Jason v. State

• Court: Superior Court of Delaware
• Decided: March 13, 2023
• Docket: N22A-06-004 VLM
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TY JASON, ) ) Appellant/Employee-Below, ) ) v. ) C.A. No. N22A-06-004 VLM ) STATE OF DELAWARE, ) ) Appellee/Employer-Below. ) ) )

ORDER

Submitted: December 6, 2022 Decided: March 13, 2023

Upon Consideration of Appellant’s Appeal of the Decision of the Industrial Accident Board, AFFIRMED.

Andrew Carmine, Esquire, Elzufon Austin & Mondell, Wilmington, DE. Attorney for Appellant Ty Jason.

Keri L. Morris-Johnston, Esquire, Marshall Dennehey Warner Coleman & Goggin, Wilmington, DE. Attorney for Appellee, the State of Delaware.

MEDINILLA, J. I. INTRODUCTION

Claimant-Appellant Ty Jason (“Claimant”) challenges the decision of the

Industrial Accident Board (the “Board”) that denied, in part, his petition for worker’s

compensation benefits. Claimant argues the Board erred in accepting Employer’s

expert opinion that relied on a lack of medical treatment where the lack of said

treatment was due to Employer’s failure to report Claimant’s injury. Upon

consideration of the arguments, submissions of the parties, and the record in this

case, the Board’s decision must be AFFIRMED.

II. FACTUAL AND PROCEDURAL HISTORY 1

1. On April 7, 2014, Claimant was injured while working for the State of

Delaware (“Employer”) after he fell from a stool when shredding confidential

documents.2 He immediately made a telephone call to his supervisor to notify him

of his fall.3 Two days later, Claimant also emailed the supervisor stating he caught

himself with his left hand when he fell to the ground, 4 and “was okay.”5

2. That same month, Claimant also emailed his supervisor to obtain a

workers’ compensation claim number.6 In that email, Claimant, used the singular

1 The recitation of the facts is based upon the submission of the parties, including the transcript from the IAB hearing on May 20, 2022. 2 Industrial Accident Board’s Transcript, at 15 [hereinafter IAB Transcript]. 3 Id. at 17–18. 4 Id. at 77. 5 Id. at 20–21. 6 Id. at 23, 77. 2 form of the word “hand” and “shoulder,” and indicated that he “[c]aught [himself]

with [his] hand. And it made [his] shoulder feel weird.”7 After being instructed by

his supervisor to report the accident to his manager, he was provided with a formal

injury report form in May 2014. 8 In his communication with the manager, Claimant

again used a singular form of the word “hand” and “shoulder.” 9 He claims he

completed the form and submitted it as instructed.10 The Employer did not report a

claim to the workers’ compensation carrier, nor did Claimant receive any

communication from Employer about his submission.11

3. Medically, within three weeks of the fall, Claimant saw Dr. Doug

Palma, an orthopedic surgeon, for pain in his shoulders and neck. 12 Dr. Palma

ordered two MRIs, but only one was conducted because Claimant was told by his

health insurance carrier that he would be responsible for payment as this was a work-

related injury. 13 Therefore, he underwent an MRI of only the left shoulder in August

2014. 14 Dr. Palma opined that Claimant had suffered both cervical and left shoulder

7 Id. 8 Id. at 25–26. 9 Id. at 26–27; 80–81. 10 Id. at 28. 11 Id. at 28, 80. 12 Id. at 22. 13 Id. at 28–30. 14 Id. at 28–30, 80–84. Claimant did not testify whether the other MRI was concerning his right shoulder or cervical spine. See Id. Although Claimant claims in his appellate brief that Dr. Palma ordered MRIs of both Claimant’s left and right shoulders, neither the Transcript nor Dr. Eskander deposition states so. Compare Appellant’s Opening Brief (citing Transcript, at 28; Eskander, at 10), with IAB Transcript, and Dr. Eskander’s Deposition, at 10 (stating that Dr. Palma ordered “MRIs of both areas, the cervical spine and the [left] shoulder.”). 3 injuries from the fall. 15

4. In February 2015, Claimant visited another spine specialist, Dr. Adam

Ginsberg.16 Claimant did not reference the 2014 work accident in his intake form.17

For one month, Claimant received physical therapy for both shoulders on Dr.

Ginsberg’s referral. 18 Claimant’s health insurance denied coverage for this

treatment because—according to Claimant—the treatment was for a work-related

injury.19 Claimant stopped physical therapy for fear of the financial responsibility

of out-of-pocket payments.20 As it turns out, Claimant did not have to reimburse the

health insurance carrier, nor was he required to make out-of-pocket payments for

treatment he received in 2014 and 2015.21

5. In September of 2019, Claimant continued to visit his primary care

physician. 22 He reported he was running every other day and alternating his physical

activity with bike riding.23 He also continued to work and treat with Aleve when he

experienced intermittent pain in the neck and shoulder.24 In that same year, he

15 IAB Transcript, at 78–79 (“The Impression . . . was ‘cervical degenerative disc disease as well as left shoulder plank . . . .’”) (emphasis added). 16 Id. at 93. 17 Id. at 93–94. 18 Id. at 30–31, 33, 94. 19 Id. at 30–31, 33. 20 Id. at 30–31, 33. 21 Id. at 87–88. 22 Id. at 119. 23 Id. at 38, 89 24 Id. at 40–41, 109. 4 returned to Dr. Palma due to numbness in his arms and hands that affected his ability

to perform some tasks at work.25

6. In 2019, Claimant emailed Employer’s human relations department and

provided a full explanation with respect to his 2014 work accident, including his

2014 communications with his supervisor and manager, and the completion of an

injury report form in 2014. 26 Claimant testified he was instructed to change the date

to 2019 in a new injury report form. 27 In 2019, Employer denied the claim based on

the expiration of the two-year statute of limitations. 28 Employer has since waived

its statute of limitations defense. 29

7. Despite the denial of both health insurance and worker’s compensation

benefits, Claimant underwent multiple surgeries to include bilateral carpal tunnel

releases, bilateral shoulder surgeries, and a neck surgery. 30 He continued with

physical therapy and made out-of-pocket payments in 2020 and 2021. 31

8. On October 22, 2021, Claimant filed a Petition for Compensation Due

petition seeking a determination of compensability related to Claimants’ bilateral

wrists, shoulders, and cervical spine, as well as the payment of medical expenses

25 Id. at 44–45. 26 Id. at 47–48. 27 Id. at 49–51. 28 Id. at 54–57. 29 Appellant’s Opening Brief, at 1. 30 IAB Transcript, at 61–63, 100. 31 Id. 5 and periods of temporary total disability benefits.32

9. On May 20, 2022, the Board conducted a hearing on Claimant’s

petition. In addition to testimony from Claimant, the Board also considered the

opposing opinions of the expert witnesses, Drs. Mark Eskander, on behalf of

Claimant and Andrew Gelman, on behalf of Employer.

10. Dr. Eskander opined that Claimant reported that he fell forward with

his arms out to brace himself, and a chain of kinetic energy went up through the

upper part of his body. 33 Thus, Dr. Eskander opined that all the injuries related to

Claimant’s bilateral wrists, bilateral shoulders, and neck were causally related to the

2014 work accident,34 and that the medical treatment to address his injuries had been

reasonable. 35 On cross-examination, the doctor conceded that he relied on the

history provided by Claimant, who reported he had fallen on both hands. 36 He

testified that if Claimant had instead fallen only on his left hand, he would have

opined that the left shoulder injury was caused by the work accident while the right

shoulder symptoms were more likely due to a degenerative mechanism. 37

11. Employer’s expert, Dr. Gelman, opined that Claimant strained or

32 Industrial Accident Board’s Decision, at 2 [hereinafter IAB Decision]. The parties stipulated to resolve once a determination is made as to which injuries may be compensable. Id. The Employer did not challenge the claim on a statute of limitations defense. See Joint Stipulation of Facts. 33 IAB Transcript, at 132. 34 Id. at 131–32. 35 Id. at 134. 36 Id. at 156. 37 Id. 6 sprained his left shoulder and neck from the work accident, and only the treatment

related to the left shoulder and neck through early spring of 2015 was causally

related to the accident. 38 He further opined that Claimant’s right shoulder injury or

carpal tunnel injuries were not related to the work accident. 39 Dr. Gelman explained

that Claimant had very little treatment substantiating the causal nexus between the

surgeries for both shoulders and neck, and the left shoulder MRI showed a

progression attributable to nature,40 (i.e., degenerative and not work-related). Dr.

Gelman also acknowledged that he had reviewed some correspondence related to

Claimant’s inability to obtain treatment due to insurance issues.41

12. On May 31, 2022, the Board granted, in part, and denied, in part,

Appellant’s Petition. 42 The Board, in relevant part, found that Claimant met his

burden of proof by a preponderance of evidence that (1) he suffered a work accident

while employed with the State of Delaware, (2) the accident resulted in a left

shoulder rotator cuff tear, and (3) the accident resulted in strain/sprain injury to the

neck, which resolved by mid-2015.43 The Board denied his claims related to his

bilateral carpal tunnel and right shoulder injuries. 44

38 Dr. Gelman’s Deposition, at 31–33, 45. 39 IAB Transcript, at 170–72. 40 Id. at 159–72. 41 Dr. Gelman’s Deposition, at 49–50. 42 IAB Decision, at 25–30. 43 Id. at 24–28. 44 IAB Decision, at 25. 7 III. PARTIES’ CONTENTIONS

13. Claimant does not challenge the Board’s partial ruling in his favor. He

argues that the Board erred when it ruled against him and found that (1) the treatment

for cervical strain/sprain after mid-2015 was not related to his fall during his work

in 2014; and that (2) the 2014 work accident did not result in an injury to his neck,

right shoulder, and hands. 45 He contends this determination was based on

insubstantial evidence; the Employer’s expert relied on a lack of medical treatment

and ignored the fact that Claimant was prevented from treating due to Employer’s

failure to report the accident.46

14. Employer maintains that the Board’s decision is free from legal error

and supported by substantial evidence when it found that Claimant only sustained

work injuries related to the left shoulder and the cervical spine that resolved in the

spring of 2015.47

IV. STANDARD OF REVIEW

15. On appeal from the Board, this Court’s role is to determine whether

substantial evidence exists to support the Board’s decision, and to examine the

Board’s findings and conclusions for legal error.48 The parties do not raise any legal

45 Claimant’s Opening Brief, at 15–20. 46 Id. 47 Employer’s Answering Brief, at 11–14. 48 Harasika v. State, 2013 WL 1411233, at *3 (Del. Super. Feb. 28, 2013). 8 issues in this appeal. Thus, the only issue in this appeal is whether substantial

evidence supports the Board’s findings. Substantial evidence is such relevant

evidence as “a reasonable person might accept as adequate to support a

conclusion.” 49

V. DISCUSSION

16. This case involves credibility determinations of what boils down to the

battle of the experts. Accordingly, this Court does not “weigh the evidence,

determine questions of credibility, and make its own factual findings and

conclusions.”50 The Board exclusively holds those functions,51 and this Court “must

uphold the decision of the Board unless the Court finds that the Board’s decision

‘exceeds the bounds of reason given the circumstances.’” 52

17. Citing to DiSabatino Bros. v. Wortman, both parties correctly note that

the Board is free to choose one medical expert opinion over the other. 53

DiSabatino’s holding also allows the Board to accept “[the expert’s] testimony, as

enhanced by the employer’s other medical testimony and by their evaluation of the

49 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981); see Perdue Farms, Inc. v. Atkinson, 2019 WL 7373397, at *2 (Del. Super. Dec. 30, 2019). 50 Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965); see Christiana Care Health Servs. v. Davis, 127 A.3d 391, 394 (Del. 2015). 51 Noel-Liszkiewicz v. La-Z-Boy, 68 A.3d 188, 191 (Del. 2013) (citations omitted). 52 Elzufon v. Lewis, 2023 WL 152235, at *4 (Del. Super. Jan 10, 2023) (citations omitted). 53 Claimant’s Opening Brief, at 16 (citing DiSabatino Bros. v. Wortman, 453 A.2d 102, 106 (Del. 1982)); Employer’s Answering Brief, at 11 (citing DiSabatino Bros., 453 A.2d at 106). 9 claimant’s credibility. As the triers of fact, they were entitled to do just that.” 54 This

Board did the same. And offered a full explanation of why it accepted and rejected

the respective medical opinions.

18. Notably, the Board did not accept Employer’s expert opinion in toto.

In fact, the Board found in favor of Claimant as to his left shoulder injury. In this

determination, the Board rejected the Employer’s expert opinion that Claimant only

strained or sprained his left shoulder. 55 Instead, the Board accepted the opinion of

Claimant’s expert that Claimant’s subjective complaints, coupled with the

diagnostic evidence of the left shoulder MRI, established that the left shoulder injury

was causally related to the 2014 work accident, and it deemed the corresponding

treatment to be reasonable.56

19. Conversely, as to its determination of Claimant’s cervical injury, the

Board did accept Employer’s expert’s opinion that Claimant suffered “some injury”

to his neck because of the work accident but that this injury had resolved by mid-

2015. 57 Here, Claimant takes issue with Dr. Gelman’s reliance on the absence of

medical treatment between 2015 and 2019 to opine that the neck injury had resolved.

Citing to the broad holding in McCracken v. Lewis, 58 he proposes that the Board’s

54 DiSabatino Bros., 453 A.2d at 106. 55 IAB Decision, at 26–27. 56 Id. 57 Id. at 27–28. 58 McCracken v. Wilson Beverage, 1992 WL 301985 (Del. Super. Oct. 15, 1992). 10 determination was based on insubstantial evidence, namely that Dr. Gelman relied

on a lack of medical treatment and ignored the fact that insurance issues caused by

Employer’s failure to report the accident prevented access to said treatment.59

20. It is true that McCracken held that substantial evidence did not exist to

support that Board’s decision in favor of that employer. 60 “If an expert witness

chooses to ignore a person’s central and medically documented symptoms in

reaching his or her opinion without any substantial reason for ignoring such

symptoms, the opinion is necessarily insubstantial.”61 But here, McCracken is not

applicable as there is no evidence that the Employer’s expert ignored Claimant’s

symptoms in reaching his opinion. He further acknowledged some awareness

regarding Claimant’s insurance issues.

21. Moreover, the Board did not accept Dr. Gelman’s opinion in a vacuum.

It properly evaluated both Claimant’s credibility and corresponding medical records.

It rejected Claimant’s testimony that he did not treat his neck after mid-2015 because

of insurance issues. Instead, the Board focused on the fact that Claimant did not

report neck pain after mid-2015 to his primary care physician.62

22. The Board’s denial of the bilateral carpal tunnel and right shoulder

59 Claimant’s Opening Brief, at 16. 60 McCracken, 1992 WL 301985 at 7. 61 Id. at 6 (emphasis added). 62 IAB Decision, at 28. 11 injuries is also based on substantial evidence—Claimant’s reporting and his expert’s

opinion. As to the former, Claimant self-reported in 2014 that he fell only on his

left hand; references involving both hands were made only in later reports. 63 The

Board noted that his medical records close in time to the work accident focused

almost entirely on his left shoulder and neck.64 As to the latter, the Board further

found that even Claimant’s medical expert acknowledged on cross-examination that

if the mechanism of injury involved only the left hand, the alleged injuries to the

right side would not be related to the work accident.65 This opinion is consistent

with Employer’s expert that the right-sided injuries were degenerative in nature.

23. Accordingly, there was substantial evidence in the record for the Board

to accept Claimant’s expert opinion as to the left shoulder injuries and Employer’s

expert opinion as to the neck, bilateral carpal tunnel, and right shoulder injuries. The

Board did not err. It considered evidence from both experts and chose to accept and

reject, in part, their respective opinions. It was within its province to do so. For

these reasons, the Board’s Decision is AFFIRMED.

/s/Vivian L. Medinilla Vivian L. Medinilla Judge

63 Id. at 25. 64 Id. 65 Id. at 25–26. 12