Smith v. James Thompson & Co.

918 A.2d 1164, 2007 Del. LEXIS 82, 2007 WL 602468
CourtSupreme Court of Delaware
DecidedFebruary 28, 2007
DocketNo. 610, 2005
StatusPublished

This text of 918 A.2d 1164 (Smith v. James Thompson & Co.) 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
Smith v. James Thompson & Co., 918 A.2d 1164, 2007 Del. LEXIS 82, 2007 WL 602468 (Del. 2007).

Opinions

BERGER, Justice,

for the Majority.

In this appeal, we again consider whether a claimant who suffers a work-related injury is entitled to disability compensation based only on a treating doctor’s instruction not to work. That was our holding in Gilliard-Belfast v. Wendy’s, Inc.1 Since the Gilliard-Belfast decision, however, questions have arisen about the scope and applicability of the “no work order” rule. The rationale of the Gilliard-Belfast rule is that, until the Industrial Accident Board decides the issue, a claimant should be able to rely on his or her doctor’s determination that the claimant is not able to work. Thus, a claimant who suffers a work-related injury is entitled to total disability benefits from the time that the claimant’s treating physician enters a no work order until the physician removes that restriction or the Board concludes that the claimant is not totally disabled. In this case, the Board and the Superior Court held that the claimant, whose doctor had given her a no work order, was not entitled to disability benefits. We reverse.

Factual and Procedural Background

Shirley Smith was working in the shipping department at James Thompson & Co. on August 9, 2002, when she injured her lower back. Smith began a conservative course of treatment with her primary physician, and others, but she continued to suffer pain despite medication and physical therapy. She began treating with Dr. Richard P. DuShuttle, an orthopedic surgeon, in May 2003. He ordered an MRI of Smith’s spine, which revealed a herniated disc at L5-S1. Smith began treating with Dr. Ganesh Balu, a physiatrist, in September 2003. Over the next eight months, Balu gave Smith a series of injections, but they did not provide long-term relief. Balu referred Smith back to DuShuttle for a surgical consultation, but Smith was opposed to surgery.

In September 2004, Smith saw Balu and reported that she continued to have low-back pain. Smith wanted to return to work, however, because of her financial situation. Balu gave Smith a note authorizing light-duty work with the restriction that she not lift more than ten pounds and not be required to constantly sit, stand, walk or stoop. In October 2004, Smith went to work at Unitrac, where she worked full-time in a production job that required her to move around during the day. She reported to Balu that she was taking narcotic pain medication and that her low back and radicular pain were worsening.

Smith was laid off in November 2004, and did not return to work. On January 5, 2005, Balu examined Smith, who reported that her low back pain was increasing. Balu discussed treatment options, which included another surgical evaluation if Smith’s symptoms continued to deteriorate. As of that date, however, Balu had not modified his prior work order, which allowed Smith to perform light-duty work with restrictions.

On January 10, 2005, Smith saw Balu’s associate, Dr. Swami Nathan. She brought [1166]*1166a form that had to be completed in order to allow Smith to receive Medicaid and Food Stamps. Nathan completed the form with a note saying that Smith could not work and that her condition would last for 6 to 12 months. Smith next visited Balu on February 2, 2005. At that time, her condition remained the same. Smith was taking narcotic medications for her pain, and was considering surgery. Balu advised Smith to get a second opinion from Dr. Hermantin before surgery. Balu also advised Smith to stay off work, and gave her a note to that effect.

Smith and Thompson had entered into an agreement whereby she received total disability compensation for the period from May 3, 2003 through May 3, 2004. In September 2004, she filed a Petition to Determine Additional Compensation Due with the Industrial Accident Board. In the Petition, as amended, Smith sought additional total disability compensation beginning January 10, 2005. At the hearing on Smith’s Petition, Thompson’s doctor, Dr. William Barrish testified that Smith could return to light-duty work. The Board rejected Balu’s testimony and concluded that Smith had not satisfied her burden of establishing a recurrence of total disability. The Superior Court affirmed the Board’s decision and this appeal followed.

Discussion

The issue presented by this appeal is not whether Smith established that she had a recurrence of total disability. The Board heard the evidence and concluded that Thompson’s medical evidence was more credible than Smith’s. This Court does not question that conclusion, which was supported by substantial evidence and is legally correct. The issue is whether, notwithstanding the Board’s adverse decision, Smith is entitled to total disability compensation for the time before the Board’s decision because she was under her doctor’s order not to work.

In Gilliard-Belfast v. Wendy’s, Inc.,2 this Court held that “a person who can only resume some form of employment by disobeying the orders of his or her treating physician is totally disabled, at least temporarily, regardless of his or her capabilities.”3 The particulars of the claimant’s medical condition were not significant to the Court’s holding. Rather, the Court focused on the doctor/patient relationship and the risk to the claimant of disregarding her doctor’s order:

The Board ... held that Gilliard-Belfast had not established her entitlement to temporary total disability benefits while she was waiting to have ... surgery, even though the treating physician had ordered her not to work. The Board ruled that, ... “from a physical standpoint, Gilliard-Belfast has not been, and is not, totally disabled.”
The precedential effect of the Board’s decision would place injured workers in a completely untenable position. If a treating physician’s order not to work is followed, the claimant risks the loss of disability compensation if the Board subsequently determines that the claimant could have performed some work. Conversely, if the treating physician’s order not to work is disregarded, a claimant who returns to work not only incurs the risk of further physical injury but also faces the prospect of being denied compensation for that enhanced injury.4

This Court reaffirmed the Wendy’s holding in Clements v. Diamond State Port Corp.5 In Clements, the Board found that [1167]*1167the claimant was not a credible witness and that his subjective complaints had misled his treating physician. As a result, the Board concluded that the claimant could not rely on his physician’s no work order. We reversed:

The rationale for this Court’s holding in Gilliard-Belfast was based upon the operative fact that, in the medical opinion of the claimant’s treating physician, the claimant was totally disabled.
That rationale is directly applicable to this case. Medical doctors must always make a diagnosis on the basis of all available data, including the patient’s subjective complaints, as measured wherever possible by objective findings that are available upon physical examination and testing.

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Bluebook (online)
918 A.2d 1164, 2007 Del. LEXIS 82, 2007 WL 602468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-james-thompson-co-del-2007.