Testa v. State of Delaware.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY BEVERLY TESTA, ) ) ) ) ) ) ) ) ) Appellant, v. STATE OF DELAWARE, Appellee. C.A. No. 08A-01-002-JEB Submitted: July 17, 2008 Decided: August 5, 2008 Appeal from a Decision of the Industrial Accident Board. Affirmed. OPINION Appearances: Joseph J. Rhoades, Esquire, and A. Dale Bowers, Esquire, Wilmington, DE. Attorney for Beverly Testa. John J. Klusman, Jr., Esquire, Wilmington, DE. Attorney for the Employer/Appellee. JOHN E. BABIARZ, JR., JUDGE This is the Court s decision on Claimant Beverly Testa s appeal of a decision of the Industrial Accident Board ( Board ) denying her petit ion for disability b enefits . The Board found that no work-related accident had occurred. For the reasons explained below, the Board s decision is affirmed. In December 2006 Claimant worked for the State of Delaware as a bus driver for the Delaware Administration for Regional Transit ( DART or Employer ). Claimant asserted that on December 27, while she was driving through Wilmington, her bus hit two potholes, causing the driv er s sea t to drop . Claimant experienced severe pain in her back and right leg and had difficulty finishing her route. She sought immediate treatment at the Wilmington Hospital Occupational on five separate occasions. She also began physical therapy at Christiana Care Physical Therapy but was referred to William T. Atkins, Jr., M.D., because the physical therapy aggravated her symptom s. Dr. Atkins ordered an EMG and an MR I. Dr. Atkins diagnosed Claimant with a lumbar strain and sprain, lumbar radiculopathy, and lumba r disc pa tholog y. Claimant filed a Petition to Determine Compensation Due in February 2007, in which she alleged that sh e injured he r neck and low back in the accide nt. The Board held a hearing at which Claimant testified on her own behalf, each party presented expert medical testim ony, and DART presented the testimony of the mechanic who inspected Claimant s bus after the inciden t. Claimant s treating physician, Dr. Atkins, testified that he reviewed the history of Page 2 Claimant s back problems and offered his opinion that Claimant s current back problems are a result of the alleged work incident. Andrew Gelman, O.D., testified on Employer s behalf. He also rev iewed her me dical rec ords, no ting her previo us back proble ms, including disc bulges and degeneration. His physical examination caused C laimant disc omfort in the neck area. Dr. Gelman acknowledged that Claimant went to Wilmington Hospital right after the incident, but he found that she was not forthcoming about her history of back problems. Lynn Proksch, master mechanic for DART, testified that he received a work order to inspect and repair the seat of a particular bus and submit a report on his findings. He removed the seat, inspected the scissor-shaped frame, the air system and levers and found no damage to any of the parts . There were no punctures in the seat. Mr. Proksch concluded that no repairs were needed. He testified that the seat could not have collapsed without sustaining some kind of damage. On cross-examination, Mr. Proksch conceded that he could not verify that the bus he inspected was the bus Claimant was driving, although the work order identified the bus by numb er. Following the hearing, the Board issued a written decision denying Claimant s petition based on its finding that Claimant had not carried her burden of proving that a workrelated accident occurred as she described it. The Board offered four reasons for its conclusion. First, the Board found that Claimant s testimony about her seat dropping to be unbelieva ble in light of Mr. Proksch s testimony. He stated that if the seat collapsed the re would have been damage, and there was none. He also stated that the seat cou ld not collapse Page 3 if the air bag was inflated, that is, in its norm al condition ; Claimant d id not hear a ny air escape from the seat and there was no puncture in the bag. Second, the Board found Claimant s version of the accident to be unbelievable. She stated that she had such extrem e pain in her low back and right leg that she to wrap her left leg around the steering column to drive the bus. She stated that her seat was tilted forward so far that if she let go of the steering wheel, she would slide forward into the dashboard. Claimant finishe d her ro ute, dro ve to the bus yard and dro ve hom e. She did not report the accident to d ispatch or m ake any othe r type of call. Third, the Board found that Claimant s testimony about her past medical history was less than clear and she was not forthco ming abo ut previous back pain until forced to be. This was dam agin g to h er credib ility. Fourth, other than medical documents which reported Claimant s version of the accident, Claiman t presented n o evidenc e to support her assertion that there was an accident or that she w as injured in it. Claimant s low back treatment in D ecember 2006 and January 2007 was not found to be evidence of an acciden t, especially in light of the fact that Claimant had had prior low back and neck problems w hich could cause flare-up of symptoms. Claimant appealed the Board s decision to this Court. On appeal from a decision of an administrativ e board, this C ourt is limited to a determin ation of w hether or no t there is substantial in the record to support the Board s factual findings.1 Substantial evidence is 1 General Motors Corp. v. Freeman, 164 A.2d 686 (Del. Super. Ct. 1960). Page 4 relevant that a reasonable person might accept as adequate to support a conclusion.2 The credibility of witnesses, the weight and reasonable inferences to be drawn therefrom are for the Board to determine.3 When two expert witnesses offer diff ering opinio ns, the Boa rd is free to accept either opinion.4 Claimant argues first that the Board s finding that Claimant lacked credibility does not comport with the testimony presented at the hearing and is not based on substantial evidence. She asserts that the Board placed undue weight on opinions offered by Dr. Gelman in his depositio n. Claiman t argues that th e Board s credibility finding was based on the testimony offered b y both Dr. G elman an d Claima nt herself, w hom the B oard did n ot find to be forthright in regard to her medical history or the manner in which the alleged accident occurred. When examined by Dr. Gelman Claimant did not disclose the fact that she had had an earlie r back in jury and s he forg ot earlier treatme nt she h ad rece ived fo r back p ain. The Board was highly skeptical about the aftermath of the alleged accident. The Board doubted whether Claimant could have driven with her leg wrapped around the steering column and found it worked against her that she did not call dispatch at the time the accident occurred, but finished her route. The Court concludes that the Board s finding that Claimant was not credible is based on substantial evidence. Based on the testimony of Dr. Gelman, 2 Streett v. State, 669 A.2d 9 (Del. Super. Ct. 1995). 3 Coleman v. Dep t. of Labor, 288 A.2d 285 (Del. Super. Ct. 1972). 4 Id. Page 5 Mr. Prokscht and Claimant herself, the Board concluded that no work-related accident occurred. That finding is also supported by substantial evidence and is not an abuse of discretion. The consequence of that finding is that no discussion of the disparities in the medic al testimo ny is requ ired. The decision of the Industrial Accident Board denying Claimant Beverly Testa s petition for disability benefits is Affirmed. It Is So ORDERED. Judge John E . Babiarz, Jr. JEB,jr/ram /bjw Original to Prothonotary Page 6
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