The Superior Court affirms the Board’s decision granting the termination petition and emphasizes that the employer need only show the claimant is capable of working and not that the injury has resolved.
This case came before the Superior Court on the claimant’s appeal from the Board’s decision granting the employer’s termination petition. The claimant was employed as a housekeeper and on February 22, 2018, she lifted a bag of trash out of the can to throw into a dumpster and in so doing experienced pain and pressure in her mid to low back. The claimant received medical treatment, which showed she had several disc bulges in the lumbar spine but no acute fractures. An open agreement for temporary total disability was issued.
The employer filed a termination petition that came before the Board for a hearing in July 2019. Dr. Kates was the medical expert for the employer and performed DMEs of the claimant on two occasions. At his first exam in June 2018, Dr. Kates indicated the claimant had sustained a lumbosacral sprain and strain in the work injury and had signs of symptom exaggeration. His opinion was that the claimant could work but with restrictions. The second DME with Dr. Kates took place on January 7, 2019, at which time he again concluded the claimant had a lumbosacral sprain and aggravation of her degenerative disc condition, but he found no objective evidence of any ongoing injury. Dr. Kates expressed the opinion that the claimant was capable of returning to work full time in a full-duty capacity. He also opined that the claimant reached maximum medical improvement by the date of the second DME and that no further treatment was necessary.
Dr. Eskander, the claimant’s medical expert, began treating her on April 3, 2018, and diagnosed her as having lumbar radiculopathy. His treatment involved diagnostic studies and injections into the lumbar spine. His final diagnosis was that the claimant had soft tissue and structural injuries, and he was of the opinion that the degenerative condition in the lumbar spine was made symptomatic from the work injury. Dr. Eskander testified that he did not believe the claimant was functional enough to return to work.
The Board’s decision accepted the testimony of Dr. Kates as more credible than that of Dr. Eskander. They also found the claimant to not meet the criteria to be a prima facie displaced worker. They concluded she was able to work in her usual capacity without restrictions as of January 7, 2019.
On appeal, the claimant argued that the Board erred since the testimony of Dr. Kates was contradictory and inconsistent. Specifically, the argument was made that Dr. Kates used the terms “maximum medical improvement” and “resolved” and that an injury can be only one or the other, not both. The court rejected that argument and found that the Board’s acceptance of Dr. Kates’ testimony constituted substantial evidence to support his finding, even with the slight definition inconsistency he had given. As an aside, this writer would point out that the term “maximum medical improvement” has no legal significance in Delaware, unlike some other jurisdictions. In rejecting the claimant’s appeal, the court further stated that the claimant had misinterpreted the requisite burden to terminate benefits since there must be a showing only that she is not fully incapacitated for purposes of working, but it need not be shown that the work injury has resolved. Therefore, the court affirmed the Board’s decision granting the termination since there was ample proof through Dr. Kates’ testimony that the claimant was no longer incapacitated.
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