CARPENTER, J.Page 2
Introduction
Before this Court is Robert Pekala's ("Appellant") appeal from the Industrial Accident Board's ("Board") decision regarding Mr. Pekala's Petition to Determine Additional Compensation Due against E.I. DuPont de Nemours Co. ("DuPont" or "Appellee"). Upon review of briefs filed in this matter, this Court finds the Board's decision should be AFFIRMED.
Facts
Mr. Pekala developed a hypersensitivity to mold when he was exposed to mold during his twenty-seven year employment with DuPont. As a result, Mr. Pekala submitted a worker's compensation claim, and DuPont paid Mr. Pekala's medical expenses beginning in the early nineties. Upon each additional mold exposure, Mr. Pekala exhibited certain symptoms which would result in additional medical treatment at DuPont's cost. But, in June 2001, Mr. Pekala's employment with DuPont was terminated, and six months later DuPont determined Mr. Pekala was not entitled to further medical payments since his hypersensitivity to mold was no longer being triggered by his employment at DuPont.
In May 2006 a jury trial commenced regarding Mr. Pekala's claim of wrongful termination against DuPont. The jury found in favor of DuPont. See Pekala v. E.I. DuPont de Nemours and Co., C.A. No. 03C-04-175-WCC.
Unfortunately, Mr. Pekala continued to experience medical conditions when exposed to mold, and he continued to be treated by physicians. As a result, Mr. Pekala filed a Petition to Determine Additional Compensation Due (the "Petition"). Specifically, Mr. Pekala requested the Board award damages for permanent respiratory system impairment and to order DuPont to reimburse him for medical expenses, attorney's fees and travel expenses. A hearing on the Petition was held before the Board, and the Board issued a decision which 1) granted, in part, Mr. Pekala's request for medical expenses; 2) denied Mr. Pekala's request for additional permanent impairment benefits and 3) granted Mr. Pekala's request for reasonable attorney's fees and witness fees ("Board Decision").
Pekala v. E.I. DuPont DeNemours Co., IAB Hearing No. 122810 (April 7, 2006).
Thereafter, Mr. Pekala appealed the Board Decision, indicating the Board erred both factually and legally with respect to its finding that Mr. Pekala has not suffered permanent injury. Both parties have filed briefs in this matter, and upon review of the record, this is the Court's decision.
Mr. Pekala has not appealed the Board Decision with respect to the medical benefits, attorney's fees or reasonable witness fees.
Standard of Review
The Superior Court has "limited appellate review of the factual findings of an administrative agency." This Court only reviews an agency opinion to determine whether the board's decision is supported by evidence that a reasonable mind accepts as adequate support for a conclusion ( i.e. substantial evidence) and that the board's decision is free from legal error. This Court will not weigh evidence, determine questions of credibility or create its own findings of fact. Thus, when reviewing the evidence and testimony from the agency record, the Court must consider the record in a light most favorable to the prevailing party, and this Court will resolve any doubts in that party's favor. If the record reflects substantial evidence to support the board's findings, the Court should accept those findings even if the Court might reach a different conclusion if it acted independently.
Johnson v. E.I. DuPont de Nemours Co., 2000 WL 33115808 (Del.Super.Ct.).
General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965); Johnson, 2000 WL 33115808 (Substantial evidence may be characterized as evidence that a reasonable mind accepts as adequate support for the conclusion.)
Johnson, 213 A.2d at 66-67.
General Motors Corp. v. Guy, 1991 WL 190491, at *3 (Del.Super.Ct.).
H H Poultry Co., Inc. v. Whaley, 408 A.2d 289, 291 (Del. 1979).
Discussion
The sole question before this Court is whether the Board Decision, which determined Mr. Pekal a did n ot su ffer p ermane nt imp airmen t of hi s resp irato ry syst em, was supported by substantial evidence. Mr. Pekala argues that the Board 1) misinterpreted the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th] Edition (the "AMA Guides") by requiring Mr. Pekala to provide supporting objective documentation; 2) that the Board erred in disregarding the testimony indicating how his daily life activities are affected by his mold sensitivity and 3) that the Board acted arbitrarily and capriciously by allowing medical expense reimbursement, but not finding Mr. Pekala was permanently injured.
It is the Board's duty to determine what permanency rating is appropriate for Mr. Pekala's pulmonary impairment. So long as the Board articulates a factual basis for its rating, the decision will stand. It is also the Board's duty to reconcile the contradictory findings of multiple doctors and decide which doctor is more convincing. Again, so long as the Board provides "specific, relevant reasons for doing so," its decision will not be disturbed. Upon review of the record, this Court finds the Board Decision, in accordance with 19 Del. C. § 2345, clearly reviews the evidence presented to the Board, appropriately explains which doctor's opinion it favored, and most importantly, sets forth how it reached its final conclusion.
Turbitt v. Blue Hen Lines, Inc., 711 A.2d 1214, 1215 (Del. 1998) (citations omitted). ("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 . . . The Board may set a permanency rating different from that established by a physician, provided that the Board articulates a factual basis for doing so."); see also Johnson, 2000 WL 33115808.
Turbitt, 711 A.2d at 1215 (citations omitted). ("Although the Board is entitled to discount the testimony of a witness, even a medical witness, on the basis of credibility, it must provide specific, relevant reasons for doing so."); see also Johnson, 2000 WL 33115808.
A. Permanency Rating via Pulmonary Function Testing
Three doctors testified before the Board regarding Mr. Pekala. With respect to the permanency rating of Mr. Pekala, the Board found Dr. Greenberg's testimony most convincing and supported by the evidence. Dr. Greenberg testified that Mr. Pekala does not have a permanent impairment, basing his opinion on his meeting with Mr. Pekala in 2004, laboratory results, studies conducted, pulmonary function test (PFT) results and the AMA Guides which provide the criteria for diagnosis of respiratory disorders through PFT results. He further testified that Mr. Pekala's PFT results were normal when taken in August 2002, January 2003 and April 2005, and both Dr. Seltzer and Dr. Johanning agreed. Lastly, in May 2004, Dr. Greenberg met with Mr. Pekala who appeared healthy and normal.
Drs. Seltzer and Johanning testified on behalf of Mr. Pekala, and Dr. Greenberg testified on behalf of DuPont.
Mr. Ralston: . . . Based upon your evaluation, your record review, your understanding of the test that we've discussed do you have an opinion as to whether or not Mr. Pekala suffers from any permanent impairment based upon the agreed upon exposure that took place at DuPont.
Dr. Greenberg: I do.
Mr. Ralston: What is your opinion please?
Dr. Greenberg: That there is no decrement in function which is what defines impairment, and there is a formal way to determine impairment that wasn't done and it probably is not necessary to be done because the pulmonary function tests that were done are essentially normal so there is no impairment to evaluate.
Mr. Ralston: Doctor, when you talk about a way to evaluate permanent impairment to the respiratory system, are you talking about the 5
th] addition of the AMA guides?
Dr. Greenberg: The AMA guides are the standard that most people use to determine decrement and function and impairment.
Tr. Greenberg, IAB Hearing No. 1228010, at 39.
Id. at 26-29, 39.
Id. at Claimants Ex. 7, 8.
Id. at 18 ("Well I relied on the results of laboratory testing that had been done. The fact that the gentleman was offering no complaints, looked well, was alert and oriented and no distress, I didn't feel that was necessary for me to put him through a physical exam, chances of finding something are practically nil. He appeared to be a healthy person with no complaints.")
Supporting Dr. Greenberg's testimony regarding the PFT results, Dr. Seltzer testified that Mr. Pekala's PFT results remained normal, and at some points even "high normal." Dr. Seltzer further stated that his testing of Mr. Pekala's mold allergy created a negative result, and that Mr. Pekala is "one of the healthiest people that I come in contact with. . ." In fact, Dr. Seltzer indicated that Mr. Pekala had less symptoms as time went on, and except for an incident in 2004, "he seems perfectly well."
Tr. Greenberg, IAB Hearing No. 1228010, at Claimant Ex. 8, 51, 66.
Tr. Seltzer, IAB Hearing No. 1228010, at 171.
Id. at Claimant Ex. 8, 66.
Id. at 52.
Contrarily, Dr. Johanning testified that, in his opinion, Mr. Pekala suffered a 20% permanent respiratory impairment, despite admitting that Mr. Pekala's PFT results were normal. But, unlike Dr. Greenberg, Dr. Johanning only supported his opinion by Mr. Pekala's performance on the Methacholine Challenge Test and Mr. Pekala's subjective complaints. Dr. Johanning testified that Mr. Pekala complained that he suffers temporary symptoms such as headaches, fatigue, nasal congestion, coughing, sneezing, muscle aches and/or chest tightness, respiratory problems, loss of voice and flu-like symptoms, which Mr. Pekala reiterated when he testified. But by definition, these are Mr. Pekala's subjective complaints. Dr. Johanning then discussed Mr. Pekala's Methacholine Challenge Test results which he stated correlates with Mr. Pekala's mold exposure and respiratory complaints, providing Dr. Johanning the sole objective documentation of Mr. Pekala's ailment. From there, Dr. Johanning concluded that Mr. Pekala suffers from a 20% permanent impairment of his respi rator y syste m. Based on the testimony, the Board concluded:
Tr. Johanning, IAB Hearing No. 1228010, at Ex. 7, 8-9.
The Methacholine Challenge Test is not listed in Table 5-12 of the AMA Guides as a test for pulmonary function. Dr. Greenberg testified that the Methacholine Challenge Test must be interpreted as a whole, is nonspecific, and cannot give a diagnosis. Dr. Greenberg also testified that Mr. Pekala's Methacholine Challenge Test done in April 2005 produced a negative result. Tr. Greenberg, IAB Hearing No. 1228010, at 26-27, 71.
Tr. Johanning, IAB Hearing No. 1228010, at Ex. 8, 5.
Pursuant to The American Heritage Dictionary (2nd Edition), "subjective" as it relates to the medical field, is defined as "Designating a symptom or condition perceived by the patient and not by the examiner."
Tr. Johanning, IAB Hearing No. 122810, at Ex. 8, 13-15.
Pursuant to The American Heritage Dictionary (2nd Edition), "objective" as it relates to a medical assessment, is defined as "Indicating a symptom or condition perceived as a sign of disease by someone other than the person afflicted."
"In my summary report on January 8th, 2003, and on February 24th, 2004, based on the testing and all the results and the review of all the records, I feel that he has a hypersensitivity and allergy to mold; and now with the breathing test, we have objective evidence that he has asthma-like reaction to mold, asthma essentially, based on the methacholine challenge test." Tr. Johanning, IAB Hearing No. 1228010, at Ex. 8, 19.
[B]ased on the concurring medical testimony of Dr. Greenberg, Dr. Johanning and Dr. Seltzer that Claimant's respiratory test results, at least those set forth in table 5-12 of the AMA Guides, have consistently been within normal limits, the Board concludes that Claimant's pulmonary test results provide no evidence of permanent impairment to Claimant's respiratory system.
As previously indicated, the Board must assess conflicting expert testimony and is "free to choose one expert's testimony over that of another" in making the final determination of a permanency rating. Here, the Board determined Dr. Greenberg was more convincing than Dr. Johanning. Dr. Greenberg's findings were supported by the numerous normal PFT results that Mr. Pekala had, while Dr. Johanning's testimony was supported only by Mr. Pekala's complaints and the Methacholine Challenge Test that Dr. Greenberg discounted. As such, the Board's determination that Mr. Pekala had a 0% permanency rating is supported by the testimony and evidence presented to the Board, and this Court will not disturb its finding.
Johnson, 2000 WL 33115808 ("Where substantial evidence exists to support conflicting expert opinions, the Board is free to choose one expert's testimony over that of another. . . . The Board is free to accept part of a medical witness' testimony as credible while discrediting the remainder.")
B. Permanency Rating via the Effect of the Impairment on Daily Living
The Board then turned its attention to the effect of the impairment on daily living. The AMA Guides state that respiratory impairment may not be apparent through pulmonary testing, but may "impact the ability to perform activities of daily living. . . ." These cases are limited, and the AMA Guides state that in such cases a "physician may assign an impairment rating based on the extent and severity of pulmonary dysfunction and the inability to perform activities of daily living." However, "[a] detailed description with supporting, objective documentation of the type of pulmonary impairment and its impact on the ability to perform activities of daily living is required." Thus, the Board reviewed whether Mr. Pekala established that daily living activities were affected and whether objective documentation supported Mr. Pekala's claims. The Board concluded that Mr. Pekala's case was not one of the "limited" cases within the AMA Guides since Mr. Pekala provided insufficient objective documentation and failed to provide a detailed description of the effects of his impairment on his daily living.
Tr. IAB Hearing No. 1228010, at Claimant Ex. 6.
Id. (Activities of Daily Living have been defined as follows: self-care and personal hygiene, communication, physical activity, sensory function, nonspecialized hand activities, travel, sexual function and sleep.)
Id.
First, the only objective documentation provided to the Board to indicate Mr. Pekala suffered a permanent impairment to his pulmonary system was the Methacholine Challenge Test offered by Dr. Johanning. However, Dr. Johanning's testimony with respect to that test was not uncontroverted. Dr. Greenberg testified that the Methacholine Challenge Test cannot provide a diagnosis and must be interpreted as a whole, countermining Dr. Johanning's objective documentation of Mr. Pekala's permanency. Further, each of the three doctors concluded that Mr. Pekala's numerous pulmonary function tests provided normal results, again contradicting the Methacholine Challenge Test results that Dr. Johanning so heavily relied upon. And, as indicated above, the Board concluded Dr. Greenberg's testimony was more convincing.
Tr. Greenberg, IAB Hearing No. 1228010, at 71.
Second, each doctor seemed to agree that Mr. Pekala has a mold sensit ivity, but the degree of the effect on Mr. Pekala's daily living is not clear. For instance, Dr. Seltzer testified that Mr. Pekala will remain hypersensitive to mold for the rest of his life "to some degree," but he failed to articulate any detailed description of the effect his pulmonary impairment would have on Mr. Pekala's ability to perform activities of daily living. Further, Dr. Johanning testified that "overall, subjectively," Mr. Pekala was better in 2005 than he was in 2002, though admitting that Mr. Pekala still sometimes suffers certain hypersensitivity reactions. But again, Dr. Johanning did not articulate the detailed effects on Mr. Pekala's daily living, a requirement pursuant to the AMA Guides. Finally, while Mr. Pekala stated at times he must sleep off his symptoms, he also indicated that as a result of the mold sensitivity, he has not missed a day of work at his current employer. Again, this provides the Board support for its conclusion that Mr. Pekala is not permanently impaired, as it is unclear how Mr. Pekala's daily living, as defined by the AMA Guides, is affected.
Tr. IAB Hearing No. 1228010, at Claimant Ex. 8.
Id. at 35.
Tr. Pekala, IAB Hearing No. 1228010, at 113.
As indicated above, the Board must determine which testimony is more convincing, and provided the Board's decision is supported by substantial evidence, the Board's decision will be upheld. Here, the Board determined that, pursuant to the AMA Guides, objective supporting documentation is required if the PFT results are normal, as they were here. Dr. Johanning's only objective supporting documentation of the permanency of Mr. Pekala's condition was the Methacholine Challenge Test, which Dr. Greenberg found unhelpful. Without the Methacholine Challenge Test providing objective documentation, the Board determined Mr. Pekala's subjective complaints alone were not sufficient to allow a permanency rating pursuant to the AMA Guides.
Wykpisz v. Steel, 2001 WL 755376 (Del.Super.Ct.) (The Court upheld the Board's findings that the appellant did not sustain 3% impairment on his shoulder since both doctors based their 3% rating on subjective unreliable complaints.)
Based on the above, the Court finds that there is substantial evidence to support the Board's conclusions. The Board, as the fact-finder, determined Dr. Greenberg's conclusions to be more credible than Dr. Seltzer or Dr. Johanning. While the Court is sympathetic to Mr. Pekala's situation, the Board Opinion was well-reasoned and factually supported, and reversal is not warranted.
Conclusion
For the foregoing reasons, the decision of the Board is AFFIRMED. IT IS SO ORDERED. Judge William C. Carpenter, Jr.