RIMSI Corporation v. Massey

• Court: Superior Court of Delaware
• Decided: November 10, 2020
• Docket: N19A-12-006 DCS
• Status: Published

Opinion

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