BEFORE THE INDUSTRIAL ACCIDENT BOARD OF THE STATE OF DELAWARE, JOHN NOBLE: ) po3l8e ) Employee, ) ) v } Hearing No, 1144068 (2!) ) BACK BURNER, ) ) Employer. ) DECISION ON PETITION TO TERMINATE BENEFITS Pursuant to due notice of time and place of hearing served on all parties in interest, the above-stated cause came before the Industrial Accident Board on December 3, 2007, in the Hearing Room of the Board, in New Castle County, Delaware. ‘The record remained open until December 7, 2007, in order for Employer's counsel to supplement the record with case citations referred to du g closing arguments. An extension of time for issuance of the decision was taken pursuant to DEL. CoDe ANN. tit. 19, § 2348(k), PRESENT: DEBORAH J. MASSARO Workers’ Compensation Hearing Officer APPEARANCI Joseph W. Weik, Attorney for the Employee Dennis J. Menton, Attorney for the Employer Be fiw Cel os-a0-op-NATURE AND STAGE OF THE PROCEEDINGS John T. Nobles (“Claimant”) sustained compensable injuries to the low back during a lifting incident on September 4, 1998, while working for the Back Bumer restaurant (‘Employer”). On November 20, 2003, the Board awarded Claimant a recurrence of total disability benefits beginning April 23, 2003, related to the 1998 work accident, Claimant is presently receiving total disability benefits at the compensation rate of $266.68 per week based on his average wage of $400.00 per week at the time of the work accident. On August 12, 2004 and December 30, 2005, Employer filed unsuccessful Petitions to Terminate Claimant’s benefits. On July 30, 2007 Employer filed a third Petition to Terminate Benefits, and alleges that Claimant is capable of working from home with vocational rehabilitation. Claimant maintains that the only thing that has changed since the June 19, 2006 Board decision det ing Employer's second request for a termination of benefits is that Claimant has experienced a worsening of his condition. Claimant has been receiving benefit from the Workers’ Compensation Fund since the filing of Employer's petition, pending a decision on the petition. The parties stipulated that this case could be heard and decided by a Workers? Compensation Hearing Officer, in accordance with title 19, section 2301B(a)(4) of the Delaware Code. When hearing a case by stipulation, the Hearing Officer stands in the position of the Industrial Accident Board. See Det. Cope ANN. tit, 19, § 2301B. A hearing was held on Claimant's petition on December 3, 2007. This is the decision on the merits of Claimant's petition.! ' Normally, decisions are to be issued within fourteen days of a hearing. See DEL. CODE ANN. tit, 19, § 2348(k). Because of workload demands and other time restraints, it was necessary to take an extension of time to issue this decision in accordance with ttle 19, section 2348(k) of the Delaware Code,SUMMARY OF THE EVIDENCE Dr. Alan J. Fink, a neurologist, testified by deposition on behalf of Employer. He has examined Claimant twelve times, beginning August 16, 1999. He reviewed the pertinent medical records. In June of 2007 Dr. Fink initially opined that Claimant could work in a sedentary capacity. ‘Then in October, based on Claimant's increased complaints of pain in his low back and legs, Dr. Fink opined that Claimant was not able to work in any capacity. Then, at the request of counsel for Employer, Dr. Fink prepared an addendum report, which distinguishes between subjective and objective complaints. Thus, now Dr. Fink opines that as of the date of his last examination of Claimant, October 19, 2007, Claimant is not capable of working in the “conventional sense,” but rather that Claimant needs a vocational rehabilitation counselor to work with him and teach him how to use computer programs so that he can work from his home. Dr. Fink also opines that based only on his objective findings, Claimant would still qualify for a sedentary position. Finally, during cross-examination Dr. Fink agreed that he still opines that, both objectively and subjectively, Claimant is not capable of returning to work until he has an improvement in his pain level. On June 2, 2007, Claimant reported that he had neck, and upper and lower back pain, but on that day he did not have any leg pain, He had normal range of motion of the neck. He had limitation of back motion by at least twenty degrees in all directions, and back pain with straight leg raising. There were no muscle spasms in his back or neck By October 19, 2007, Claimant's subjective complaints increased, but Dr. Fink testified that he did not find an objective change from his last examination, Dr. Fink also testified that during his examination, objectively Claimant had a little bit more difficulty with limitation of forward flexion, Claimant's strength was a slight bit weaker, and he had some reflex loss in the