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[T] Flax v. State6/29/2004
Court affirmed the Board's judgment. This appeal followed. In reviewing Flax's claims on appeal, our standard of review mirrors the standard applied by the Superior Court. We review de novo any legal issues decided by the Board and review the Board's factual findings to determine whether they are supported by substantial evidence.
(7) In his opening brief on appeal, Flax raises five issues. First, Flax contends the Board erred in failing to find that the State had violated the requirements of the Workers' Compensation Act. Second, Flax asserts that the Board erred in terminating his benefits in the absence of a petition by the State to terminate his benefits. Third, Flax contends that he was entitled to rely on Dr. Sternberg's advice not to return to work and that the Board violated his rights under the Workers' Compensation Act by accepting Dr. Kamali's testimony rather than Dr. Sternberg's. Fourth, Flax argues that the Board violated his rights by allowing the State to admit Dr. Kamali's deposition transcript into evidence at the hearing. Finally, Flax appears to assert that, given the State's agreement as to the compensability of the accident and Dr. Sternberg's order not to return to his job, he had no obligation either to return to work with the State or to look for other employment until the Board ruled he was not totally disabled.
(8) In response, the State asserts that Flax misunderstands both the facts of his case and the applicable law. The State contends that Flax's reliance on the decision in Gilliard-Belfast v. Wendy's, which forms the foundation of most of his arguments on appeal, is misplaced. In Gilliard-Belfast, the parties agreed that the claimant was injured in an industrial accident and the employer paid the claimant for a period of total disability and paid for surgery on the claimant's knee. After the claimant filed a petition for additional compensation, the Board concluded that the claimant required a second knee surgery and that the need for surgery was due to her industrial accident. Nonetheless, the Board held that the claimant had failed to establish her right to temporary total disability benefits while waiting for the second surgery, even though her treating physician had ordered her not to work. This Court reversed the Board's decision because, given the "unanimous view" of both parties' medical experts that the surgery was necessary and reasonable, requiring the claimant to return to work in violation of her doctor's orders would have put the injured employee "in a completely untenable position."
(9) The State argues that Gilliard-Belfast has no application because the parties in Flax's case never had an agreement on Flax's claim for total disability benefits for any period of time and because the medical experts were not in agreement on Flax's claim of being totally disabled. We agree. Although the State did not dispute that the accident was compensable for the purposes of paying Flax's reasonable and necessary medical expenses, Flax presented no evidence of an agreement with the State as to total disability benefits. Moreover, when competing medical experts disagree on a claimant's disability, the conflicting testimony is a matter for the Board to resolve as the trier of fact. In Flax's case, the Board explained its rationale for accepting Dr. Kamali's opinion over Dr. Sternberg's opinion. The Board's rationale is supported by the record.
(10) With respect to Flax's claims that the State was required to file a petition to terminate and that the Board erred in considering the deposition testimony of the State's medical expert, we note that these issues were not raised before the Board and we find basis for consideration of these claims fo
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