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State v. Thompson12/2/2004
d by failing to critically assess evidence that Dr. Rastogi was unaware of Thompson's long history of pre-existing back conditions. In essence, the State contends that there was not substantial evidence in the present record to support the Board's decision to accept Dr. Rastogi's opinion concerning the causation of Thompson's back injury. We disagree and find that there was substantial evidence in the present record to support the Board's decision. The record shows that the Board clearly explained its reasons for accepting Dr. Rastogi's opinion and rejecting Dr. Hogan's opinion. The Board noted that Dr. Rastogi stood in a better position to assess Thompson's condition because he performed Thompson's prior neck surgery and followed up with Thompson on two occasions. The Board also found that Dr. Hogan examined Thompson only once. In addition, Dr. Rastogi testified that his causation opinion remained unchanged even considering Thompson's prior back problem.
(7) The State's second argument on appeal is that the Superior Court erred by failing to critically assess evidence of a medically-unexplained, substantial gap in Thompson's treatment between the date of the industrial accident on December 18, 2001 and the date of the alleged outset of Thompson's back pain in July 2002 after her automobile trip from Delaware to Florida and back. The State is essentially arguing that because of the gap in Thompson's treatment, Thompson's back condition was therefore attributable to her prior back conditions and not the industrial accident. We disagree and find that there is substantial evidence in the present record to explain the gap in treatment for Thompson's back injury . First, as the record shows, Dr. Rastogi testified that he initially focused on Thompson's neck injury, rather than her back injury, because Thompson's neck injury appeared to be a more urgent problem. Second, Dr. Rastogi testified that Thompson's neck injury masked her lower back symptoms, thereby making her back injury appear to be not as significant as it was in actuality. Finally, Thompson discussed the back pain initially with Dr. Hsu and Dr. Rastogi was under the impression that Dr. Hsu had discussed the back injury with Thompson.
(8) Thompson's third argument on appeal is that the Superior Court erred by affirming the Board's decision that Thompson was totally disabled from returning to work. Because we find substantial evidence in the present record to support the Board's finding that the accident exacerbated Thompson's underlying back condition, it logically follows, and we therefore hold, that the Board did not err in denying the State's petition to terminate benefits. The record shows that Thompson was totally disabled from returning to work. It is well settled in Delaware that the Board's acceptance of Dr. Rastogi's testimony, even though contradicted by the testimony of Dr. Hogan, qualifies as substantial evidence for purposes of this appeal. After a careful review of the record, we find that the decisions of the Board are supported by substantial evidence and are free of legal error. The Superior Court was correct in its judgment that the decisions must be affirmed.
NOW THEREFORE, IT IS SO ORDERED that the judgment of the Superior Court is AFFIRMED.
Page 1 2 Delaware Personal Injury Attorneys
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