Arrants v. Home Depot

65 A.3d 601, 2013 WL 1897146, 2013 Del. LEXIS 229
CourtSupreme Court of Delaware
DecidedMay 7, 2013
DocketNo. 662, 2012
StatusPublished
Cited by17 cases

This text of 65 A.3d 601 (Arrants v. Home Depot) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arrants v. Home Depot, 65 A.3d 601, 2013 WL 1897146, 2013 Del. LEXIS 229 (Del. 2013).

Opinion

HOLLAND, Justice:

The claimant-appellant, Stephen Arrants (“Arrants” or “Claimant”), appeals from a Superior Court Order affirming the Industrial Accident Board’s (the “Board”) order granting the employer-appellee’s, Home Depot’s (“Home Depot”), petition to terminate Arrants’ total disability benefits. Ar-rants raises two claims on appeal. First, he argues that the Board’s decision was in error because all experts agreed that his condition had not improved since the 2007 Board finding of total disability; and second, that the Board’s decision was not supported by competent evidence in the record.

We have concluded that both arguments are without merit. Therefore, the judgments of the Superior Court must be affirmed.

Facts and Procedural History

In May, 2004, Arrants injured his lower back and neck while in the course and scope of his employment at Home Depot. Home Depot and Arrants later settled Ar-rants’ worker’s compensation claim, with Home Depot agreeing to pay worker’s compensation for total disability.

In 2007, Home Depot filed a petition to terminate Arrants’ total disability payments. The Board denied the motion, finding Arrants to still be totally disabled. In 2008, Home Depot filed another petition for termination of total disability payments. The petition was withdrawn pending the outcome of Arrants’ scheduled spinal surgery. In 2009, Arrants and Home Depot reached an agreement on compensation.

In 2011, Home Depot filed a third petition to terminate Arrants’ total disability payments. Home Depot presented the testimony of Dr. David Stephens (“Dr.Stephens”), a medical expert who had examined Arrants eight times since his injury, Dr. Stephens opined that Arrants’ diagnosis of disability was, at that time, based solely on subjective pain complaints. Dr. Stephens also testified that Arrants’ pain reports had not diminished since the [604]*604Board’s denial of Home Depot’s 2007 petition.

Dr. Stephens testified that he believed the pain was, in part, also a result of a non-physical source: Arrants’ chronic opioid dependency. In October, 2011, Ar-rants was taking high doses of Oxycontin three times a day, Roxicodone four times a day, Cymbalta twice a day, as well as Klonopin, Nuvigil, Tazodone, and Ability. Dr. Stephens believed the 2009 surgery was unnecessary and recommended against it at the time. Dr. Stephens also believed that Arrants’ lack of progress after the surgery bore out his — Dr. Stephens’ — medical opinion that the surgery was unnecessary. In Dr. Stephens’ opinion, Arrants was capable of full time sedentary work.

Home Depot also presented Vocational Consultant Daniel O’Neill (“O’Neill”), who performed a labor market survey identifying eighteen sedentary jobs Arrants was capable of performing in the current labor market-. O’Neill testified to Arrants’ transferable skills, including high school education, specialized technical knowledge, and extensive customer service experience. O’Neill had confirmed with each prospective employer that Arrants’ qualifications made him a viable candidate for the available position.

Dr. Selina Xing (“Dr.Xing”), Arrants personal physician, testified on his behalf. Dr. Xing described Arrants multiple surgeries, including total disc replacements and a disc fusion. Dr. Xing testified that Arrants reports being in constant “agony,” with levels of pain reaching a nine out of ten. She had also diagnosed Arrants with severe depression, which she related to his injury, constant pain, and lack of employment.

Dr. Xing testified Arrants was totally disabled, and could not “do any gainful job on a consistent basis.” However, Dr. Xing testified she deemed Arrants to be totally disabled based only on his subjective pain complaints. In similar circumstances, Dr. Xing testified, a person with Arrants’ diagnosis would typically be able to return to work, and that returning to work would be psychologically beneficial.

The record reflects that Arrants participated in a prescription drug detoxification program. He admitted that he resumed taking the prescription medications after being released from the detoxification program because he “had to have something to take the edge off.” He also admitted to taking prescription medication prescribed to his fiancé.

The Board concluded that Arrants was no longer totally disabled. The Board found that Arrants had “not established displacement [from work] either on a pri-ma facie basis or by means of a failed job search.” The Board concluded there were sedentary jobs available for Arrants on the open labor market and that Arrants had the necessary skills to qualify and compete for those jobs. The Board found that the open positions available paid less than Ar-rants’ pre-accident average weekly wage; therefore, the Board awarded Arrants $128.94 per week for his partial disability.

Arrants appealed the Board’s decision to the Superior Court, which affirmed. This appeal followed.

Standard of Review

The standard of appellate review for a Board’s decision is the same in this Court and the Superior Court. A Board’s decision is reviewed on appeal for errors of law and to determine whether substantial evidence exists to support the Board’s findings of fact and conclusions of law.1 [605]*605“Substantial evidence equates to ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ”2 Appellate courts do not weigh the evidence, determine questions of credibility, or make factual findings.3 On appeal, errors of law are reviewed de novo.4

Absent an error of law, the standard of appellate review for a Board’s decision is abuse of discretion.5 “The Board has abused its discretion only when its decision has ‘exceeded the bounds of reason in view of the circumstances.’ ”6 The Board “may adopt the opinion testimony of one expert over another; and that opinion, if adopted, -will constitute substantial evidence for purposes of appellate review.”7 The Board also “may accept or reject an expert’s testimony in whole or in part.”8

Periodic Disability Review.

Title 19, section 2347 of the Delaware Code states in relevant part:

On the application of any party in interest on the ground that the incapacity of the injured employee has subsequently terminated, increased, diminished or recurred or that the status of the dependent has changed, the Board may at any time, but not oftener than once in 6 months, review any agreement or award.

To show that a claimant’s incapacity has terminated, evidence must be presented that the claimant is medically able to return to work and that employment is available within the claimant’s restrictions. In Puckett v. Matrix Services,9 we stated:

Section 2347 allows an employer to petition the Board to review previous total disability awards, so long as there is a change in condition or circumstances. This is different from a requirement that the employer must prove the physical injury has changed.

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Bluebook (online)
65 A.3d 601, 2013 WL 1897146, 2013 Del. LEXIS 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arrants-v-home-depot-del-2013.