Cantoni v. Delaware Park Racetrack & Slots

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DEBORAH CANTONI, )

) Case No.: N22A-06-002 FJJ Claimant-Below, ) Appellant ) CITATION ON APPEAL v. ) FROM THE DECISION OF ) THE INDUSTRIAL

DELAWARE PARK RACETRACK, ) ACCIDENT BOARD OF THE & SLOTS, ) STATE OF DELAWARE, Employer-Below ) NEW CASTLE COUNTY, Appellee, ) HEARING NO.:1213719

Submitted: March 14, 2023 Decided: March 16, 2023

OPINION AND ORDER

Upon Consideration of an Appeal from the Industrial Accident Board:

REVERSED.

Michael Ippoliti, Esquire, of the Ippoliti Law Group, 1225 North King Street, Suite 900, Wilmington, DE, Attorney for Appellant.

John W. Morgan, Esquire, of Heckler & Fabrizzio, 800 Delaware Avenue, Suite 200, Wilmington, DE, Attorney for Appellee.

JONES, J.

INTRODUCTION

Appellant Deborah Cantoni appeals an order of the Industrial Accident

Board (the “Board” or “IAB”) requiring her to reduce her current narcotic

dependence from a level of 75 milligram equivalents per day to zero. Prior to the

decision, Delaware Park Racetrack & Slots (“Delaware Park”) provided Ms.

Cantoni, a former employee, with expenses for morphine treatment related to a

slip and fall in 2001.

Delaware Park petitioned to terminate Ms. Cantoni’s disability benefits in

late 2021. The Board denied the petition in a decision dated May 13, 2022, but

ordered Ms. Cantoni to wean off narcotics medication by the end of the calendar

year. Ms. Cantoni appeals from this ruling.

The Court finds the Board erred in mandating that Ms. Cantoni reduce her

morphine intake from 75 milligram equivalents per day to zero within six months.

Therefore, the IAB’s decision must be REVERSED.

FACTUAL AND PROCEDURAL OVERVIEW In December 2001, Ms. Cantoni suffered a compensable injury when she

slipped and fell while working at Delaware Park.1 She sustained injuries to her

head, neck, and back.2 Delaware Park’s workers’ compensation insurance carrier

1 See Cantoni v. Delaware Park, No. 1213719 at 2 (Del. IAB May 13, 2022) (Decision on Petition in Terminate Benefits) (hereinafter “IAB Decision”). 2 Ms. Cantoni was diagnosed with a ruptured disk shortly after her slip and fall. See Hr’g Tr. (hereinafter “Tr.”) 51:25- 53:4, Mar. 8, 2022.

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accepted her injury as a compensable claim that year,3 and Ms. Cantoni

underwent surgery for her back injury in 2002.4

Ms. Cantoni received her disability benefits without interruption for

eighteen years.5 In May 2020, however, Delaware Park filed a Petition to

Terminate Benefits with the IAB.6 The petition disputed Ms. Cantoni’s need for

continued medical treatment.7

The Board partially granted the petition in January 2021, finding Ms.

Canton’s injection and ablation treatments were no longer compensable.8 But the

Board stopped short of halting her treatment altogether; instead, it ordered

Delaware Park to continue compensating Ms. Cantoni for her morphine

medication, albeit at a lesser amount.9 Specifically, the Board directed Ms.

Cantoni to reduce her morphine intake from 300 milligram equivalents to 90

milligram equivalents over the following ten months.10

After the Board’s January 2021 decision, Delaware Park ordered a medical

examination of Ms. Cantoni in August 2021, which revealed she was still taking

300 milligram equivalents of morphine.11 Consequently, Delaware Park filed a

3 See Tr. 50:14-51:7. 4 See Id. 51:25, 53:4. 5 See IAB Decision at 2. 6 See id. 7 See id. 8 See id. at 14. 9 See id. 10 See id. The reduction in morphine intake was to take place between January 2021 and October 2021. 11 See Renewed Petition to Terminate Benefits, attached as Ex. E to Appellant’s Op. Br.

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renewed Petition for Termination of Benefits in October 2021.12 Through the

renewed petition, Delaware Park, again, complained of Ms. Cantoni’s

noncompliance with the order to reduce her morphine intake to 90 milligram

equivalents and, again, challenged the reasonableness and necessity of the

treatment.13 The petition did not request the Board to reduce Ms. Cantoni’s

morphine intake to zero.14 It did, however, encourage the IAB to compel Ms.

Cantoni’s compliance with the “[narcotic] weaning process ordered in the

[January 2021] Board decision.”15

Thereafter, counsel for Delaware Park wrote to Ms. Cantoni’s attorney in

an attempt to resolve the matters addressed in the October 2021 petition.16 In the

letter, Delaware Park offered to “voluntarily pay for [morphine] up to the level

of 90 milligram equivalents per day.”17 As with the petition, the letter made no

mention of entirely eliminating Ms. Cantoni’s morphine intake.18

With the parties unable to come to a resolution, the Board arranged to hear

the renewed petition in March 2022. In anticipation of the March hearing, Ms.

Cantoni took the deposition of Dr. John Townsend, Delaware Park’s medical

expert, early that month. At the deposition, Dr. Townsend testified as follows:

12 See id. 13 See id. 14 See generally id. 15 See id. 16 See Letter from Delaware Park Counsel, attached as Exhibit G to Appellant’s Op. Br. 17 Id. 18 See generally id.

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[EMPLOYER COUNSEL]: Alright. Where do we go from here, in your opinion? [DR. TOWNSEND]: Well, again, it’s really dependent on whether [Ms. Cantoni] is able to tolerate weaning further. Certainly, if she wanted to be weaned more, that would be reasonable. And the other criteria would be, if she doesn’t really have pain reduction that’s substantial, or an increase in pain that’s substantial when they taper her, they could make a decision to taper her further. [EMPLOYER COUNSEL]: Is it reasonable to try to taper her down to zero? [DR. TOWNSEND]: Yeah, I mean, it’s always reasonable to try. I mean, the goal for people who have been on chronic narcotics is to try and taper them off of those. Not always – we’re not always successful in doing that, so it’s good to have a target to shoot for, and it appears that she is in the target range that’s been discussed previously. [EMPLOYER COUNSEL]: Do you feel it’s appropriate to continue with the weaning process from this point forward? [DR. TOWNSEND]: Yes. Again, as long as the patient’s tolerating it and she’s, you know, not having withdrawal or increases in her baseline pain levels, then it’s reasonable to continue with a weaning program. [EMPLOYER COUNSEL]: Alright. And your answers today have been held to the standard of a reasonable medical probability?

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[DR. TOWNSEND]: Yes.19

* * *

[CLAIMANT COUNSEL]: Doctor, you said if the patient doesn’t experience a significant uptick in terms of her pain levels, it would be not unreasonable to continue to wean her from the current level of 75 milligram equivalent – morphine equivalence per day, correct? [DR. TOWNSEND]: Yes. [CLAIMANT COUNSEL]: Doctor, if she does, however, have an increase in her pain level, would it be reasonable for her to continue at the present 75 milligrams - - morphine equivalent milligram - - if I’m getting that right - - morphine equivalent - - [DR. TOWNSEND]: Yes. [CLAIMANT COUNSEL]: - - per day, which is her present dosage? [DR. TOWNSEND]: Yes. I think, again, some people will tolerate going further; other people, you know, are intolerant. So, you know, depending on her response to the tapering - - and again, they suggested they were going to restart after it gets warmer out - - then, you know, it may be that 75 morphine [equivalents] is where she is best served at this point. [CLAIMANT COUNSEL]: In that respect, would you defer, Doctor, to the treating physician in terms of whether it’s

19 Deposition of John Townsend, M.D., Mar. 3, 2022 (hereinafter “Townsend Dep.”) at 21:5-24; 22 1-14.

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appropriate to continue the present dosage, depending upon her response to the weaning process? [DR. TOWNSEND]: Yes, I mean, again, he’s the one who’s seeing her, you know, and if she is tolerating [the weaning], then it’s reasonable to continue. If she’s not tolerating [the weaning], then I assume that he won’t continue, and that would be reasonable.20

Dr. Townsend’s was the sole medical testimony presented at the Board

hearing in March 2022. The Board ultimately found in favor of Delaware Park

and ordered Ms. Cantoni to “wean off her current [morphine dose] of 75

milligrams per day to zero within six months” of the decision.21

STANDARD OF REVIEW

When an employee suffers compensable injury, Delaware law requires the

employer to pay for reasonable and necessary medical “services, medicine, and

supplies” causally connected with the injury.22 The employee seeking

compensation bears the burden of proving, by a preponderance of the evidence,

that a work-related accident caused the injury.23 Where compensation has been

established and the employer seeks to terminate the benefits, the burden of proof

on the petition to terminate rests with the employer. 24

20 Id. at 23:20-24; 24:1-24; 25 1-8 (emphasis added). 21 See IAB Decision at 11-12. 22 19 Del. C. §2322. 23 See Coicuria v. Kauffman’s Furniture, 1997 WL 817889 at *2 (Del. Super., Oct. 30, 1997), aff’d, 706 A.2d 26 (Del. 1998). 24 C.F. Brown & Co. v. Mason, 168 A.2d 105 (Del. 1961).

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On appeal from the IAB, the Superior Court limits its review to

determining whether the IAB’s decision was free from legal error and supported

by substantial evidence.25 “Substantial evidence is that which ‘a reasonable mind

might accept as adequate to support a conclusion.’ It is a low standard to affirm

and a high standard to overturn.”26 Thus, the Court must search the entire record

to determine whether, based on all the testimony and exhibits, the Board could

fairly and reasonably reach its conclusions.27 The Court, however, “does not sit

as trier of fact with authority to weigh the evidence, determine questions of

credibility, and make its own factual findings and conclusions.” 28 It is solely

within the purview of the Board to judge credibility and resolve conflicts in

testimony.29 Where substantial evidence supports the administrative decision,

the Court must affirm the ruling unless it identifies an abuse of discretion or clear

error of law.30 Questions of law are reviewed de novo.31

ANALYSIS

Ms. Cantoni submits the Board committed reversable error in three

respects by: (1) issuing an order in contrast with Delaware Park’s expert and

applicable law; (2) ordering her to wean off narcotic medications without

25 See Glanden v. Land Prep., Inc., 918 A.3d 1098, 100 (Del. 2007). “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Oceanport Indus. v. Wilmington Stevedores, 636 A.3d 892, 899 (Del. 1994). 26 Hanson v. Delaware State Public Integrity Comm’n., 2012 WL 3860732 R *7. (Del. Super. Aug. 30, 2012). 27 See Nat’l Cash Register v. Riner, 424 A.3d 669, 674-75 (Del. 1980). 28 Johnson v. Chrysler Corp., 214 A.2d 64, 67 (Del. 1965). 29 See id. 30 See Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006). 31 See id.

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providing notice, in violation of her due process rights; and (3) sua sponte

granting Delaware Park relief it did not seek in its petition.

It is well established that the IAB cannot ignore unrebutted medical

evidence and “substitute its judgment” for that of a medical expert.32 If the record

indicates the Board made its decision on such grounds, then reversal upon judicial

review is necessitated.33

Against this background, the Court’s analysis will start and end with Dr.

Townsend’s testimony. As discussed above, Dr. Townsend was the sole provider

of medical testimony at the hearing and, to review, testified that: (1) Ms. Cantoni

was in compliance with the treatment plan ordered in January 2021;34 (2) it would

be reasonable for her to continue taking 75 milligrams equivalents if weaning

beyond that dosage increased her discomfort;35 and (3) further weaning Ms.

Cantoni off narcotics would be appropriate only if her treating physician deemed

it so.36

Read generously, Dr. Townsend’s testimony suggested Ms. Cantoni should

begin the weaning process. But, to the extent he opined on the issue at all, Dr.

Townsend clearly stated the decision of whether to entirely wean off narcotics

32 See Pusey v. Natkin & Co., 428 A.2d 1155, 1157 (Del. 1981); see also Clements v. Diamond State Port Corp., 831 A.2d 870, 878 (Del. 2003)(“It is well established that the Board cannot substitute its judgment to nullity the objective findings of a medical expert that fully support he Claimant’s subjective complaints.”) 33 See Kreshtool v. Delmarva Power and Light Co., 310 A.2d 649, 652 (Del. Super. 1973). 34 As noted supra, Dr. Townsend testified that Ms. Cantoni had actually reduced her morphine intake beyond what was required in the January 2021 order. 35 Townsend Dep. 24:13-21. 36 Id. 25:3-8.

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should be left to the discretion of Ms. Cantoni’s treating physician.37 At no point

did he indicate she should halt usage by a date certain.

The Board, obviously, is not Ms. Cantoni’s treating physician. And the

Board, obviously, is not in position to act as such. Thus, the order requiring Ms.

Cantoni to entirely wean off narcotics within six months is not only unsupported

by substantial evidence; it is not supported by any evidence at all.

Because the Board clearly abused its discretion by issuing an order that has

no record support, the Court need not, and will not, reach Ms. Cantoni’s final two

arguments. The decision of the IAB is REVERSED.

IT IS SO ORDERED.

/s/ Francis J. Jones, Jr. Francis J. Jones, Jr., Judge

Via File & Serve Xpress

37 Id.