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State v. Thompson12/2/2004
Submitted: October 29, 2004
ORDER
This 2nd day of December, 2004, on consideration of the briefs of the parties, it appears to the Court that:
(1) This is an appeal by the State of Delaware from a decision of the Industrial Accident Board (the "Board"), granting the petition of the employee/Appellee, Rebecca Thompson, to determine compensation due, denying the State's petition to terminate benefits, and awarding Thompson ongoing total disability at the rate of $318.24 per week. The State contends that the Superior Court erred by: (i) failing to critically assess evidence that
Thompson's medical expert was unaware of Thompson's long history of pre-existing back conditions; (ii) failing to critically assess evidence of a medically-unexplained, substantial gap in Thompson's treatment between the date of the industrial accident and the date of the alleged outset of Thompson's back pain after the industrial accident; and (iii) affirming the Board's decision that Thompson was totally disabled from returning to work. We find the Board's decision to be supported by substantial evidence and free of legal error. Accordingly, we affirm.
(2) On December 18, 2001, Thompson was involved in an automobile accident while driving a bus for the State. Thompson was employed by the State as a bus driver in the Christiana School District. As a result of this industrial accident, Thompson injured her neck and back, for which she was initially treated by Dr. Hsu, her primary physician. Dr. Hsu subsequently referred Thompson to Dr. Rastogi, a board-certified neurosurgeon. On January 8, 2002, Dr. Rastogi performed surgery on Thompson's neck. In July 2002, Thompson began to experience pain in her back along with numbness in her legs. Thompson noticed the pain in her back after an automobile trip to Florida in which she was a passenger.
(3) Thompson has a long history of back problems. Before the industrial accident, Thompson had undergone two surgeries on her lower back and continued being treated by a physician, Dr. Boulos, approximately once a year for pain injections. Thompson's most recent pain injection occurred in October 2001, two months before the industrial accident.
(4) On November 26, 2002, Thompson filed a petition to determine compensation due, seeking temporary total disability benefits. On December 19, 2002, the State filed a petition to terminate Thompson's disability benefits, alleging that Thompson was capable of returning to work. The parties resolved the issue of compensability of Thompson's neck injury , leaving the compensability of her back injury and the State's petition to terminate disability benefits as the sole issues for the Board's consideration. On June 3, 2003, the Board determined that Thompson's back injury was compensable and denied the State's petition to terminate Thompson's disability benefits. In reaching its decision, the Board accepted the testimony of Dr. Rastogi, Thompson's medical expert, and rejected the testimony of Dr. Hogan, the State's medical expert.
(5) "This Court, replicating the role of the Superior Court, reviews de novo legal issues decided by the Board and reviews factual findings to determine whether they are supported by substantial evidence." Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It is "'more than a scintilla but less than a preponderance ....'" Further, the Board is free to choose between conflicting medical expert opinions, and either opinion constitutes substantial evidence for purposes of appeal.
(6) The State's first argument on appeal is that the Superior Court erre
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