English v. Reed Trucking

• Court: Superior Court of Delaware
• Decided: July 6, 2016
• Docket: N15A-05-007 PRW
• Status: Published

Opinion

IN THE SUPERIOR COURT OF TIIE STATE OF DELAWARE

KENNETH ENGLISH, Claimant-Appellant, Cr0ss-Appellee, C.A. N15A-05-007 PRW

REED TRUCKING,

Empl0yer-Appellee, Cross-Appellant.

< \_¢\u\./\¢~a\/\/\./

Appeal Decided: March 24, 2016 Opinion on Appeal Withdrawn: April 25, 2016 Appeal Re-submitted and Cross-Appeal Submitted: May 2, 2016 Decided: July 6, 2016

Upon Appealf'om the Decision of the Industrial Accidem‘ Boam'. AFFIRMED.

OPINION AND ORDER Gary S. Nitsche, Esquire and Samuel D. Pratcher, Esquire, (argued), Weik, Nitsche, Dougherty & Galbraith, Wilmington, DelaWare, Attorneys for Claimant-

Appellant Kenneth English.

Joseph Andrews, Esquire, (argued), Hoffman Andrews Law Group, Dover, Delaware, Attorney for Empl0yer-Appel1ee Reed Trucking.

WALLACE, J.

I. INTRODUCTION

The Industrial Accident Board (the "Board") granted Kenneth English’s Petition to Determine Additional Compensation Due and ordered Reed Trucking to

l Kenneth English appeals the Board’s

pay Mr. English’s medical witness costs. percentage of impairment determination made in its decision granting his Petition. Reed Trucking cross-appeals the Board’s grant of medical witness costs to Mr. English.

In its decision, the Board found that Mr. English sustained five percent impairment of his right upper extremity. Mr. English complains the Board’s decision granting only that level of impairment is not supported by substantial evidence because "the Board erred in finding that [Mr. English] had an eight percent impairment to his uninjured shoulder."z Essentially, Mr. English argues that the Board erred in crediting his employer’s expert, Dr. Andrew Gelman, over the testimony of his own expert, Dr. Stephen J. Rodgers. Mr. English’s employer, Reed Trucking, argues that the Board’s decision to accept "one expert’s testimony

over the contradictory testimony of another expert constitutes substantial evidence

in and of itself."3

l English v. Reed Trucking, Hearing No. 1405378 (Apr. 27, 2015) (detennination of

additional compensation due) [hereinafter IAB Dec.].

2 Appellant’s Opening Br. ll.

3 Employer’s Answering Br. 25.

procedural history and the hearing testimony, 50 Taking into account thc doctors’

and Mr. English’s testimony, the Board decided that Dr. Gelman used the appropriate method to rate Mr. English’s impairment

"The Board accept[ed] Dr. Gelman’s opinion as more credible and reliable than Dr. Rodger’s [sic] opinion in this case."§l The Board found that Mr. English "sustained a 5% permanent partial impairment of the right upper extremity" based on the AMA Guidelines, Sixth Edition.” The Board also found that Dr. Rodgers’ thirteen percent rating "overstates and does not accurately reflect [Mr. English’s] true loss of use."53 For example, ten percent of Dr. Rodgers’ rating "Was based on the use of an analogous procedure listed in the Fifth Edition" since Mr. English’s specific surgical procedure was not listed.54 Conversely, Dr. Gelman’s rating under the Sixth Edition "was based specifically on the type of injury [Mr. English] sustained and adjusted based on the loss of range of motion and other factors."”

As mentioned, the Board determined that Mr. English suffered a five percent

permanent impairment to his right shoulder. Based on that determination, the

5° Id. ar 2-12,

5‘ ld. ar 13. 52 Id. 55 Id. 54 ld. 55 ld.

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Board concluded: "Having received an award, [Mr. English] is entitled to have his

medical witness fees taxed as a cost against [Reed Trucking]."”

III. STANDARD OF REVIEW

This Court has repeatedly emphasized the limited extent of its appellate review of the Industrial Accident Board’s decisions: the Court must determine if the Board’s factual findings are supported by substantial evidence in the record57 and whether its decision was legally correct.$g

"Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."§g The Court must, therefore, review the record to determine if the evidence is legally adequate - i.e., includes some substantial evidence - to support the Board’s factual findings. In doing so the Court evaluates the record in the light most favorable to the prevailing party, here, Reed Trucking (prevailer on the discreet contested issue of level of physical

impairment), to determine whether substantial evidence existed to reasonably

56 ld. at l4. The Board mistakenly wrote that the medical witness fees would be "taxed as a cost against the State." Id. This was clearly a typographical error as such costs are taxed against an employer or the employer’s insurance carrier. DEL. CODE ANN. tit. l9, § 2322(e) (20l5) ("The fees of medical witnesses testifying at hearings before the Industrial Accident Board on behalf of an injured employee shall be taxed as a cost to the employer or the employer’s insurance carrier in the event the injured employee receives an award.") (emphasis added).

57 Hzszed v. E_l_ duPom de Nem@urs & c@_, 621 A.2d 340, 342 (Del. 1993). 58 Johnson v. Chrysler Corp., 213 A.Zd 64, 66 (Del. l965).

59 Hzs¢ed, 621 A.zd at 342 wiring olney v. C@och, 425 A.2d 610, 614 (Del. 1931)),

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support the Board’s conclusion.60 The Court docs not "weigh cvidcncc, detcrrninc questions of credibility or make its own factual findings."“ Rather, the Court must afford "a significant degree of deference to the Board’s factual conclusions and its application of those conclusions to the appropriate legal standards."éz l`*or it is the

Board, not the Court, that is responsible for deciding which medical expert is more

credible. And so, the Court does not parse the expert’s testimony in order to

reach its own decision about which expert is more convincing;64 only if the Court finds that the Board’s determination on expert witness credibility is unsupported by some substantial competent evidence to support the finding, may the Court

overtum the Board’s decision.65

Burmudez v. PTFE Compounds, Inc., 2006 WL 2382793, at *3 (Del. Super. Ct. Aug. l6, 2006).

Olney, 425 A.2d at 6l4. Burmudez, 2006 WL 23 82793, at *3_ (citing DEL. CODE ANN. tit. 29 § 1l42(d)).

63 See Clements v. Diamona' State Port. Corp., 831 A.Zd 870, 877-78 (Del. 2003); see also, Coleman v. Dep ’t ofLabor, 288 A.Zd 285, 287 (Del. Super. Ct. l972).

64 clemenzs, 831 A.zd at 878; Fzem' v. catholic Heal¢h Eas¢, 2014 wL 2444795, ar *2 (Del. Super. Ct. Apr. 29, 20l4).

65 See Clements, 831 A.2d at 877-78; see also, Carey v. H & H Maintenance, 2001 WL 985l l4, at *2 (Del. Super. Ct. Aug. 6, 2001).

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Where the Court must interpret the meaning of a statutory provision, thc

Court’s review is de novo.66 "A reviewing court may accord due weight, but not

defer, to an agency interpretation of a statute administered by it."67

IV. PARTIES’ CONTENTIONS

A. MR. ENGLISH’S APPEAL.

On appeal, Mr. English argues he is thirteen percent impaired and the Board’s finding that he has an eight percent impairment baseline - bringing his net compensable impairment down to five percent - is unreasonable and unsupported. He argues that the Board’s decision "does not state how it came to a determination that [Mr. English] had an eight percent impairment to his uninjured shoulder" and

"fails to address that a physical examination was done at the hearing."ég At

66 See Pub. Waler Supply Co. v. DiPasquale, 735 A.2d 378, 382-83 (Del. 1999) ("Statutory

interpretation is ultimately the responsibility of the courts.").

See also Del. Valley Field Servs. v. Ramirez, 105 A.3d 396, 402 (Del. Super. Ct. 2012), af d sub nom., Del. Valley Field Ser'vs. v. Melgar-Ramirez, 61 A.3d 617 (Del. 2013) (ho1ding that a workers’ compensation claimant met the statutory definition of "employee" under Delaware’s Workers’ Compensation statute, even though he was an illegal alien, because the statute defined "employee" broadly to mean "every person," and because the statute specifically excluded other categories of persons, but not "illegal aliens"); Workers’ Comp. Fund v. Transp. Servs., Inc., 812 A.2d 877, 879 (Del. 2002) (reviewing de novo whether a displaced worker qualified for total disability benefits under the statute); De Ville Court Apartments v. Long, 2000 WL 305329, at *1-2 (Del. Super. Ct. Mar. 16, 2000), ajY’d, 763 A.2d 90 (Del. 2000) (reviewing de novo whether the Industrial Accident Board erred in construing provision of workers’ compensation law).

Pub. Water, 735 A.Zd at 382-83._

Appellant’s Opening Br. ll.

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bottom, Mr. English argues that the Board erroneously accepted Dr. Gelman’s expert testimony over that of Dr. Rodgers.

Reed Trueking responds that the Board’s acceptance of one expert’s testimony over the contrary opinion testimony of another meets the "substantial evidenee" standard.69 Reed Trucking says, moreover, that because Mr. English stipulated that Dr. Gelman was qualified to rate Mr. English’s impair'rnent, the Board could "choose to rely upon Dr. Gelman instead of Dr. Rodgers in this matter."m Reed Trucking also suggests that the Board’s "Summary of Evidence" section of its decision addressed the physical examination that was done at the hearing. And too, that Dr. Rodgers "admitted that he did not have any way to measure Claimant’s ranges of motion at the hearing [and] therefore, could only testify that there were ‘minimal deficits today, as there were when I measured it."’n

B. REED TRUCKING’S CRoss-APPEAL.

Reed Trucking also appeals the Board’s decision, arguing that its decision to tax Mr. English’s medical witness costs to Reed Trucking was erroneous. Under

19 Del. C. § 2322(e), medical witness fees "shall be taxed as a cost to the employer

Employer’s Answering Br. 25. Id. at 26.

Id. at 23.

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. . . in the event the injured employee receives an award." Reed Trucking argues that an "award" is limited to "any favorable change of position or benefit, as the

result of a Board decision. 2 Reed Trucking stipulated pre-hearing to Mr. English being five percent permanently impaired. ln Reed Trucking’s view, the IAB proceedings did not result in a favorable change in Mr. English’s position, and therefore, he received no "award."”

In resp0nse, Mr. English argues the Board’s decision to award Mr. English five percent pennanency is an award within the meaning of § 2322(€).74 Mr. English argues that there "is no requirement that the Board compare the award to a previously made offer in order for a Claimant to receive medical expert costs;"" nor is there a requirement that the Board accept Reed Trucking’s stipulated permanency rating.76 According to Mr. English, he received "an award for his

petition to Detennine Additional Compensation Due" and therefore, Reed

Trucking must pay his medical witness costs.77

77 Einpinyei’s opening Br. 11 (niring n/illinghnm v. Ki»nl Mnsic, lnc., 505 A.zd 34, 36(De1.

Super. Ct. 1985)).

73 ld.

74 Appellant’s Reply Br. on Appeal and Cross-Appellee’s Answering Br. l3. 75 Id.

76 oral Arg. rn ai 26_27 (Dei. Super. ci. Apn 25, 2016).

77 Appellant’s Reply Br. on Appeal and Cross-Appellee’s Answering Br. 13-14.__

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V. DISCUSSION

Two issues must be decided: (l) whether, upon granting Mr. English’s petition, the Board’s award of five percent impairment was proper; and (2) whether the Board’s grant of the petition - in an amount less than Mr. English sought and an amount less than Reed Trucking offered to settle for - was an "award" under the statute triggering the taxing of medical witness costs to the employer, Reed Trucking.

A. THE BGARD’S DETERMINATIQN oF THE EXTENT 0F MR. ENGLISH’S IMPAIRMENT ls PRoPER.

The Court’s role is limited to determining whether there was substantial evidence supporting the Board’s findings and whether the decision was legally correct.78 The Board, not the Court, is responsible for deciding which medical expert is more believable on a given point.79 The Board is entitled to accept the testimony of one medical expert over the testimony of another expert,go and the Board certainly does not err by accepting one _expert’s opinion over that of the other when the Board "set[s] forth the factual basis for its conclusion" and the

"factual findings are supported by the record."s‘ "The medical testimony of one

Johnson v. Chrjysler Corp., 213 A.2d 64, 66 (Del. 1965). Coleman v. Dep’t ofLabor, 288 A.2d 285, 287 (Del. Super. Ct. l972). Standard Dislrib. Co. v. Nally, 630 A.Zd 640, 646 (Del. 1993).

See Clements v. Diamona' State Port. Corp., 831 A.2d 870, 877 (Del. 2003). _17_

doctor, while not in agreement with that of [another], [i]s sufficient competent evidence" supporting the Board’s decision.gz

The Board heard from Dr. Rodgers and Dr. Gelman. The outcome turned on which expert’s opinion the Board credited. The Board accepted Dr. Gelman’s opinion that the proper method for determining impairment was under the AMA Guidelines, Sixth Edition and under that edition, Mr. English had an impairment rating of five percent. In its decision, the Board plainly stated that: "The Board accept[ed] Dr. Gelman’s opinion as more credible and reliable than Dr. Rodger’s [sic] opinion in this case."83

The Board determined that Dr. Gelman’s use of the Sixth Edition was appropriate in Mr. English’s case. In its decision, the Board referenced the testimony of both experts, the testimony of Mr. English, and articulated why it decided to accept Dr. Gelman’s opinion. The Board explained why it found that Dr. Rodgers’ thirteen percent rating "overstates and does not accurately reflect

[Mr. English’s] true loss of use."84 For example, the Board noted that the Sixth

Edition specifically listed the type of surgery and injury Mr. English had, while the

82 Gen. Motors Corp. v. Veasey, 371 A.Zd 1074, 1076 (Del. 1977).~ 83 IAB Dec. at l3.

84 ld.

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Fifth Edition did not.SS The Board noted other evidence supporting its conclusion, such as Mr. English’s testimony that his shoulder: "is essentially pain free;" has "stiff`ness and minor loss of motion in several planes of motion;" and does not "affect his work or activities," other than lifting heavy packages."% Accordingly, the Court is satisfied that the Board based its conclusion on factual findings that were supported by substantial evidence.

B. MR. ENGLISH Is DUE MEDICAL WITNESS CosTs.

The Board was right to tax Mr. English’s medical witness fees to Reed Trucking. But for Mr. English filing a petition for additional compensation due based on Dr. Rodgers’ report, Mr. English would not have received the five percent perrnanency award from the Board.

The process begins with the filing of a petition for compensation. Once filed, the petition may be resolved by an agreement between the parties or by an

award by the Board.87 As to this, Reed Trucking agrees.ss If the parties cannot

35 1¢1. ld.

87 see Ezlzson v. city of mlmzng¢on, 301 A.zd 303, 306 (Del. Super. ct. 1972) (“rhe statute appears to contemplate that a claim for compensation may be resolved either by agreement or by

award."). 88 Oral Arg. Tr. at 11-12 (Del. Super. Ct. Apr. 25, 2016);

C0urt:And so two things happen on a petition, as I read the statute, agreement or award. Right? Reed Trucking’s Counsel: Right.

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reach an agreement, the petition goes before the Board for a hearing. Reed Trucking argues that it is the result only of that final evidentiary process - i.e., some greater benefit coming out of the hearing than the settlement offer a claimant had walking in the hearing room door § that defines "award." Not so.

Reed Trucking’s reading of 19 Del. C. § 2322(€) is belied by two things: (l) the accepted rules of statutory construction; and (2) Delaware courts’ broad interpretation of "award" under the Workers’ Compensation statute. The language of Delaware’s Workers’ Compensation statute forecloses an employer’s suggestion that to be an "award" triggering its responsibility for medical witness costs, the result must be greater than some settlement offer (or stipulation) made prior to the IAB evidentiary hearing.

Section 2320(l0)(b) of Title 19 expressly provides that a claimant cannot receive an attorneys’ fee if the employer tenders "an offer to settle an issue pending before the Industrial Accident Board . . . in writing" that is "equal to or greater than the amount ultimately awarded by the Board."gg But the provision taxing medical witness costs to the employer against which an award is granted has

no such rejected-settlement preclusion.9° And Reed Trucking’s attempt to engraft

89 DEL. come ANN. m. 19, § zzzo(io)(b) (2015).. 90 Id. § 2322(e) ("The fees of medical witnesses testifying at hearings before the Industrial

Accident Board on behalf of an injured employee shall be taxed as a cost to the employer or the employer’s insurance carrier in the event the injured employee receives an award.").

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Because the Board relied on adequate evidence and awarded compensation to Mr. English, its decision granting Mr. English’s Oetober 2014 Petition to Determine Additional Compensation Due and also awarding him medical witness costs is hereby AFFIRMED.

II. FACTUAL AND PROCEDURAL BACKGROUND

Mr. English worked as a driver for Reed Trueking.4 On August 5, 2013, while pulling a pallet down to unload his truek, he injured his right rotator cuff.$ He notified Reed Trucking, which acknowledged his injury was compensable. Reed Trucking paid for Mr. English’s treatment and other benefits, including a right rotator cuff repair performed by orthopedic surgeon, Dr. Evan Crain, a couple of months after the work incident.é

In September 20l4, Mr. English’s expert, Dr. Rodgers, evaluated Mr. English’s right shoulder and concluded that its permanent impairment was at thirteen percent based on the Ameriean Medical Association (the "AMA") Guidelines, Fifth Edition. In January 2015, Reed Trucking had Mr. English evaluated by their expert, Dr. Gelman, who determined Mr. English’s impairment

was two percent using the AMA, Fifth Edition or five percent under the Sixth

4 Industrial Aecident Board Hearing Record at 46 (Apr. 2, 201 5) [hereinafter IAB Hrg. R.]. 5 ld. Ia’. at 48.

such - either by settlement offer or prc-hearing stipulation - to § 2322(e) and limit "award" thereunder must be rejected.

The normal rules of statutory construction provide that, in enacting a statute, the General Assembly "is presumed to have inserted every provision for some useful purpose and eonstruction, and when different terms are used in various parts of a statute it is reasonable to assume that a distinction between the terms was intended."gl And where a particular provision is expressly included in one part of a statutory seheme, but omitted from another, it is reasonable to assume that the legislature was aware of, and intended, that omission.” Thus, when the legislature expressly precludes one from obtaining an attomeys’ fee if he rejects an earlier settlement but provides no preclusion of medical witness costs, the proper reading is that pre-hearing settlement offers or evidentiary stipulations have no bearing on the taxing of the latter.

The Board has the authority to "make an award ending, diminishing, increasing or renewing the compensation previously agreed upon or

awarded . . . ."93 Generally, an "award" is "any decision or determination rendered

9‘ Gmrzcich v. Em¢roz Carp., 449 A.zd 232, 238 (Del. 1982).

92 see Ad@p¢z@n @fswanson, 623 A.zd 1095, 1097 (Dei. 1993) wiring Gzurzczch, 449 A.zd at 23 s).

DEL. CoDE ANN. tit. 19, § 2347 (2015).

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by arbitrators or commissioners upon a controversy submitted to thcm."94 A

claimant’s ability to recover medical witness fees turns on whether the Board issues an award for compensation.g$ Compensation is not limited to financial gain,

and may be "any favorable result of a Board decision," including future

permanency.% And it is not merely the hearing result (i.e., was it greater than a

pre-hearing stipulation or settlement offer), but the result of the entire petition process - from pre-filing position to Board decision - that defines "awar " for the

purpose of accessing medical witness costs.97

Willirigham v. Kral Music, Inc., 505 A.2d 34, 36 (Del. Super. Ct. l985).

95 porter v. patsy const C@., 2010 wL 153565, ar *4 (Del. Super. Ct. Jan. 14, 2010) (affirming the Board’s refusal to award medical witness fees, finding the Board’s termination of the employee’s total disability compensation was not a receipt of an award of benefit), ajj"d, 5 A.3d 631 (Del. 20l0).

96 Acme Marke¢s, ma v_ Fry, 1991 wL 22370, *4 (Del. Jan. 25, 1991) (citing Kml Muszc, 505 A.2d 34 at 36) ("Consequently, it is apparent that an award of compensation under § 2l27(a) is intended to refer to any favorable change of position or benefit, as the result of a Board decision, rather than just being limited to contemporaneous financial gain.")); Daisy'Const., 2010 WL l53565, at *4 ("In addition, the Delaware Supreme Court has stated that a claimant may receive a medical witness fee for any favorable change in position such as a determination of a compensable injury, recognition that the Board has jurisdiction over the claim, recognition of the five-year statute of limitations, or the possibility of future permanency and disfigurement benefits.") (citing Pugh v. Wal-Mart, 945 A.2d 588 (Del. 2008)).

97 See Kral Music, 505 A.2d at 36 (“As the result of appellarzts’ various petitioris, [Appellant] now has a vested right to the payment of survivor’s benefits from [employer’s workmens’ compensation carrier] . . .") (einphasis added); ia'. at 37 (distinguishing C0en v. Arribrose-Augusterfer Corp., 463 A.2d 265 (Del. 1983) where the court found there was no "award" - "the employee [in Coen] acquired no favorable change of status as the result of his petitions. In short, the employee in Coeri realized nothing . . .") (emphasis added); Coen, 463 A.2d at 268 ("because [employee] realized no benefit as a result of his petition in this case, he is not entitled to an award of attorney’s fees . . .") (emphasis added).

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In a case involving perrnanency, such as here, there are generally conflicting medical opinions. The Board, however, is not bound by the opinions of the medical experts. "lt is the function of the Board, not a physician, to attribute a percentage to a claimant’s disability."gg The Board may even "reach a rating not provided by a doctor so long as the Board explains how it reached that result."99 But again, the focus is not merely on the evidentiary hearing alone. lt is, rather, the entirety of the IAB proceeding process that must be considered in determining whether there is an "award." When the entirety of that process serves a purpose and secures a benefit for the claimant, there is an "award."w°

Mr. English filed a petition to determine additional compensation due. The Industrial Accident Board proceeding thereon served a purpose and secured him a benefit. The purpose was to obtain compensation in addition to the benefits which Mr. English had received previously from Reed Trucking. The parties did not

reach an agreement on how to resolve that petition, so they went before the Board

for a hearing. Although Reed Trucking stipulated that Mr. English was five

98 Asplundh Tree Expert Co. v. Clark, 369 A.2d 1084 (Del. Super. Ct. 1975); Eanes v. Peninsula Unitea' Methodist Homes, 1988 WL 77728 at *5 (Del. Super. Ct. July l, l988) ("It is the function of the IAB, not the physician, to determine the claimant’s impairment.").

99 Perdue Farms, ma v. Dawson, 1993 wL 80624, ar *2 (Del. Super. Ct. Mar. 10, 1993) (citing Asplundh Tree Expert, 369 A.2d l089).

‘°° lo»alMuszc, Inc. v. Wzllzngham, 1986 wL16470,ac*1 (De1.i\/1ar.4, 1986) (in afnnning

there was an "award," the Court noted "[h]ere . . . the Industrial Accident Board proceeding served a purpose and secured a benefit for claimant").

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percent impaired, the Board was not required to award him at least five pcreent. Nonetheless, based on the April 2, 2015 hearing, the Board determined Mr. English met his burden of proof "that his right upper extremity has resulted in a

"101 and awarded him five percent impairrnent. Thus, Mr.-

perrnanent impairment English benefited from the filing of his petition by establishing his right to additional compensation due. That was the net result of his petition and the IAB proceedings; and that is what defines an "award" for § 2322(e) purposes.m The fact that Mr. English may have obtained that net benefit by abbreviating the IAB proceedings on his petition via pre-hearing settlement or stipulation does strip that net result of its true statutory eharaeter: an "award" received by an injured

employee. Aecordingly, the Board correctly taxed Reed Trucking with Mr.

English’s medical witness costs under § 2322(@).

101 IAB Dee. at l3.

See n. 97 supra.

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Vl. CON CLUSION

For the forgoing reasons, the decision of the Industria1 Accident Board granting Kenneth English’s October 2014 Petition to Detennine Additional

Compensation Due and awarding him medical witness costs is hereby

AFFIRMED. IT IS SO ORDERED. g Paul R. Wallace, Judge Original to Prothonotary

cc: All counsel via File & Serve

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Edition. Bascd on this, Reed Trucking stipulated to the greater of their own expert’s findings, i.e., that Mr. English was five percent impaired. A. MR. ENGLISH’S PETITIQN FoR ADI)ITIQNAL CQMPENSATIoN DUE.

Reed Trucking had paid for certain treatment and paid other workers’ compensation benefits related to Mr. English’s August 2013 injury. Nonetheless, based on Dr. Rodgers’ reeommendation, Mr. English, through counsel, filed a Petition to Determine Additional Compensation Due in Oetober 2014. About a month prior to the hearing date, Reed Trucking made a settlement offer of eight percent. Mr. English rejected that offer.

On April 2, 2015, a hearing officer and two Board members held an administrative hearing to determine Mr. English’s permanent impairment to his right upper extremity.7 The Board issued a decision granting the petition for additional compensation and ordering Reed Trucking to reimburse Mr. English’s

medical witness costs. Mr. English filed a timely appeal;g Reed Trucking cross-

appealed.

7 IAB Dee. at 2;

8 ld. ar 12-14.

DEL. CoDE ANN. tit. 19, § 2349 (2015).

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B. THE HEARING oN MR. ENGLISH’S PETITIoN FoR ADI)ITIQNAL CoMPENsATroN DUE.

1. Mr. English’s Testim0ny Mr. English testified on his own behalf. He denied having prior injuries to

10 Mr. English testified that surgery helped with his right

either of his shoulders. shoulder pain and that he only has stiffness and limited range of motion now." He also testified he is back to work at this time as a freight driver for UPS; that job does not require him to lift heavy packages.lz He has had no subsequent injury to either shoulder.B

2. Mr. English’s Medical Expert

Dr. Rodgers testified that he is board certified in occupational medicine.m During his September 2014 examination, Mr. English complained of a stiff

shoulder, limited range of motion, and difficulty throwing, reaching, and rotating.l$

Dr. Rodgers reviewed Mr. English’s history and medical records.lé He also

‘° 1AB Hrg. R. at 46. ll rd. at 43.

12 Id. acsl, 53.

13 1a @149. 14 Ia'. at 6. 15 Id. ar 13.

‘° rd. ar 8-13.

thoroughly examined Mr. English, measuring his internal and external rotation." During his testimony, Dr. Rodgers also demonstrated to the Board how he examined Mr. English’s left shoulder.lg

Dr. Rodgers testified that he used the AMA Guidelines, Fifth Edition, to rate Mr. English’s impair“rnent.lg Dr. Rodgers agreed that the use of the AMA Guidelines is important because these Guidelines provide "the only standard that exists out there. . . . for calculating impairments."z° Dr. Rodgers said he chose to use the Fifth Edition because the Sixth Edition "is still a work in progress" and the "diagnosis based estimate method in there is very difficult to use."zl When later responding to the Board’s questions, Dr. Rodgers revealed that the Sixth Edition has been around since 2008 and that he was a contributor to the casebook for the Guidelines.zz

Based on Mr. English’s history, medical records, and physical examination,

Dr. Rodgers concluded that Mr. English’s impairment rating was thirteen percent

" Id. ar 15_16_.

18 1a ar 17-18._

‘9 ld. ar 26. 20 ld. 21 ld. at 23a

22 1¢1_ ar42413.

using rha AMA Gaid¢irn¢a, Frfrh Ediriaa.” Dr. Rodgers raarirrad rhar under rha Fifth Edition, unlike the Sixth, values are combined for determining upper

24 The first value used is based on range of motion and the

extremity impairment. second value is for other conditions, such as surgery.z$ Accordingly, Dr. Rodgers rated Mr. English’s range of motion impairment as three percent and, using his clinical judgment, Dr. Rodgers compared measurable impairment results from analogous conditions listed in the Guidelines with that of Mr. English’s unlisted condition and arrived at a rating of ten percent for the second value.%

Dr. Rodgers acknowledged that some people can have a greater or lesser range of motion - without injury - compared to the AMA Guidelines’ "normal" range of motion.” Dr. Rodgers also acknowledged that, although not required, the Fifth Edition suggests that the baseline for a non-injured shoulder be subtracted

when determining permanency.z$ And so, Dr. Rodgers testified that what Dr.

Gelman did - compare the uninjured shoulder to the injured shoulder -

23 1a'. ar 16. 24 1¢1. ar 20. 25 1a'. ar 20-22. 26 1a1. ar 21_22. 22 1d. ar 36.

28 1a ar 23_

corresponds with thc AMA, Fifth Edition.29 Unlikc Dr. Gelman, Dr. Rodgcrs found no impairment or restriction in Mr. English’s left shoulder.30

3. Reed Trucking’s Medical Expert

Dr. Gelman, a board certified orthopedic surgeon, testified by deposition.m He examined Mr. English in January of 2015.32 Mr. English’s primary complaint

33 Dr. Gelman

was stiffness and a lack of range of motion in his right shoulder. examined Mr. English’s neck and both upper extremities.“ He measured both shoulders’ range of motion.” Dr. Gelman testified that to determine permanent impairment, he looked at Mr. English’s symptoms through both the Fifth and Sixth Editions of the AMA Guidelines.

Dr. Gelman testified that according to the AMA Guidelines, his "role would

be to identify what factors or parameters would best apply with regards to

addressing impairment."% Using the Fifth Edition, he "determined that the range

33 14. ar 36-37. 3° za'. ar 17-19, 40.

31 Dr. Gelman Dep. Tr. at 5.

33 ld. ar 7, 33 Ia'. at 9. 33 ld. ar 10.

33 ld. ar 10_11.,

36 Id. at 16,

of motion methodology would be the best and most appropriate method to rate Mr. English."” For Mr. English’s left shoulder - the uninjured shoulder - based on the numbers calculated for forward llexion, abduction, rotation, extension, and adduetion, Dr. Gelman determined Mr. English would have a permanency of eight percent under the AMA Guidelines, Fifth Edition.zg Dr. Gelman testified that he then "took the ranges of motion [of Mr. English’s right side that he had computed and] compared that to his baseline normal left side, [whieh] yields a two percent upper extremity impairment."”

Dr. Gelman also determined Mr. English’s impairment under the AMA, Sixth Edition."o Dr. Gelman opined that the Sixth Edition more appropriately addresses Mr. English’s case, as the Sixth Edition is "more of a diagnosis-based method versus a range of motion method."‘" Although more complieated, the

Sixth Edition "methodology would take into consideration the dominating factor or

pathology."" Dr. Gelman testified he considered the rotator cuff pathology which

37 Id.

38 1a ar 11. 39 ld. ar 16. "° 1a ar 13. "‘ 1¢1. ar 19.

42 Id. ar 19-20.

was the dominating pathology addressed by Dr. Crain surgically.4 Dr. Gelman’s

Sixth Edition assessment yielded an impairment of five percent.44

Dr. Gelman agreed that Dr. Rodgers rated his assessments using the AMA Guidelines, Fifth Edition.45 But Dr. Gelman testified that he could not explain why or how he disagreed with Dr. Rodgers’ thirteen percent impairment rating because it was unclear to him from Dr. Rodgers’ report what method Dr. Rodgers used to

6 Dr. Gelman explained, however, that using Dr.

reach his impairment rating.4 Rodgers’ range of motion numbers "would equate to [a] three percent" impairment rating under the Fifth Edition.47 That is so, because Dr. Rodgers’ ranges of motion were generally better than those taken by Dr. Gelman four months later.48

4. The Board’s Decision

In its April 27, 2015 decision, the Board granted Mr. English’s Petition, but found he suffered a five percent permanent impairment to his right shoulder in

accordance with Dr. Gelman’s findings.4 The Board recounted the Petition’s

43 1a. ar 19._ 44 1a ar 18. 45 1a. ar 26.

46 1a. ar 26-27. 47 1a ar 27. 48 1a ar 25.-

49 IAB Da¢. ar 14. _10_