RIMSI Corporation v. Massey ( 2020 )

IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE
RIMSI CORPORATION, )
)
Appellant, )
)
v. C.A. No. N19A-12-006 DCS
)
TIMOTHY MASSEY, )
)
Appellee. )
)
Submitted: August 17, 2020
Decided: November 10, 2020
Upon Appeal from the Industrial Accident Board–
AFFIRMED
OPINION
Joseph Andrews, Esquire and Taylor E. Trapp, Esquire, Attorneys for Appellant.
Frederick Freibott, Esquire, Attorney for Appellee.
STREETT, J.
Introduction
RIMSI Corporation (the “Employer;” the “Appellant”) appeals the Industrial
Accident Board’s decision to deny its Petition Seeking to Terminate Total Disability
Benefits for Timothy Massey (the “Claimant;” the “Appellee”) in relation to
Claimant’s work-related injuries.
The Board chose to rely on Claimant’s expert over Employer’s expert in
finding that Claimant continues to be totally disabled from work-related injuries and
denying Employer’s petition. Employer appeals the Board’s decision to this Court,
arguing that the Board committed legal error, abused its discretion, and that its
decision is not supported by substantial evidence.
For the following reasons, the Court affirms the Board’s decision.
Statement of Facts
On April 19, 2012, Claimant was involved in a work-related accident while
working for Employer. Claimant, who was a maintenance person, fell down some
stairs at his place of employment (the Iron Hill Apartment complex which was
owned by Employer).
Between January 2014 to September 2017, Claimant underwent three cervical
spine surgeries, two lower back surgeries, and one shoulder surgery. He also takes
22 prescribed narcotic pills per day for pain.
1
The parties stipulated that, as a result of the work accident, Claimant suffered
compensable physical injuries (to his lumbar spine, cervical spine, and left shoulder)
and that he also was suffering from depression. An Agreement as to Compensation
was also attached to the stipulation specifying that Claimant was totally disabled
from October 11, 2017 following surgery on Claimant’s lumbar spine. The
agreement was approved by the Department of Labor.
Since October 11, 2017, Claimant has been receiving $622.05 per week, based
on an average weekly wage of $1,059.44.
On June 28, 2018, as part of a Defense Employee Medical Examination, a
functional capacity evaluation was performed on Claimant. It determined that
Claimant was capable of a part-time sedentary to light-duty job.
On November 26, 2018, Employer filed a Petition Seeking to Terminate Total
Disability Benefits, contending that Claimant is able to return to work in a limited
duty capacity.
In addition, Claimant also has throat cancer, prostate cancer, and a detached
retina that are unrelated to the work injuries.
Procedural History
On September 11, 2019, a hearing was held before the Board. Employer’s
live witnesses were Claimant and Dr. Barbara Riley, a vocational rehabilitation
counselor. Employer’s deposition testimony consisted of Employer’s medical
2
expert, Dr. Lawrence Piccioni. Claimant’s live witnesses were Claimant (who
testified on his own behalf) and Jose Castro, a rehabilitation counselor. Claimant’s
deposition testimony consisted of the testimony of Claimant’s medical expert, Dr.
Bruce Rudin.
Claimant, testifying as a witness for Employer, said that he is 65 years old,
attended high school but did not graduate, and did not obtain a GED.1 Claimant
worked for Employer as a maintenance technician. His duties included supervising
a maintenance crew, installing air conditioners, painting, drywall, and making
various repairs for the Iron Hill Apartment complex.2 Prior to working for
Employer, Claimant worked as a maintenance mechanic for Mid Atlantic
Corporation and as the first line supervisor of production for Zenith.3 Claimant
acknowledged that he has supervisory skills.4
Claimant also testified that he is currently able to do some cleaning and
cooking at his home and that he is able to drive sometimes, but that his ex-wife drove
1
The Board Hearing Transcript, at 9-10.
2
Id. at 10-11.
3
Id. at 12.
4
Id.
3
him to the hearing.5 Claimant stated that he spends most of his time watching TV
and taking naps to get off of his back.6
Additionally, Claimant testified that his computer skills7 are limited to the use
of email and he does not know how to surf the internet or how to get onto the
computer.8 If he needs to use the computer, he asks his wife or daughter for help.9
Claimant also has a flip cell phone.10
He stated that if there were jobs available to him, it is doubtful that a family
member would be able to drive him to work, he only drives about five miles, and he
would be willing to take public transportation if available.11 Claimant testified that
he applied to twenty jobs online, applying for “whatever that [he] felt that would call
[him] back.”12 Claimant explained that he followed up with the potential employers
5
Id.
6
Id. at 14.
7
Id. at 13.
8
Id.
9
Id.
10
Id.
11
Id. at 12-13.
12
Id. at 16.
4
by calling them and was told that they would get back with him13 but none of the
potential employers contacted him.14
Employer’s counsel asked Claimant whether he wanted to work and the
following exchange occurred:
Q. Do you want to work?
A. No, I can’t work. I cannot work.
Q. My question is, do you want to work?
A. No.
Q. Okay.
A. No.
Q. Do you want to retire?
A. Yes.
Q. Okay. If an employer would offer training to teaching [sic] you
skills for a job that you’ve never previously performed, would you be
willing to learn?
A. No, I’m not interested in working at all. I can’t work at all.15
Dr. Riley, Employer’s witness, testified that she has been working in the field
of vocational rehabilitation since 1981.16 Employer requested that Dr. Riley perform
a job survey investigation to determine job availability within Claimant’s
capabilities.17 Dr. Riley stated that she asked to meet with Claimant but that the
13
Id.
14
Id.
15
Id. at 17.
16
Id. at 19.
17
Id. at 19.
5
meeting was never authorized by Claimant’s counsel.18 However, she stated that she
was able to review Claimant’s medical records and history and that she relied on
Claimant’s restrictions as contained in the records.19
Dr. Riley testified that it was her understanding that Claimant was restricted
to sedentary work on a part-time basis.20 She testified that the functional capacity
evaluation showed:
That [Claimant] could do part time work up to six hours a day and that
some of those duties also involved – some of the capabilities also
include some light duty work based upon some of the lifting and
carrying that he exhibited during that. That he could work six hours a
day, he could stand for two hours – up to two hours, walk from one to
two hours, occasionally lift ten to 17 pounds. Kneeling and crawling
were to be avoided. He could carry 22 pounds with his right upper
extremity and 17 with the left and that he could occasionally bend,
squat, climb stairs. Occasionally use his feet for repetitive motions and
also have the opportunity to change position to remain comfortable
while he was working…21
Concerning Claimant’s employment history, Dr. Riley testified that Claimant
did “electrical work or something similar in maintenance,” worked for a sound
proofing company, worked for a company that made credit cards, delivered
18
Id. at 20.
19
Id. at 22, 24.
20
Id. at 25.
21
Id. at 25-26.
6
furniture, and did “work in all the trades.”22 She stated that Claimant’s position as a
supervisor would be considered a skilled position “because of the nature of the
activities that he did.”23
Dr. Riley stated that she looked for jobs that would be appropriate for
Claimant in Kent County and New Castle County and that she found 22 jobs.24 She
said that many of the locations were available by public transportation, nine of the
jobs were within 30 miles of Claimant’s residence, and seven of the jobs were within
ten miles.25
According to Dr. Riley, she found the jobs by searching the internet or in
person.26 She stated that she would then call the potential employers and inform
them about Claimant, his restrictions, his capabilities, his education, and his work
history.27 She also stated that she went to the locations, talked to the employers
about the positions, observed the jobs, and confirmed that they would accept an
application from a person with Claimant’s background and capabilities and give him
22
Id. at 22-23.
23
Id. at 23-24.
24
Id. at 26, 28.
25
Id.
26
Id.
27
Id. at 27.
7
the same consideration as any other qualified applicant.28 The positions included
customer service representative, surveillance officer, security guard, production
sorter, host, asset protection person, sales person, coordinator, and receptionist.29
The average weekly wage of the positions was $246.04.30
Dr. Riley testified that she did not believe that anything precluded Claimant
from working at any of the positions that she found.31 For the positions requiring
computer skills, she stated that Claimant could take classes at the Dover Public
Library and learn computer skills within one to two hours.32
On cross-examination, Dr. Riley stated that if Claimant would be unable to
drive to work he could apply for impaired related work expenses (“IRWE”) that
would pay for the cost of specialized transportation to and from work, the cost of
hiring someone to help him get ready for work in the morning, the cost of hiring a
non-impaired person to do the part of his job that he would be unable to do because
28
Id. at 27, 32-33.
29
Id. at 30.
30
Id. at 29.
31
Id. at 33.
32
Id. at 34.
8
of his disability, and the cost of training to learn how to use impairment-related
specialized equipment.33
Dr. Riley also said that she told the potential employers that Claimant is on
prescription medication.34 However, she did not tell them that he takes 22 narcotic
pills a day.35
Dr. Piccioni testified by deposition as Employer’s medical expert witness and
said that he is a board certified orthopaedic surgeon and certified workers’
compensation provider.36 Dr. Piccioni stated that he saw Claimant four times
(September 8, 2015; July 9, 2016; June 28, 2017; and September 18, 2018). 37 He
also said that he reviewed the medical records, Dr. Rudin’s deposition, Dr. Riley’s
labor market survey, and Claimant’s functional capacity evaluation.38
Dr. Piccioni opined that, although Claimant’s subjective complaints have not
improved, “objectively he had really no evidence of significant radiculopathy either
upper or lower extremity when you’re dealing primarily with cervical and lumbar
33
Id. at 35-36.
34
Id. at 43.
35
Id.
36
Dr. Piccioni’s Deposition, at 4.
37
Id. at 8.
38
Id. at 8-9.
9
areas.”39 He also stated that X-rays “had shown eventually, particularly in the
cervical spine, healing of the areas that were treated surgically.” 40 During
Claimant’s most recent visit, he complained of pain primarily in the lumbar area and
cervical area.41
During Claimant’s June 28, 2017 visit, Dr. Piccioni described Claimant as
ambulating with a steady gait using a walker, he could walk without the walker, and
he had a slightly flexed forward posture.42 Dr. Piccioni stated that Claimant’s “[g]ait
and station were normal, hip heights were equal, no spasm of the lumbar spine, mild
tenderness subjectively on the paraspinal of the lumbar area, no Gibbus deformity,
no pain to percussion, no tenderness over the SI joints.”43 In addition, Dr. Piccioni
noted that the sciatic notch was negative for tenderness but that Claimant exhibited
possible Waddell’s signs in the seated position.44 He also stated that Claimant’s
39
Id. at 12.
40
Id.
41
Id. at 13.
42
Id.
43
Id. at 13-14.
44
Id. at 14.
10
sensory examination was normal, he had 5 over 5 strength in all dermatomes, and
there was no calf or thigh atrophy.45
Dr. Piccioni then issued a physical capacities evaluation concerning
Claimant’s return-to-work capabilities.46 Dr. Piccioni advised the following work
restrictions:
He could work four hours. He could sit three hours, stand two hours,
drive two hours. The DOT classification sedentary, which was ten-
pound maximum, bending was restricted to 25 percent, twist and
turning, 25 percent, repeated arm motions and above shoulder level
were 75 percent each. He could not do any kneeling, squatting,
crawling, or climbing. He was allowed to operate foot controls, and
listed this as permanent restrictions and that he was at maximum
medical improvement.47
On September 18, 2018, Dr. Piccioni re-examined Claimant.48 Dr. Piccioni
testified that Claimant walked using a cane, his gait was slow and steady but not
antalgic, and there was no spasm of the lumbar spine.49 In addition, Dr. Piccioni
reported that Claimant had mild tenderness to palpitation to the lower lumbar area,
his hip heights were equal, and his motor strength was 5 over 5 in all planes. 50 He
45
Id. at 14-15.
46
Id. at. 15.
47
Id. at 16.
48
Id.
49
Id. at 16-17.
50
Id. at 17.
11
also noted that there was no atrophy in the calf or thigh, no sciatic tension signs with
the straight leg raise test, and a normal sensory examination.51 He stated that the
neurological examination showed “some very light hypoesthesia” in the lateral
aspect of the calf and “some patchy hypoesthesia” on the dorsum of the foot and
planter aspect of the foot.52 Dr. Piccioni did not note any possible Waddell’s sign in
this examination.53 As a result of this examination, Dr. Piccioni recommended the
same work restrictions as he did in 2017.54
Dr. Piccioni also testified about Claimant’s comorbidities.55 He noted that
Claimant has throat cancer, a detached retina, and prostate cancer. 56 He stated that
these comorbidities are not related to the work accident.57 Dr. Piccioni opined that
Dr. Rudin relied on the fact that Claimant was 65 years old and had comorbidities
51
Id.
52
Id. at 17.
53
Id. at 18.
54
Id. at 20.
55
Id. 18-19.
56
Id. at 19.
57
Id.
12
when placing Claimant on total disability even though these conditions were not
related to the work accident.58
In addition, Dr. Piccioni reviewed the 22 jobs listed in Dr. Riley’s labor market
survey.59 He believed that Claimant could perform all of the jobs with the possible
exception of one. He noted that a position at Dover Downs required 20/20 vision
and that Claimant’s history of having a detached retina (a condition unrelated to the
work accident) might exclude him from that position.60
Concerning Claimant’s functional capacity evaluation, Dr. Piccioni noted that
there were some minor inconsistencies but that “on the whole it would be considered
a valid study.”61 Dr. Piccioni stated that the report showed that Claimant is capable
of working a sedentary to light duty job between 4 to 6 hours a day, which is similar
to Dr. Piccioni’s findings.62 He also pointed out that the functional capacity
evaluation took into account Claimant’s issues that are not related to the work
accident but still found that he was capable of work.63
58
Id. at 25-26.
59
Id. at 22.
60
Id. at 23.
61
Id. at 21.
62
Id. at 21-22.
63
Id. at 28-29.
13
In conclusion, Dr. Piccioni stated that, based on the records and his
examination of Claimant, it was his opinion that there is nothing related to the work
accident that can keep Claimant out of work.64
On cross-examination, Dr. Piccioni admitted that his September 2018
examination of Claimant took between 30 to 45 minutes65 and he did not examine
Claimant’s shoulder.66 He also testified that he did not know the dosage of
Claimant’s narcotic medication but that Claimant should remain on narcotic
medications.67 He further admitted that he was concerned that Claimant could be
driving while being prescribed narcotic medications.68 Concerning Claimant’s pain,
Dr. Piccioni opined that Claimant was exaggerating.69
Claimant then testified on his own behalf. He stated that he recently had an
ablation and that it helped but “[n]ot all the way.”70 He said that he takes narcotic
64
Id. at 31.
65
Id. at 32.
66
Id.
67
Id. at 34.
68
Id. at 46.
69
Id. at 44.
70
The Board Hearing Transcript, at 67.
14
medication amounting to 22 pills a day.71 He is on a Lidoderm patch, takes
Oxycodone three times a day, and takes, Oxycontin two times a day. 72 He also takes
Skelaxin, Valium, and Voltaren topical gel.73
Claimant further testified that he does not sleep well and usually wakes up at
3:00 a.m. or 4:00 a.m.74 He said that he is only able to drive within five miles due
to his neck and back issues75 but he does not take his narcotics before driving because
he fears that he will get a DUI.76 In addition, the weather affects his pain and it is
necessary for him to use a cane to walk.77 He is unable to perform any tasks other
than doing dishes and folding laundry.78
71
Id.
72
Id.
73
Id. at 68.
74
Id.
75
Id.
76
Id. at 69.
77
Id.
78
Id. at 70.
15
Claimant also stated that his condition makes him feel like a burden to other
people and that he is not a man.79 He is currently receiving psychological treatment
for his injuries80 and is on Valium for his nerves.81
Concerning his computer skills, Claimant testified that he is unable to log onto
a computer (his daughter logs on for him).82 He also needs his daughter to sign into
his email account and he does not know his password for his computer.83
Claimant then described his pain.84 He testified that he has pain in his neck,
back, and shoulder every day.85 His pain is worse in his lower back and he has
radicular pain in his lower back, neck, arm, and left leg.86 Claimant’s pain becomes
worse when he is active and, on a scale of 10 (with 10 feeling as if your thumb is
slammed with a hammer), Claimant stated that his pain scale on a daily basis is a 6-
79
Id.
80
Id.
81
Id.
82
Id.
83
Id. at 70-71.
84
Id. at 70.
85
Id.
86
Id. at 71-72.
16
7 in his neck; a 6 in his shoulder; and an 8 in his lower back. 87 He said that he
experienced increased pain for about four days after his functional capacity
evaluation and that he could not have performed it again until about five to six days
later.88
Claimant testified that he applied to 20 jobs at the instruction of his lawyer. 89
His daughter helped him to apply using an I-Pad, he made some follow-up phone
calls after applying, and he never received any calls back.90 He stated that he does
not think that he could work and that if he were an employer he would not hire
himself.91 He also testified that he does not have training to be a receptionist,
restaurant greeter, surveillance officer, ticket taker, fast food crew member, cash
register or credit card machine operator, waiter or server, greeter at a car dealership,
customer service representative, or travel planner.92 He also does not believe that he
can work as a grounds keeper, food delivery person, or a forklift driver.93 He also
87
Id. at 72-73.
88
Id. at 74-75.
89
Id. at 79.
90
Id. at 75.
91
Id. at 77.
92
Id. 77-78.
93
Id. at 79-80.
17
said that he does not want to do any of these jobs or be trained because he cannot
work.94
Mr. Castro testified as a witness for Claimant.95 Mr. Castro stated that he has
a master’s degree in rehabilitation counseling and that he has been performing
vocational rehabilitation work for 58 years.96 He reviewed Claimant’s medical
records, Dr. Riley’s labor market survey, the Defense Medical Examination, and the
functional capacity evaluation.97 He testified that Dr. Rudin (Claimant’s expert) said
that Claimant is totally disabled and that Claimant’s psychiatric report noted that
Claimant would be unable to work due to his psychological anxiety even if he did
not have physical problems.98
Mr. Castro also testified about the impact of a job search on Claimant and the
impracticality of Dr. Riley’s labor market survey.99 He explained that:
So when you have pain going on constantly, you’re having to take large
doses on medication to keep your pain somewhat controlled. You’re
never going to control it. When you have to take naps during the day,
it just doesn’t lend to someone hiring you. There is theoretical labor
94
Id. at 80-81.
95
Id. at 82.
96
Id.
97
Id. at 83.
98
Id. at 85.
99
Id. at 87.
18
market survey, there is the practical. Somebody could meet you in
person and say yeah, I want to work. No, it’s not going to happen.100
Mr. Castro testified that Claimant could “[a]bsolutely not” work in a customer
service industry type job that was included in Dr. Riley’s labor market survey.101
Next, Mr. Castro stated that, without considering Claimant’s pain and psychological
problems, there were only five or six jobs in the survey that Claimant would have
the experience to perform, including a ticket taker, production sorter at Goodwill,
and a crew member.102 According to Mr. Castro, Claimant has never done any type
of sales job and does not have any computer skills.103 Mr. Castro did not believe
that Claimant, in his physical condition, could complete a class to learn computer
skills.104 Additionally, Mr. Castro testified that employers would always say that
they would consider a person who does not have computer skills but it does not mean
that they would hire such a person.105 Mr. Castro also stated that “[m]entally
[Claimant] [is] a beaten man.”106
100
Id.
101
Id. at 88.
102
Id.
103
Id. at 88-89.
104
Id. at 89.
105
Id. Mr. Castro rhetorically asked: “Why would they hire someone as a customer service rep
who has been a maintenance man his whole life and doesn’t even know how to log on a computer?”
106
Id.
19
In addition, Mr. Castro did not believe that it was practical for Claimant to
take public transportation.107 He pointed out that it would take several hours by
public transportation for Claimant to get to Concord Pike (where some of the jobs
on the survey are located).108 On cross-examination, Mr. Castro admitted that he
does not have personal experience with taking public transportation to Concord Pike
but stated that its takes him approximately one hour and ten minutes to drive the
same distance in his personal car.109
Mr. Castro did not believe that Claimant could be gainfully employed for any
period of time.110 He also testified that there is not a stable labor market for Claimant
when his condition is considered.111 Mr. Castro believed that the only type of
employer that would hire Claimant would be a benevolent employer such as a
relative or a friend who is willing to put up with Claimant’s condition.112 Mr. Castro
107
Id. at 90.
108
Id.
109
Id. at 95.
110
Id. at 93.
111
Id. at 92.
112
Id.
20
testified that Claimant only says that he does not want to work and wants to retire
because “he’s not capable of doing stuff anymore.”113
Dr. Rudin (Claimant’s medical expert) affirmed, in his deposition, that he is a
medical doctor licensed in Delaware, trained in orthopaedic surgery, has a specialty
in the spine, and is a certified workers’ compensation specialist.114 Dr. Rudin first
saw Claimant on June 6, 2012 (about six weeks after the work accident).115 Claimant
explained that he fell down some stairs after tripping on a piece of wood and
experiences substantial neck and lower back pain.116 In total, Dr. Rudin has seen
Claimant almost 50 times.117
According to Dr. Rudin, Claimant had moderate signs of cervical myelopathy
(a severe compressive lesion of the cervical cord), which was irritating or
compressing the peripheral nerve root (of the central nervous system).118 Through
his course of treatment, Claimant underwent six surgeries to the neck, left shoulder,
113
Id.
114
Dr. Rudin’s Deposition, at 4.
115
Id. at 6.
116
Id. at 7.
117
Id. at 12.
118
Id. at 7.
21
and back (two on his lower back, three on his cervical spine, and one on his
shoulder).119
Claimant’s first surgery was an anterior discectomy and fusion at the C4-5
level.120 On January 21, 2014, Claimant had a left shoulder arthroscopic
debridement (rotator cuff repair), along with other procedures.121 On July 31, 2014,
Claimant had another surgery (to graft a portion of the spine) when it was determined
that he had not healed from his anterior discectomy. 122 On March 3, 2015, he had
back surgery (decompression).123 On December 15, 2015, Claimant had fascia
surgery in his neck.124 On September 21, 2017, Claimant had a decompression
procedure at the L4-5 level.125 In addition, Dr. Rubin testified that Claimant has
undergone 14 epidurals, 5 types of nerve root blocks, and 1 ablation.126
119
Id. at 7-8.
120
Id. at 8.
121
Id. at 9.
122
Id. at 9-10.
123
Id. 10-11.
124
Id. at 11-12.
125
Id. at 12.
126
Id. at 13.
22
Dr. Rudin believed that Claimant would not get better and that he is at
“maximum medical improvement.”127 He explained that Claimant’s “other medical
comorbidities… sort of make him a difficult patient to heal metabolically.” 128
Additionally, the fact that Claimant is “chronically on opioid medication and a
chronic pain patient… preclude[s] [Claimant] from being any better than he
currently is.”129
Dr. Rudin then described his findings made during Claimant’s last two
visits.130 During the February 27, 2019 visit, Claimant had a primary complaint of
lower back pain (Dr. Rudin did not deal with Claimant’s neck because he focused
on the back).131 The ablation did not provide Claimant with any significant relief,
other than at most a 20 percent reduction in pain, and he “continued to have sharp
pain in his lower back and down his left leg with numbness and tingling.” 132 Dr,
127
Id.
128
Id. at 11.
129
Id. at 13.
130
Id. at 14.
131
Id.
132
Id. at 14-15.
23
Rudin prescribed oral steroids to Claimant and scheduled a later appointment to
determine whether the ablation improves his pain.133
On April 10, 2019, Claimant returned to Dr. Rudin.134 Dr. Rudin testified that
his “clinical assessment at that point was that [Claimant] really wasn’t any better.”135
Claimant complained about pain up to his shoulder blades. 136 Claimant also
complained that his pain level was 8 on a scale 10, which Dr. Rudin noted was
consistent with prior pain levels.137
Dr. Rubin also reviewed the notes of Dr. Cagampan138 (who is treating
Claimant for pain).139 Dr. Cagampan’s notes showed that, on March 19, 2019,
Claimant complained of neck pain, low back pain, shoulder pain, and leg pain that
occurs all day, is consistent, and has occurred for six years.140 Claimant stated that
he had a burning pain in his knee, neck pain shooting through his left shoulder and
133
Id. at 15.
134
Id.
135
Id. at 15.
136
Id.
137
Id. at 15-16.
138
The record does not reflect Dr. Cagampan’s first name.
139
Id. at 16.
140
Id.
24
elbow, and an occasional tingling and numbness in his fourth and fifth fingers and
his left leg.141 The April 16, 2019 records state that that cold weather aggravates
Claimant’s pain in his neck and lower back, he has trouble sleeping, his daily
activities are affected, and he is getting more anxious.142 Dr. Cagampan’s note
concluded that Claimant is totally disabled.143
In addition, Dr. Rudin testified that Claimant uses Lidoderm patches and takes
oxycodone (10-milligram tablets three times a day), OxyContin (40-milligrams
twice a day), Skelaxin, Valium, and Voltaren topical gel.144 He also stated that
Claimant’s oxycodone use is the equivalent of taking 22 Percocets a day. 145 Dr.
Rubin stated that this is a lot of medication and equivalent to the amount that he
would give for a week to someone who had an operation.146 Claimant also uses a
cane to walk.147
141
Id. at 17.
142
Id. at 19.
143
Id. at 20, 33.
144
Id. at 17-18.
145
Id. at 18.
146
Id.
147
Id.
25
Dr. Rudin then discussed the disability status of Claimant.148 In a disability
form dated from 2015, Dr. Rudin’s prognosis was that Claimant was “[c]ompletely
and totally disabled from any and all gainful employment due to his pain.” 149 Dr.
Rudin wrote that Claimant could rarely lift less than 10 pounds and could never lift
more than 10 pounds.150 He also wrote that Claimant is limited to sitting for 30
minutes, standing for 20 minutes, and that in the total course of a day he is limited
to less than two hours each for sitting, standing, and walking. 151 During an eight-
hour work period, Claimant would need to lie down for up to two hours; he could
not twist, stoop, crouch, climb, or reach, and he would need to take three to four
unscheduled breaks a day.152 He also wrote that Claimant would need to use a cane,
his concentration is severely impacted, he would be unable to drive, and he suffered
from drowsiness.153 Dr. Rudin wrote that Claimant “has limitations that are
148
Id. at 20.
149
Id. at 24-25.
150
Id. at 25.
151
Id.
152
Id. 25-26.
153
Id. at 26.
26
significant in an 8-hour workday” and that he would need to miss more than four
days each month.154
Dr. Rudin also testified that he determined that Claimant was incapable of
even low-stress jobs, his emotional and physical impairments are reasonable and
consistent with his symptoms and functional limitations, and that he classified
Claimant as “totally out of work.”155
Dr. Rudin stated that he has had Claimant on total disability following his first
surgery.156 In addition, Dr. Rudin stated that he wrote that Claimant was
permanently totally disabled.157 In response to the functional capacity evaluation
that determined that Claimant could perform part-time sedentary work, Dr. Rudin
stated:
So I think that that functional capacity might give you a viewpoint as
to what the guy is capable of doing once over a couple-hour period, but
it doesn’t really actually mean that I would release him to work -- I just
wouldn’t release him to work.158
154
Id. at 27.
155
Id.
156
Id. at 28.
157
Id. at 29.
158
Id. at 32.
27
On cross-examination, Employer’s counsel asked Dr. Rudin about the
relationship between Claimant’s cancer and his total disability. 159 The following
exchanged took place:
Q. Doctor, if we took out the cancer diagnosis that you talked about,
would you believe he would be able to work?
A. No, I don’t think the cancer is what makes him bad; I think it’s the
surgeries, his spine injuries, and the medications that he’s on.
Q. And when you say medications that he’s on, you’re excluding any
medications for cancer, right?
A. Well, the medications he’s taking aren’t for cancer; his prostate
doesn’t hurt and he’s sort of over his neck surgery, other than the fact
that he’s hoarse.
Q. So he’s not taking any medication for cancer, right?
A. He’s not taking -- the medications that we spoke about are not for
cancer; they are all related to his spine.
Q. And those are the only ones you say would keep him out of work?
A. Yes. I mean, he might be on medication for his prostate, but that
wouldn’t be negatively impacting his ability to work.160
Dr. Rudin also testified that, despite Dr. Riley’s labor market survey,161 “I
don’t believe he’s capable of working any job… I don’t think he can work.”162
However, Dr. Rudin then stated that he has not restricted Claimant’s home
activities.163
159
Id. at 34.
160
Id. at 35.
161
Id.
162
Id.
163
Id. at 36.
28
On November 26, 2019, the Board issued its decision in favor of Claimant.
The Board stated that:
In a total disability termination case, the employer is initially required
to show that the claimant is not completely incapacitated. In response,
the claimant may rebut that showing, show that he or she is a prima
facie displaced worker, or submit evidence of reasonable efforts to
secure employment that have been unsuccessful because of the injury.
The employer would then have the burden of showing the availability
of regular employment within the claimant’s capabilities.164
After weighing the evidence, the Board found “that the Employer has failed
to meet its burden to prove that Claimant is physically capable of working in some
capacity.”165 The Board relied “on the opinion of Dr. Rudin over that of Dr. Piccioni
and [found] that Claimant continues to be totally disabled from the competitive labor
market.”166 The Board explained that:
…Dr. Rudin has been treating Claimant since 2012 and has seen
Claimant over fifty times, which provides him with significantly more
first-hand knowledge of Claimant’s physical condition and capabilities
in relation to his work injuries than Dr. Piccioni. The Board therefore
gives Dr. Rudin’s opinion about Claimant’s work capabilities
significant weight.
…
According to Dr. Rudin, Claimant is now a chronic pain patient who
takes a large amount of opioid medications and other medications
related to his work injuries. Dr. Rudin does not believe Claimant will
get any better and has reached maximum medical improvement.
164
The Board’s Opinion, at 17.
165
Id. at 21.
166
Id. at 18.
29
…
Dr. Rudin insisted that Claimant is really nonfunctional and is not
capable of working in any capacity.167
In addition, the Board noted that Dr. Rudin’s decision to place Claimant on
disability was consistent with Dr. Cagampan’s (Claimant’s pain management
physician) decision to place Claimant on total disability.168 Furthermore, the Board
found that Claimant’s testimony, describing his high levels of daily pain in his neck,
back, shoulder, and leg, supports the Board’s conclusion that he is totally disabled
from work.169 The Board also pointed out that Mr. Castro did not believe that
Claimant could work because he takes large doses of narcotic medications and has
to take naps during the day.170
The Board also rejected Employer’s contention that Claimant should be
excluded from total disability benefits because he testified that he wants to retire.171
The Board noted that Claimant has been on total disability since the work accident,
he has never returned to work, he is not able to work because of his injuries, and his
167
Id. at 18-20.
168
Id. at 19.
169
Id. at 20.
170
Id.
171
Id. at 21.
30
injuries are related to his work accident.172 In addition, the Board found that
Claimant’s statement that he wants to retire is motivated, at least in part, by “his
inability to return to productive work activities due to the work injuries.”173
The Board also considered whether Claimant’s comorbidities were a cause of
Claimant’s inability to work174 and found that there is little evidence that Claimant’s
throat cancer, prostate cancer, and detached retina have affected his ability to work
or motivated his statement that he wants to retire.175
On December 19, 2019, Employer filed an appeal of the Board’s decision to
this Court.
On June 22, 2020, Employer submitted its Opening Brief.
On July 13, 2020, Claimant submitted his Answering Brief.
On July 20, 2020, Employer submitted his Reply Brief.
Parties’ Contentions
Employer suggests that the Board’s decision in favor of Claimant was, in part,
the product of the Board’s hostility towards Employer. Employer writes that the
Board “showed a capricious disregard for competent evidence in the record and
172
Id. at 22.
173
Id.
174
Id.
175
Id.
31
failed to provide the appropriate analysis based on that record out of apparent
hostility toward Employer’s position overall.”176
Employer first argues that Claimant is not entitled to workers’ compensation
because he, allegedly, removed himself from the workforce, pointing out that
Claimant testified that he does not want to work and that he wants to retire.
Additionally, Employer argues that there is no testimony by Claimant that his lack
of desire to work is based on the industrial accident. Employer contends that, due
to Claimant’s testimony, the Board’s decision is arbitrary and capricious.
In addition, Employer argues that Claimant “literally testified that he
purposefully applied for jobs that he knew he could not perform in an effort to self-
sabotage the entire process.”177 According to Employer, “in order to rebut Dr.
Piccioni’s testimony that he was medically employable, Claimant was required to
“prove that he was a displaced worker by showing that he conducted a reasonable
job search but no one would hire him due to his physical restrictions from the
industrial accident.”178 Instead, Employer asserts, Claimant testified that he
knowingly applied for jobs that he would be unable to perform.
176
Employer’s Opening Brief, at 35. Although Employer accuses the Board of hostility against
Employer’s position, Employer does not articulate this contention or provide concrete support for
it.
177
Id. at 37.
178
Id.
32
Moreover, Employer argues that the Board committed legal error by relying
on Claimant’s experts’ testimonies. In addition, Employer asserts that the Board’s
decision lacks substantial evidence.
Furthermore, Employer states that the Board “attempt[ed] to couch its
decision by relying on Jose Castro[’s]” testimony when he stated that “Claimant
wants to retire because he does not believe he is capable of doing any job
anymore.”179 Employer argues that it was “arbitrary and capricious” for the Board
to rely on Mr. Castro’s testimony because “Mr. Castro cannot testify about the
mental impressions” of Claimant and because “Mr. Castro is not a psychiatrist.”180
Employer also points out that Mr. Castro agreed that there were five or six
jobs (out of the twenty-two listed by Dr. Riley) that Claimant could perform except
for Claimant’s psychological issues. As such, Employer asserts that the Board was
presented with “Dr. Piccioni, Dr. Riley and Claimant’s own expert Mr. Castro
unanimously testifying that Claimant could return to work in at least some of the
jobs provided by Employer’s labor market survey.”181
Additionally, Employer contends that the testimony of Claimant’s expert, Dr.
Rudin, should be discounted. Employer accuses the Board of “attempt[ing] to
179
Id. at 37.
180
Id. at 37-38.
181
Id. at 38.
33
bolster Dr. Rudin by stating that he found total disability to exist exclusively because
of the industrial accident and nothing else.”182 Employer states that the Board’s
bolstering of Dr. Rudin “is not borne out by Dr. Rudin’s own testimony.” 183
Employer writes: “Dr. Rudin blamed Claimant’s inability to work on such factors as
he is 65 years old, has prostate cancer and has throat cancer,” which are not part of
the work accident.184
Employer also writes that, “while Claimant may still complain about pain, the
evidence in the record shows that he actually is doing better now than he did when
he previously stipulated that he could return to work in 2017.”185
Claimant asserts that the Board clearly noted that Claimant was totally
disabled and was receiving total disability since October 11, 2017. Claimant also
notes that at the time of the accident he was “well below the standard retirement
age,” there is no evidence that he had plans of retiring before the accident, and he
explained that he is not interested in working because he believes that he is incapable
of working due to his work injuries.186
182
Id. at 39.
183
Id.
184
Id.
185
Id.
186
Claimant’s Answer, at 26.
34
Claimant also points out that Dr, Rudin and Mr. Castro both “repeatedly
testified that Claimant was permanently and totally disabled and unable to work in
any capacity due to his workplace injuries.”187 In addition, Claimant argues that
neither Dr. Rudin nor Mr. Castro believed that Claimant could work due to his
mental and emotional state related to his work injuries.
Moreover, Claimant contends that the fact that he filled out approximately
twenty job applications demonstrates that he had not voluntarily left the workplace.
He claims that he filled out the applications “despite not believing he met the
qualifications.”188 Claimant argues that due to the fact that Claimant was unable to
perform work in any capacity, any job application he submitted could be deemed an
unreasonable search. Therefore, Claimant states, the Board rightfully did not allow
Claimant’s job search to have any bearing on its decision.
In addition, Claimant contends that the Board’s acceptance of Dr. Rudin’s
testimony is supported by substantial evidence. Claimant explains that the Board
was free to accept the testimony of Dr. Rudin over Dr. Piccioni’s testimony. In
making its finding, the Board pointed out that Dr. Rudin had seen Claimant over
fifty times since 2012 but Dr. Piccioni had only seen Claimant four times in four
187
Id. at 27.
188
Id.
35
years. Moreover, Claimant states that Dr. Rudin’s opinion was consistent with the
findings of Claimant’s pain management physician, Dr. Cagampan.
Following Claimant’s Answer, Employer submitted a Reply.189 Employer
purports that the Board erroneously considered Claimant’s comorbidities when
determining Claimant’s disability status. Employer quotes the Board’s statement
that “the Board recognizes that Claimant has co-morbidities that could affect his
ability to work and should therefore be considered in the Board’s analysis.”190
Employer suggests that the Board considered Claimant’s co-morbidities in support
of its determination that Claimant was totally disabled. Employer argues that the
Board “erred as a matter of law when they considered the co-morbidities, such as his
throat and prostate cancer, when they determined that he is totally disabled as
defined under the laws of workers’ compensation.”191
Employer also writes that “Claimant’s expert, Dr. Rudin, testified under oath
during his deposition for this hearing that Claimant remains out of work for
conditions unrelated to the industrial accident.”192 Additionally, Employer states
that its expert, Dr. Piccioni, “also pointed out that Dr. Rudin’s decision to keep
189
Employer’s Reply.
190
Id. at 6, quoting the Board’s Opinion.
191
Id.
192
Id. at 5.
36
Claimant out of work has nothing to do with the industrial accident for which this
Employer is responsible.”193
Moreover, Employer maintains that the Board erred as a matter of law when
it decided that Claimant did not voluntarily retire. Employer contends that Delaware
law excludes a claimant from receiving wage replacement benefits if that claimant
voluntarily withdrew from the labor market “for reasons unrelated to the work
accident.”194
Employer asserts that the Board is required to consider three factors when
determining whether a claimant voluntarily withdrew from the labor market: “(1)
claimant’s efforts at finding other employment; (2) the claimant’s age; and (3)
whether a claimant has another source of income” (Employer cites to a prior Board
decision as the source for these factors).195 Defendant states that the Board did not
apply these factors and that the factors, when applied, favor Employer’s position.
Employer argues that Claimant made no effort to find a job within his work
restrictions; Claimant is 65 years of age, which is older than the average retirement
age in the United States; and that Claimant has another source of income (social
security benefits).
193
Id.
194
Id. at 8.
195
Id. at 9, citing Archangelo v. State, No. 1389452, at 4 (Del. I.A.B. 2016).
37
Moreover, Employer contends that Claimant has chosen a “retirement
lifestyle.”196 Employer writes that “Claimant is collecting social security and
chooses to spend most of his days on his couch watching television.”197 Employer
also writes:
Receiving your main source of income from social security and
choosing to spend your days lounging around the house suggest that
Claimant has chosen a “retirement lifestyle” and does not wish to return
to work.198
Standard of Review
This Court’s review of the Board’s decision is “limited to examining the
record for errors of law and determining whether substantial evidence supports the
Board’s factual findings.”199 Questions of law are reviewed de novo. Substantial
evidence means “relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”200 Substantial evidence “requires less than a
preponderance of the evidence, but more than a mere scintilla.” 201 This Court is
196
Id. at 11.
197
Id.
198
Id.
199
Blair v. Smyrna School District, 2019 WL 1530127, at *3 (Del. Super. Apr. 5, 2019).
200
Id.201
Gregg v. State, 2016 WL 4530614, at *4 (Del. Super. Aug. 29, 2016) (internal quotation marks
removed).
38
precluded from weighing the evidence, determining questions of credibility, or
making its own factual findings,202 and it “must consider the record in a light most
favorable to the party prevailing below.”203 The Court will affirm the Board’s
decision if it is supported by substantial evidence and is free from legal error “even
if the Court might have, in the first instance, reached the opposite conclusion.”204
Discussion
Employer makes several meritless arguments to support its position that the
Board’s decision should be reversed. Employer contends that the Board disregarded
competent evidence and was motivated by hostility against Employer’s position; the
Board abused its discretion by relying on Claimant’s experts over its own experts;
and that the Board’s decision that Claimant is totally disabled was not supported by
substantial evidence.
Employer also asserts that Claimant is not eligible for disability benefits
because he voluntarily removed himself from the workforce; the Board did not apply
the correct standard when determining whether Claimant voluntarily withdrew from
the labor market; and that Claimant did not show that he conducted a reasonable job
search.
202
Stevens v. State, 802 A.2d 939, 944 (Del. Super. May 23, 2002).
203
Weitzel v. State, 2016 WL 4249766, at *5 (Del. Super. Aug. 9, 2016).
204
Id.39
Employer further contends that the Board arbitrarily and capriciously relied
on testimony about mental impressions to determine that Claimant wants to retire
due to the work injuries; the Board erroneously considered Claimant’s comorbidities
when determining that Claimant was totally disabled; and that Claimant’s expert
disabled Claimant for conditions unrelated to the work accident.
For the following reasons, the Court finds no merit in any of Employer’s
contentions and affirms the Board’s decision.
The Court finds no merit in Employer’s argument that the Board “showed a
capricious disregard for competent evidence in the record and failed to provide the
proper analysis based on that record out of hostility toward Employer’s position
overall.”205 Although Employer accuses the Board of hostility, Employer does not
provide any examples, and the record does not reflect that the Board was hostile
towards Employer or Employer’s position.
In addition, the Broad’s decision (that Claimant was totally disabled) was
based on competent evidence in the record – the testimony of Dr. Rudin. “[I]t was
the proper function of the [B]oard to resolve any conflicts in the factual evidence
presented to it.”206 It is also settled law that the Board may accept the opinion
205
Employer’s Opening Brief, at 35.
206
Hellstern v. Culinary Services Group, 2019 WL 460309, at *11 (Del. Super. Jan. 31, 2019)
(internal quotation marks removed).
40
testimony of one expert over another.207 Here, the Board was required to resolve the
conflict in testimony between the medical experts and it was resolved by accepting
the testimony of Dr. Rudin over the conflicting testimony of Dr. Piccioni.
Additionally, the Board provided its reasoning, explaining that Dr. Rudin has treated
the patient more extensively and is more familiar with the patient’s condition.
Furthermore, the Delaware Supreme Court has held that “[t]he [Board] is free
to adopt the opinion testimony of one expert over another, and that opinion, if
adopted, will constitute substantial evidence for purposes of appellate review.”208
Therefore, in adopting Dr. Rudin’s opinion testimony, the Board’s decision was
supported by substantial evidence for the purposes of this review.209
In addition, the Board found that Claimant’s testimony describing his pain and
condition supported its decision. The law is clear that “[i]t is within the exclusive
207
Bolden v. Kraft Foods, 2005 WL 3526324, at *4 (Del. Dec. 21, 2005). See also Steppi v. Conti
Electric, Inc., 2010 WL 718012, at *3 (Del. Mar. 16, 2010) (“It is well-settled law that the Board
may accept the opinion testimony of one expert while summarily disregarding the opinion
testimony of another expert.”).
208
Reese v. Home Budget Center, 619 A.2d 907, 910 (Del. Dec. 23, 1992) (“The Board, of course,
was free to choose between the conflicting diagnoses of [one physician and another physician] and
either opinion would constitute substantial evidence for purposes of appeal.”); DiSabatino Bros.,
Inc. v. Wortman, 453 A.2d 102, 106 (Del. Nov. 26, 1982) (holding that where “the evidence [is]
definitely in conflict and, the substantial evidence requirement being satisfied either way, the
Board [is] free to accept the testimony of [one medical expert] over contrary opinion testimony.”).
209
Hellstern v. Culinary Services Group, 2019 WL 460309, at *11 (Del. Super. Jan. 31, 2019)
(“When the Board adopts one expert’s opinion and testimony over the other, the Board is not
required to support its decision on more than the expert’s testimony and opinion that is supported
by other medical testimony and by the Board’s evaluation of the claimant’s credibility”).
41
purview of the Board to determine and weigh the credibility of witnesses and the
Court will not disturb these findings.”210 Moreover, this Court is required to give
“considerable deference” to the Board’s decision and will reverse it “only when there
is no satisfactory proof in support of a factual finding of the Board.”211
The Court also does not find merit in Employer’s contentions that Claimant
voluntarily withdrew from the workforce when he said that he wants to retire. The
Delaware Supreme Court has explained that “if… an employee’s retirement decision
was motivated by a work-related injury that affected that employee’s ability to find
a comparable job, that injury has diminished the employee’s earning power and
thereby entitles the employee to worker’s compensation benefits.”212
Here, the Board found that Claimant’s statement that he wants to retire was
related to his work injury, which the Board found rendered him totally disabled. The
Board’s finding is supported by the record. Claimant testified that he did not want
to work because he “cannot work.”213 When questioned whether he wants to retire,
Claimant said “yes,” and then he explained that he is not interested in working
210
Anderson v. General Motors Corp., 2002 WL 233747, at *1 (Del. Super. Jan. 29, 2002).
211
Christiana Care Health Services v. Davis, 127 A.3d 391, 394-95 (Del. Nov. 3, 2015) (emphasis
in the original).
212
Estate of Jackson v. Genesis Health Ventures, 23 A.3d 1287, 1290 (Del. 2011).
213
Broad Hearing Transcript, at 17.
42
because “[he] can’t work at all.”214 Dr. Rudin made clear that Claimant cannot work
due to the neck, spine, and shoulder injuries, and the medications treating the
resulting pain, which are undisputedly related to the work accident.215 This Court is
precluded from making its own factual finding and weighing of evidence. The
Board’s fact finding on this issue must stand.216
Also, the Court finds no merit in Employer’s argument that the Board was
required to consider the “(1) claimant’s efforts at finding other employment; (2) the
claimant’s age; and (3) whether a claimant has another source of income.” 217 The
only source that Employer provides for this standard is an unpublished Industrial
Accident Board decision. In contrast to Employer’s assertion, this Court finds that
the Board properly followed case law by recognizing that a claimant, who has
retired, is entitled to benefits if that claimant demonstrates that the decision to retire
was motived by a work-related injury.218
So too, Employer’s argument that Claimant did not conduct a reasonable job
search is meritless. The Board found that “Claimant did apply for jobs identified on
214
Id.215
Dr. Rudin’s Deposition, at 35.
216
Stevens v. State, 802 A.2d 939, 944 (Del. Super. May 23, 2002).
217
Archangelo v. State, No. 1389452, at 4 (Del. I.A.B. 2016).
218
Mladenovich v. Chrysler Group, L.L.C., 2011 WL 379196, at *4 (Del. Super. Jan. 31, 2011).
43
the labor market survey but has not heard back for any of the employers.”219 In fact,
the Board found that Claimant “made phone calls to follow up on the jobs but has
never heard back.”220
Moreover, Claimant was only required to show that he made a reasonable job
search effort if Employer first met its burden of demonstrating that Claimant is no
longer incapacitated due to the work injury.221 Here, the Board held that “Employer
has failed to meet its burden to prove that Claimant is physically capable of working
in some capacity.”222
Similarly, Employer’s argument that the Board arbitrarily and capriciously
relied on Mr. Castro’s mental impressions in relation to Claimant’s retirement
statement also fails. As explained above, the Board found that Claimant’s statement
that he wanted to retire was motivated by his work injuries, and Claimant’s own
testimony that he wants to retire because he cannot work supports this conclusion.
219
Id. at 3.
220
Id.
221
Williams v. State, 2009 WL 1638615, at *2 (Del. Super. Ct. May 28, 2009) (“In order to prevail
on a petition to terminate benefits, the employer must demonstrate that the claimant is no longer
totally incapacitated due to the work-related injury. If the employer is able to make such a showing,
the burden shifts to the claimant to demonstrate that he or she is a displaced worker. This requires
the claimant to show that, after a reasonable job search, the claimant was unable to find work due
to his or her injuries. If the claimant successfully proves this, the burden returns to the employer
to show that jobs exist within the claimant's physical limitations.”).
222
Id. at 21.
44
Additionally, there is support in the record that Mr. Castro’s testimony is
based on his personal knowledge, and not merely on mental impressions. Mr. Castro
testified that he met Claimant twice and spoke with him once more. Mr. Castro
testified that Claimant said that he (Claimant) should retire “only because he’s not
physically capable of doing stuff anymore.”223 To the extent that Employer suggests
that the Board is not allowed to rely on such evidence, this Court has held that the
Board “is not strictly bound by the technical rules of evidence” and that “[t]he
evidentiary rules applicable to a hearing before the Board are significantly more
relaxed that those that apply” to this Court.224 Indeed, “[a]ll evidence which could
conceivably throw light on the controversy should be heard.”225
Moreover, Employer’s argument that the Board erroneously considered
Claimant’s comorbidities when determining that Claimant was totally disabled is
misleading. The Board’s statement that it “recognizes that Claimant has co-
morbidities that could affect his ability to work and should therefore be considered
in the Board’s analysis” clearly did not mean that the Board found Claimant to be
totally disabled, in part, on the basis of his cancer, as Employer seems to be
223
Id.
224
Smith v. R.A.M. Construction Company, 2010 WL 3946283, at *3 (Del. Super. Sept. 29, 2010)
(“[T]he evidentiary rules regarding hearsay are relaxed before administrative agencies.”).
225
Id.45
suggesting. Instead, the Board necessarily considered whether Claimant’s non-work
accident comorbidities played a role in preventing him from working (because
Claimant would not have been entitled to disability benefits if it was his cancer that
prevented him from working). After necessarily considering the comorbidities, the
Board properly found that “[t]here is no medical testimony asserting that Claimant
is totally disabled from work because of these non-work-related conditions.”226
So too, contrary to Employer’s argument, the Board found, and the record
supports, that Dr. Rudin disabled Claimant based on Claimant’s work-related
injuries and not based on his throat cancer and prostate cancer. Dr. Rudin testified
that Claimant was disabled due to the work-related injuries (and the surgeries and
medications related to those injuries) and that Claimant’s cancer did not prevent him
from working.227
Furthermore, the Board found that Claimant’s medications, along with his
pain and the impact of his surgeries, have prevented Claimant from working.228 The
Board noted that the evidence shows that Claimant takes “a large amount of opioid
226
The Board’s Opinion, at 21.
227
Employer’s counsel asked Dr. Rudin the following question: “Doctor, if we took out the cancer
diagnosis that you talked about, would you believe he would be able to work?” Dr. Rudin’s
Deposition, at 35. Dr. Rudin replied: “No, I don’t think the cancer is what makes him bad; I think
it’s the surgeries, his spine injuries, and the medications that he’s on.” Id. Dr. Rudin also explained
that “the medications he’s taking aren’t for cancer.” Id.228
Id at 21.
46
pain medication and other medications related to his work injures” and that Dr.
Rudin testified that Claimant’s total disability is attributable to his severe pain level
and medications.229 The Board also accepted Mr. Castro’s testimony that Claimant’s
large doses of pain medications would make it impractical for Claimant to work.230
Moreover, the Board made findings of fact that would refute Employer’s
claim that Claimant is lounging around his house and enjoying a retirement lifestyle.
The Board found that Claimant is a “chronic pain patient” who continues to have
“high levels of daily pain in his neck, back, and shoulder as well as radicular pain to
the left leg.”231 In fact, Dr. Rudin testified that Claimant’s pain level measures eight
out of ten on a consistent basis. The Board also found that Claimant’s “pain levels
increase as his activity increases” and that he is, therefore, limited to engaging in
minimal activities around the house.232
229
Id. at 19.
230
Id. at 20. Mr. Castro testified that Claimant’s medications would affect his performance at
work because it could make him drowsy. The Board Hearing transcript, at 90.
231
Id. at 19-20.
232
Id.
47
Conclusion
Accordingly, for the foregoing reasons, the Board’s decision is AFFIRMED.
IT IS SO ORDERED.
/s/ Diane Clarke Streett______
Diane Clarke Streett, Judge
48