications.1 Englebrake visited Dr. August about once every two weeks and sometimes more frequently. Dr. August testified that when he first saw the Claimant, he thought his depression was in complete remission. He was tre ating him for anx iety proble ms and to help h im man age his pain m edicatio ns. Englebrake claimed that he was no longer drinking. Dr. August observed that he was 3 having difficu lty adjustin g to the c hange s in his lif estyle cau sed by the pain an d disab ility. He was also having marital problems with his second wife. In addition, Englebrake was no long er able to pursue his hob by of rac ing cars . When he was questioned by counsel for CSI, Dr. August explained that he did not feel the fourteen month passage of time from the date of the accident to his first visit was abnormal. He believed it was acceptable because over time chronic pain gets worse and long-term pain exhausts a person s coping mechanisms. He hypothesized that a person with a back injury might find it hard to cope with the realization over time that he is not going t o heal a nd that h is life mi ght be f orever chang ed. Next, Mr. Englebrake testified that he had been taking Effexor, in a lower dose, for about four years and that some time before the accident he had seen a different psychiatrist. For his pain, Dr. Somori had prescribed him Oxycotin and Oxycodon. He went to see Dr. August because about ten to twelve months after the accident he had begun to have anxiety attacks when he realized his life had permanently changed. It was his idea to seek out a ps ychiatrist. In the nineties he was divorced from his first wife and had been prescribed Effexor to help him cope with the fallout from the divorce and custody issues. He was at some point hosp italized for alc ohol related problems , but claimed he had no t had a drink in about a year. In addition to increasing his dose of Effexor, Dr. August also prescribed Valium to him to help ea se the p anic atta cks. 4 Dr. Kaye saw Englebrake on two occasions, on January 16, 2003 and on Novemb er 10, 2003. He also reviewed the m edical and psychiatric records. Dr. K aye s diagnosis of the Claimant was the same as Dr. August s - a single episode of major depression that was in remission with the current treatment, alcohol abuse, panic disorder and agoraphobia.2 Englebrake had a normal mental status exam. He had sadness, but not to a clinical de gree, and h e had mo notony and d rowsines s, possibly due to the pain medications. Dr. Kaye noted that Englebrake had been taking 150 mg of Effexor before the accident and that his dosage was increased to 225 mg after he saw Dr. August. It was later increased again by ano ther 75 mg . Englebra ke was still d rinking w hen he m et with Dr. Kaye; however, his drinking was reduced and was even less at the time of the second meetin g. Dr. Kaye did not feel that E nglebrake s mental co ndition was related to the w ork injury. His alcoho l abuse predate d the inju ry and the major d epressio n was in remis sion. According to the doctor, he was on almost the same dose of Effexor before and after the accident. Dr. Kaye also stated that a panic disorder is not caused by a particular event or stressor, but is instead a long-standing condition that ebbs and flows. He believed that the fourteen month p assage of time from the accident to the Claima nt s first visit with Dr. August showed the symptoms could not have been causally related to the accident. He felt the time period indicated he really did not need the treatment and that the care he was 5 getting from his primary care physician was adequate. He pointed out that the psychotherapy was more focused on other aspects of the Claimant s life, rather than on pain m anage ment. When Englebrake met with Dr. Kaye in November of 2003, his condition was basically the same. His appointments with Dr. August had been shortened, and he expressed to Dr. Ka ye a desire to ha ve more tim e to discuss h is marital prob lems. He f elt his anxiety was much better, but it still flared up on occasion. Englebrake also expressed a desire to talk about olde r issues, such as his father s physical abu se and pro blems in his first marriage . He said his anxiety felt like w hat he used to feel wa iting for his fa ther to come home and ab use him . Dr. Kaye opined that with work-related injuries you do not get symptoms like the Claimant s. Generally, a doctor would expect to treat the patient for pain management and for depression secondary to the pain. He would expect to find post traumatic stress disorder. The symptoms of depression would appear fairly soon after the accident occurred. B. The Board Decision In its deci sion on F ebru ary 13 , 200 4, the Boa rd be lieve d the opin ions of D r. Ka ye to be more credible an d persuasive than those of Dr. Augu st. In finding that the work injury did not trigger the anxiety attacks, it was most persuaded by the fact that the Claimant had a history of panic attacks and that their latest manifestation did not occur 6 until ten to twelve months after the injury. It was also swayed by Dr. Kaye s testimony that En glebrak e s treatm ent issue s center ed on m arital pro blems a nd child hood is sues. The Board was not convinced by Dr. August s testimony because he could not provide them with a persuasive reason as to why so many months had lapsed before the first anxiety attack. In addition, while he stated that chronic pain can cause the psychiatric symptoms, he had agreed that Dr. Somori had the Claimant s pain under control. Dr. August also was not aware that Englebrake had signed an agreement terminating his total disability. Furthermore, the Board found M r. Englebrake s testimony to be inconsistent. He also could not adequately explain exactly what, because of the accident, it was that cau sed his panic attacks. M oreover, Englebrak e told the Board he had not had a drink for a year, although he had reported to Dr. Kaye in November of 2003, a bout th ree mo nths be fore the Board hearing , that he w as still drin king on occasio n. At issue in this case is whether the Board had substantial evidence to find the Claimant s psychiatric condition was not triggered or aggravated by the work-related accide nt. STANDARD OF REVIEW The Supreme Court and this Court repeatedly have emphasized the limited appellate review of the factual findings of an administrative agency. The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence. Johnson v. Chrysler Corp., 312 A.2d 64, 66-67 (Del. 1965 ); General Motors v. 7 Freeman, 164 A .2d 686 , 688 (D el. 1960 ), and to review questio ns of la w de n ovo, In re Beattie, 180 A.2d 741, 744 (Del. Super. Ct. 1962). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994 ); Battista v. Chrysler Corp., 517 A .2d 295 , 297 (D el.), app. dism., 515 A.2d 397 (Del. 1986). The appellate court does not weigh the evidence, determine questions of credibility, or make its own factua l finding s. Johnson v. Chrysler Corp., 312 A.2d at 66. It merely determines if the evidence is legally adequate to support the agency's factual findings. 29 Del. C . ยง 10142(d). DISCUSSION It is well accepted that an injured worker may recover for the full effect of an injury, including for a resulting psychological disorde r. Reese v. Home Budget C tr., 619 A.2d 9 07, 909 (Del. 19 92), quoting, Rice s Bakery v. Adkins, 269 A.2d 215, 216 -17 (Del. 1970). A pree xisting disease or infir mity, w heth er ov ert or late nt, do es no t disq ualif y a claim for w orker s com pensation if the emplo yment aggra vated, acce lerated, or in combination with the infirmity produced the disability. Id. at 910, citing, General Motors Corp. v. McNemar, 202 A.2d 803, 806-807 (Del. 1964). In other words, the employer takes the employee as it finds him. If the work-related injury precipitates or acceler ates a do rmant c onditio n, then a causal c onnec tion can be estab lished. Id. 8 The Su preme C ourt has ap plied the b ut for def inition of pro ximate cau se to workers compensation claims: The "bu t for" definitio n of prox imate caus e in the subs tantive law of torts finds equal application in fixing the relationship between an acknowledged industrial accident and its aftermath. If the worker had a preexisting disposition to a certain physical or emotional injury which had not manifeste d itself prior to th e time of the accident, an injury attributable to the accident is compensable if the injury would not have occurred but for the accident. The accident need not be the sole cause or even a substantial cause o f the inju ry. If the ac cident p rovide s the "se tting" or "trigger ," caus ation is sat isfie d for pur pose s of c omp ensa bility. Id. This is one of those cases where the Board was faced with conflicting opinions from two well-qualified psychiatrists. It had to evaluate those doctor s opinions and come to a conclusion. In such cases, it is not for the Court to substitute its judgment for that of the Board s, in determ ining whether to acce pt one opinion ove r the other. Dr. August believed the Claimant s condition was directly related to and triggered by the changes in his physical condition after the accident. Dr. Kaye, on the other hand, thought Englebrake s troubles were part of a long-standing psychological condition, resulting because of his marriages and childhood abuse. He felt that the accident could not logically have been the cause of his problems, given the nature of the symptoms and the long period of time b etween the acciden t and the first manifestation of h is symptoms. In sum, there was sub stantial evidence sufficient for the B oard to have chos en Dr. Kaye s opinion over Dr. August s. 9 The Claimant argues that the Board did not apply the proper standard in deciding this case. The Court finds however, that the proper standard was used. Given the lapse of time and the symptoms manifested, it is reasonable for the Board to have found that the Claimant s psychological condition was not triggered by the accident, but rather continued to exist in spite of it. The Board was familiar with the leading cases on the issue of pre-ex isting co ndition and co mpen sability of s ubseq uent trea tment, Reese, 619 A.2d 907 and McNemar, 202 A.2d 803. In its opinion, it accurately analyzed the opinions of the d octors in confo rmity with the app ropriate standa rds in tho se case s. Englebrake also argues that the Board did not adequately consider whether he should have been compensated for Dr. August s treatment, which ameliorated negative side effects of the pain medication. Dr. Kaye did not offer any competing opinion about Englebrake s prescription for Dexedrine. While the Court finds the Board s decision was supported by sufficient evidence regarding the issue of Claimant s panic disorder, general depression and ag oraphobia, it finds that the Bo ard did not address D r. August s treatment of the pain medication side effects with the prescription of Dexedrine.3 The case must be remanded in order for the Board to review and make findings about the necessity of that treatment he received from Dr. August and whether Claimant should be partially co mpen sated fo r it. 10 CONCLUSION Considering the foregoing, the decision of the Board is affirmed in part and reversed in part and is o therwise re manded for further f inding, con sistent with this opinion. IT IS SO ORDERED. Very truly yours, Richard F. Stokes cc: Prothonotary 11 ENDNOTES 1. On this subject, Dr. August testified: A Yes. In fact, I m actually able to help Doctor Somori quite a bit because some of his treatment has some unwanted cognitive side effects which have really been giving George a lot of trouble. For instance, the pain medication that George requires makes him very sleepy and lethargic, and hurts his concentration. And I have been able to remedy that through the use of Dexadrine. And this is an excellent chance for a psychiatrist to assist the chronic pain doctor in helping a patient receive good treatment for his chronic pain. So really the Dexadrine is being used for side effects of his pain medication, and that s a direct psychiatric intervention for assistance with pain management, actually. Q And is this a common technique for dealing with that problem? A It s not common, it s accepted, and there is sufficient documentation that this is considered standard of care. And if you need me to demonstrate that, I have some literature that supports the use of Dexadrine specifically for depression and it is known to help with alertness and narcolepsy. Specifically, this type of drug is approved for narcolepsy, and that s the type of symptom Mr. Englebrake was having; it was really a medication induced narcolepsy, and that s a common drug use for that. Dr. August s Dep. at 9-10, in App. to Cl. s Opening Brief. 2. Agoraphobia is an irrational fear of leaving the familiar setting of home, or venturing into the open, so pervasive that a large number of external life situations are entered into reluctantly or are avoided; often associated with panic attacks. PDR Medical Dictionary 37 (2d ed. 2000). Englebrake was afraid of leaving his home alone. 3. Dr. Kaye also noticed an improvement in the side effects with the change in medication from one visit to the next, as can be seen in his observations of the Claimant during his two appointments on January 16, 2003 and November 10, 2003: A. [discussing January 16th visit] . . . He was quite adamant that he did not 12 have a psychological, emotional, or psychiatric condition or symptoms that would prevent him from either obtaining or maintaining a job. He felt he could sustain good attention which would be necessary to work. He thought he had some side effects from the pain medications, particularly the opiate analgesics, the prescription narcotics that he was getting, but thought he had gotten used to them. I actually thought that they might have some effect on him, although, again, he did loosen up pretty well during the interview. I thought he might have been a little bit drugged, frankly, from them. ... A. . . . So overall, a fairly normal mental status exam. The pertinent findings being a little bit of sadness but not to a clinical degree, a little bit of flattening of affect and monotonal quality, and a little bit of drowsiness, probably a medication side effect at that point. ... A. [discussing November 10th visit] Actually, I would probably say that things were pretty much the same. . . . Overall, he was actually more awake and alert, and some of what I thought was a little bit of drug effect in the first evaluation was not noted. Dr. Kaye s Dep. at 9, 11, 18, in App. to Cl. s Opening Brief. 13
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