MacFadyen v. Total Care Physicians.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
MARY ANNE MACFADYEN, )
)
Claimant-Below, Appellant, )
)
v. ) C.A. No. N15A-05-001 ALR
)
TOTAL CARE PHYSICIANS, )
)
Employer-Below, Appellee. )
Submitted: November 2, 2015
Decided: December 15, 2015
On Appeal from Decision of the
Industrial Accident Board
AFFIRMED
MEMORANDUM OPINION
Michael R. Ippoliti, Esq., Law Office of Michael R. Ippoliti, Attorney for
Claimant-Below Appellant
Aman K. Sharma, Esq., Law Offices of Chrissinger & Baumberger, Attorney for
Employer-Below Appellee
ROCANELLI, J.
Mary Anne MacFadyen (“Claimant”) was employed as an administrative
assistant with Total Care Physicians (“Employer”) for approximately ten (10)
years. Claimant was injured at work in September 2011 and, therefore, was
entitled to compensation.
On May 8, 2014, Claimant filed two Petitions to Determine Additional
Compensation Due. In Claimant’s first petition, Claimant sought a finding that she
had complex regional pain syndrome (“CRPS”) of the upper left extremity and a
finding of recurrence of temporary total disability (“TTD”). In Claimant’s second
petition, Claimant sought a finding that she sustained a twenty-four percent (24%)
permanent impairment to the upper left extremity.
A hearing on the merits on both petitions was held before the Industrial
Accident Board (“Board”) on March 19, 2015. The Board issued a decision on
April 2, 2015 (“Board’s Decision”) determining that Claimant met her burden in
establishing that she had CRPS of her upper left extremity and recurrence of TTD.
However, the Board determined that Claimant failed to meet her burden that she
sustained a twenty-four percent (24%) permanent impairment to her upper left
extremity and instead awarded Claimant a four percent (4%) permanent
impairment.
Claimant filed a limited appeal to this Court of the Board’s Decision
awarding Claimant four percent (4%) permanency rather than the twenty-four
2
percent (24%) permanency requested by Claimant. Claimant also appeals the
Board’s decision to permit Employer to utilize photographs taken from Claimant’s
public Facebook profile as impeachment evidence without prior notice to
Claimant. For the reasons set forth below, the Board’s Decision is hereby
AFFIRMED.
Summary of the Board’s Decision
Claimant was employed as an administrative assistant for Employer for
approximately ten (10) years, including in 2011 when Claimant suffered an injury
at work to her left upper extremity. In September 2011, Dr. Robert Palandjian,
Claimant’s general physician, diagnosed Claimant with carpal tunnel syndrome
(“CTS”) and soon thereafter, Dr. Douglas Patterson, an orthopedic specialist, also
diagnosed Claimant with CTS, cubital tunnel syndrome, and de Quervains
tenosynovitis. In October 2011, Dr. Patterson additionally diagnosed Claimant
with ulnar side wrist pain. Claimant received injections to address her pain.
Nevertheless, Claimant continued to experience pain.
In March 2012, Claimant underwent four surgical procedures involving
Claimant’s left elbow, left wrist, and left ring finger. Following the procedures,
Claimant’s condition briefly improved and Claimant returned to work in May 2012
for Employer in light duty status. On April 7, 2013, Dr. Peter Bandera, Claimant’s
3
pain management physician, placed Claimant on “no-work” status because
Claimant’s symptoms worsened related to a CRPS condition and residual CTS.
Following the March 19, 2015 hearing, the Board found in its Board
Decision that Claimant’s injuries were compensable and Claimant’s CRPS
condition and residual CTS were causally related to Claimant’s original
compensable injuries. The Board further found that Claimant suffered a
compensable recurrence of TTD effective April 7, 2013. Specifically, the Board
found that Claimant suffered a four percent (4%) permanent impairment to her left
upper extremity. In making its decision, the Board considered the testimony of
Claimant, and the depositions of two medical experts who each physically
examined Claimant and reviewed Claimant’s medical records for purposes of
rendering an opinion on permanent impairment: (1) Claimant’s expert, Dr. Jeffrey
Meyers, a physician board certified in physical medicine and rehabilitation and (2)
Employer’s expert, Dr. Wayne Kerness, a board certified orthopedic surgeon.1
Standard of Review
The Court’s appellate review of a Board decision is limited. The Court’s
only role is to “determine whether the decision of the Board is supported by
1
Although the Board considered testimony from Claimant’s other physicians for purposes of
causation, the Board relied only on the opinions of Dr. Meyers and Dr. Kerness with respect to
Claimant’s permanency claim.
4
substantial evidence and free of legal error.” 2 Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” 3 If substantial evidence in support of the Board’s decision exists,
then the Board’s decision stands,4 even if the Court would reach a contrary
conclusion.5 In making its determination, the Court reviews the record below in the
light most favorable to the prevailing party, here Employer. 6 The Court will not
weigh the evidence, determine credibility, or make its own factual findings. 7 The
Court defers to the specialized competence and experience of the Board. 8 Absent
legal error, which is reviewed de novo, 9 the standard of review is abuse of
discretion. 10 A Board’s discretionary ruling will not be disturbed on appeal unless
it is based on “clearly unreasonable or capricious grounds.” 11 “The Board has
abused its discretion only when its decision has exceeded the bounds of reason in
view of the circumstances” so as to produce injustice. 12
2
Standard Distrib., Inc. v. Hall, 897 A.2d 155, 157 (Del. 2006); see also Person-Gaines v.
Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009).
3
Id. (citing Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Federal Mar.
Comm’n, 383 U.S. 607, 620 (1966)).
4
Person-Gaines, 981 A.2d at 1161.
5
H&H Poultry v. Whaley, 408 A.2d 289, 291 (Del. Super. 1979).
6
Bermudez v. PTFE Compounds, Inc., 2006 WL 2382793, at *3 (Del. Super. Aug. 16, 2006).
7
Person-Gaines, 981 A.2d at 1161; Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
8
Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993).
9
Person-Gaines, 981 A.2d at 1161.
10
Id.11
K-Mart, Inc. v. Bowles, 1995 WL 269872, at *2 (Del. Super. Mar. 23, 1995).
12
Person-Gaines, 981 A.2d at 1161 (internal quotation omitted); see also K-Mart, Inc., 1995 WL
269872, at *2.
5
Discussion
This Court must decide whether there is substantial evidence in the record to
support the Board’s Decision to award Claimant four percent (4%) permanency.
This Court must also determine if the Board properly permitted Employer to utilize
photographs taken from Claimant’s public Facebook as impeachment evidence
without prior notice to Claimant or whether admission of that evidence was an
abuse of the Board’s discretion.
A. The Board’s Decision to award Claimant four percent permanency is
supported by substantial evidence.
If medical evidence is in conflict, the Board, as fact finder, resolves the
conflict. 13 It is well-established that, when parties present competing experts, the
Board may rely on either expert’s opinion.14 Where the Board adopts one medical
opinion over another, the opinion adopted by the Board constitutes substantial
evidence for purposes of appellate review. 15 “It is the duty of the Board, not a
physician, to fix a percentage to a claimant’s disability based on the evidence
before it.”16
13
Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006).
14
Harasika v. State, 2013 WL 1411233, at *4 (Del. Super. Feb. 28, 2013) (referring to San Juan
v. Mountaire Farms, 2007 WL 2759490, at *4 (Del. Super. Sept. 18, 2007)).
15
Person-Gaines, 981 A.2d at 1161; Munyan, 909 A.2d at 136.
16
Turbitt v. Blue Hen Lines, Inc., 711 A.2d 1214, 1215 (Del. 1998).
6
The record reflects that the Board was not persuaded by Dr. Meyers, the
expert presented by Claimant. Rather, the Board accepted the expert testimony of
Dr. Kerness, who was presented by Employer. There was substantial evidence to
support the Board’s Decision. Specifically, Claimant’s expert, Dr. Meyers,
assigned a twenty-four percent (24%) rating to Claimant’s permanency
impairment; however, the Board found that the twenty-four percent (24%) rating
was too high in relation to Claimant’s actual functional limitations. Indeed, in its
Board Decision the Board provide that the “Board was concerned that Dr. Meyer’s
rating process seemed to focus more on the complexity of the 2012 surgical
procedures and the multiple areas involved, as opposed to a true focus on
Claimant’s actual loss of use following her post-operative recovery.” For example,
the Board noted that Dr. Meyers focused on certain symptoms of CRPS, such as
increased hair growth and shininess in the upper left extremity, rather than
explaining Claimant’s actual limitations with respect to permanent impairment.
The Board described as “perhaps most troubling” that Dr. Meyers testified in
the deposition that he placed Claimant in a Class II category for impairment and
provided that the Claimant “can use the involved extremity for self-care and can
grasp and hold objects with difficulty but has no digital dexterity.” However,
according to the Board, Dr. Meyers failed to adequately explain how he came to
such conclusions or otherwise make clear how often Claimant’s injured extremity
7
would be low or non-functioning compared to when Claimant would be highly
functioning.17
On the other hand, following his physical examination of Claimant,
Employer’s expert, Dr. Kerness, found there were no objective findings other than
Claimant’s surgical scarring. Claimant’s left shoulder had normal range of motion
in all planes as well as full flexibility of the left elbow and Claimant’s left wrist
showed full range of motion. Claimant exhibited no discomfort during Dr.
Kerness’s physical examination. Claimant also admitted to Dr. Kerness that she
was not having any difficulty performing her daily activities, including cleaning,
cooking, etc. Dr. Kerness concluded that Claimant could return to regular duty
work without any restrictions and in his opinion, Claimant’s rating for permanent
impairment was only a total of four percent (4%).18 Although the Board did not
find Dr. Kerness’s opinion “all that convincing either” as he provided little
explanation for his rating, the Board accepted that Claimant had suffered four
percent (4%) total impairment.
17
This is not to say that the Board did not find Dr. Meyers at all credible. Indeed, the Board
found Dr. Meyer’s opinion with respect to causation of Complainant’s condition persuasive.
18
Dr. Kerness specifically concluded that Claimant’s permanent impairment is a two percent
(2%) rating attributable to left cubital tunnel syndrome and another two percent (2%) attributable
to CTS.
8
Although the testimony of Dr. Meyers and Dr. Kerness was in conflict, the
Board, as fact finder, was in the best position to resolve the conflict. 19 The Board
had the authority to rely on either expert’s opinion. 20 It is not within this Court’s
purview to determine the credibility of the witnesses or make factual findings.21
Instead, it is well-established that if the Board adopts one medical opinion over
another, the opinion adopted by the Board constitutes substantial evidence for
appellate review. 22
Accordingly, there was substantial evidence for the Board’s Decision where,
with respect to Claimant’s permanency claim, the Board found Dr. Kerness’
medical opinion more credible than Dr. Meyer’s medical opinion considering Dr.
Meyer’s failure to explain his conclusions and where the burden was on Claimant
to demonstrate such permanency such that Claimant failed to meet her burden.
B. The Board did not abuse its discretion in permitting Employer to utilize
Claimant’s Facebook photographs as impeachment evidence.
Claimant argues that the Board erred in permitting Employer to use
Claimant’s public Facebook photographs of Claimant holding her grandson with
her injured arm and hand as impeachment evidence against Claimant where
Employer failed to comply with the notice requirement of Board Rule 9. Claimant
19
See Munyan, 909 A.2d at 136.
20
See Harasika, 2013 WL 1411233, at *4 (referring to San Juan, 2007 WL 2759490, at *4).
21
Person-Gaines, 981 A.2d at 1161; Johnson, 213 A.2d at 66.
22
Person-Gaines, 981 A.2d at 1161; Munyan, 909 A.2d at 136.
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argues that the admission of Claimant’s Facebook images was prejudicial to
Claimant and, therefore, the Board’s Decision must be reversed.
As a threshold matter, although Claimant states that Claimant’s Facebook
photographs were admitted into evidence, Claimant is incorrect. The record
reflects that, during the hearing, the Board considered Claimant’s objection, took a
recess to discuss the matter, and then determined that the photographs would not
be admitted into evidence and would only be utilized for impeachment purposes.
The Board reasoned that impeachment was appropriate because Claimant testified
that she cannot hold her grandchildren or even a teacup with her injured arm and
hand; however, the photographic evidence was to the contrary. In stating that the
photographs limited purpose was for impeachment, the Board noted that
accordingly, it would give the photographs lesser weight than if they were
introduced as substantive evidence.
Board Rule 9(B)(5)(f) requires pre-trial memorandum to contain “notice of
the intent to use any movie, video or still picture and either a copy of the same or
information as to where the same may be viewed.”23 Board Rule 14(C) gives the
Board broad discretion with respect to evidentiary decisions. Particularly, Rule
14(C) provides:
23
Industrial Accident Board Rule 9(B)(5)(f).
10
The rules of evidence applicable to the Superior Court of the State of
Delaware shall be followed insofar as practicable; however, that
evidence will be considered by the Board which, in its opinion,
possesses any probative value commonly accepted by reasonably
prudent persons in the conduct of their affairs. The Board may, in its
discretion, disregard any customary rules of evidence and legal
procedures so long as such a disregard does not amount to an abuse of
its discretion.24
While Board Rules are to be enforced by this Court, the Court recognizes an
exception to the strict enforcement of a Board Rule where “fairness so requires.”25
Moreover, this Court’s primary focus for review is on the Board’s legal reasoning
and the not the Board’s evidentiary rulings.26
Claimant relies on Harasika v. State for her argument that Employer was
required to give Claimant notice of its intent to use the photographs even for
impeachment purposes. 27 In Harasika, an employee suffered an injury to her left
ring finger at work.28 The employee filed a Petition for Additional Compensation
Due related to alleged ongoing injuries as a result of her work accident; however,
following a hearing, the Board determined that the employee did not meet her
burden in establishing that the injuries were a result of the original work accident.29
At the Board hearing, the employee sought to introduce photographs to impeach an
24
Industrial Accident Board Rule 14(C) (emphasis added).
25
K-Mart, Inc., 1995 WL 269872, at *2.
26
Walden v. Georgia-Pac. Corp., 1994 WL 534907, at *3 (Del. Super. Aug. 19, 1994).
27
2013 WL 1411233 at *1, *6-7.
28
Id. at *1.
29
Id. at *3.
11
expert physician’s testimony, which suggested that the employee “provided
inconsistent accounts of her mechanism of injury.” 30 At the hearing, the Board did
not permit the employee to use the photographs.31 On appeal, the Superior Court
affirmed the Board’s decision.32 The Superior Court noted that the employee failed
to provide proper notice to use the photographs for impeachment evidence and
held that the Board was “well within its authority in refusing to permit [the
employee’s] use of these photographs.” 33
While Claimant proposes that Harasika provides for a strict interpretation of
Board Rule 9 even with respect to impeachment, Claimant fails to consider that the
Court in Harasika did not disrupt the Board’s decision. Given this Court’s limited
role in Board decisions, particularly with respect to evidentiary considerations, this
Court also finds that the Board was well within its authority to permit Employer to
use Claimant’s Facebook photos as impeachment evidence in this context.
Particularly, the Board’s decision to permit Employer to use Claimant’s Facebook
34
photos as impeachment evidence was not “clearly unreasonable or capricious”
nor did it “exceeded the bounds of reason in view of the circumstances” or produce
30
Id.
31
Id.
32
Id. at *7.
33
Id. at *6.
34
K-Mart, Inc, 1995 WL 269872, at *2.
12
injustice. 35 Rather, in view of the circumstances, the Board was well within its
authority to permit Employer to use Claimant’s public Facebook photographs as
impeachment evidence because Claimant herself testified that she cannot hold her
grandchildren with her injured arm. Accordingly, fairness so required that
Employer could impeach Claimant, including with photographs of Claimant
holding her grandchildren with her injured arm.
Moreover, there was substantial evidence to support the Board’s Decision to
award Claimant four percent (4%) permanency independent of the Board’s
consideration of Claimant’s Facebook photographs as impeachment evidence as
discussed above. Therefore, the use of these photographs as impeachment
evidence did not produce injustice. According to the Board’s “Statement of
Determination,” the Board’s Decision with respect to permanency was based on
Dr. Kerness’ opinion. Dr. Kerness’ opinion did not consider Claimant’s Facebook
photographs.
35
Person-Gaines, 981 A.2d at 1161 (internal quotation omitted); see also K-Mart, Inc., 1995 WL
269872, at *2.
13
CONCLUSION
The Court has examined the record below and determined that substantial
evidence supports the Board’s Decision and the Board did not abuse its discretion.
Accordingly, the Board’s Decision must be and hereby is AFFIRMED.
IT IS SO ORDERED this 15th day of December, 2015.
Andrea L. Rocanelli
_____________________________
The Honorable Andrea L. Rocanelli
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