IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
) ) REGINALD MURPHY, ) ) Appellant ) ) C.A. No. N18A-06-003 CLS v. ) ) DELAWARE TRANSIT CORP., ) ) Appellee. ) ) )
Date Submitted: December 31, 2018 Date Decided: February 4, 2019
Upon Consideration of Appellant’s Appeal from the Industrial Accident Board. AFFIRMED
A. Dale Bowers, Esquire, Law Office of A. Dale Bowers, P.A., 203 N. Maryland Avenue, Wilmington, Delaware, 19804. Attorney for Appellant.
John J. Klusman, Esquire, Tybout Redfearn & Pell, 750 Shipyard Drive, Suite 400, Wilmington, Delaware, 19801. Attorney for Appellee.
Scott, J. Background
On January 2, 2017, Reginald Murphy sustained an injury to his cervical spine
and right shoulder due to a work accident. For this injury, Murphy received total
disability benefits based on his average weekly wage at the time of the work
accident. On September 5, 2017, Murphy filed a petition with the Industrial Accident
Board for additional compensation due alleging he sustained a brachial plexus injury
at the time of the accident. Murphy’s employer, Delaware Transit Corp., disputes
the compensability of this injury and related medical expenses as to causation. On
May 14, 2018, The Board denied Murphy’s petition. Before the Court is Murphy’s
appeal from that decision.
The Board’s Finding of Fact
The Board determined that Murphy failed to meet his burden of proof to
support the finding for any compensable brachial plexus injury related to Murphy’s
January 2017 accident.
The Board found the opinion of Dr. Tadduni, the Defense medical expert, to
be more convincing than that of Murphy’s treating chiropractor. The Board agreed
with the Defense medical expert that Murphy’s subjective complaints did not
comport with the objective findings of two clinical examinations. Dr. Tadduni
performed two defense medical examinations of Murphy in May and November
2017. Dr. Tadduni found that Murphy’s subjective complaints did not comport with the objective findings of the examination. Dr. Tadduni believed that Murphy’s injury
caused a strain of his bicep at or near the elbow.
Following his second examination of Murphy, and upon review of an EMG
study performed by another doctor, Dr. Tadduni’s opinion remained that objective
examination results did not support the diagnosis of a brachial plexus injury. Dr.
Tadduni opined that EMG studies have a subjective aspect as to how the test is
performed, and that standing alone, the results will not be diagnostic of the injury
complained.
The Board determined that the video showing the incident causing injury did
not show the type of traumatic, abnormal movement which would typically cause a
brachial plexus injury.1 The Board noted that typical brachial plexus injuries are
caused when the head or shoulder go in one direction and the arm in the other
direction. The Board noted that the video evidence showed Murphy using his arm
after the incident, taking notes, fastening his seatbelt, and dislodging something from
the side of the bus.
The Board did not find the causation opinion of Dr. DiCola to be convincing
as to any brachial plexus injury related to the January 2017 accident. The Board also
determined Dr. DiCola’s testimony to be inconsistent. Dr. DiCola treated Murphy
1 Murphy v. Delaware Transit Corp., IAB Hearing No. 1451879 (May 14, 2018), at 11, 12. from January 2017 to September 2017 for his work injury. This treatment included
75 visits, treating a cervical disk problem and glenohumeral shoulder compromise.
Only after an EMG study several months after treatment began did Dr. DiCola
diagnose the brachial plexus injury, opining such an injury could result from any
trauma or injury to the lower cervical spine roots. This opinion was inconsistent
with the Defense medical expert. The Board noted that Dr. DiCola did not change
Murphy’s chiropractic treatment after the EMG study, eventually discharging
Murphy from his care “for the work injury.”2
Additionally, the Board did not find Murphy’s own testimony to be wholly
reliable to support his claimed brachial plexus injury related to the January 2017
injury. The Board noted Murphy’s complaints of worsening pain were based on
diffuse and multiple subjective complaints.3 The Board relied on Murphy’s lack of
credibility in discounting the testimony of Dr. DiCola, as a physician’s diagnosis
and opinion are based on the veracity of a claimant’s complaints.4
Standard of Review
On appeal from the Industrial Accident Board this Court does not sit as a trier
of fact with authority to weigh evidence, determine credibility, and make its own
2 Murphy v. Delaware Transit Corp., at 13. 3 Id. at 14. 4 Id. factual findings and conclusions.5 The Court’s role is limited to determining whether
the IAB’s conclusions are supported by substantial evidence and free from legal
error.6 Substantial evidence is “such reasonable evidence as a reasonable mind might
accept as adequate to support a conclusion.”7 When factual determinations are at
issue, the Court will take into account the experience and specialized competence of
the Board, and limit its review to a determination of whether the Board’s decision is
supported by substantial evidence.8
Analysis
In this case the Board has supported its decision with substantial evidence,
and that decision is free from legal error. The Board determined that Murphy failed
to meet his burden of proof that a brachial plexus injury accompanied the January,
2017 work injury.
In cases where there is a substantial amount of medical evidence and the
experts disagree, the need for clearly articulated findings is crucial, as it is the
Board's function to resolve conflicts in the evidence presented.9 When the Board’s
5 Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965). 6 Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007). 7 Roos Foods v. Guardado, 2016 WL 6958703, at *3 (Del. 2016); Olney v. Cooch, 42 A.2d 610, 614 (Del. 1981). 8 29 Del. C. § 10142 (d), see also Lopez v. Parkview Nursing Home, 2011 WL 900674, at *3 (Del. Super. Ct. 2015). 9 Carey v. H & H Maint., Inc., 2001 WL 985114, at *2 (Del. Super. Ct. 2001), aff'd, 792 A.2d 188 (Del. 2002). decision rests solely on the persuasiveness of deposition testimony, and not specific
findings of fact, there is an insufficient foundation for appellate review.10
In its May 14, 2018 decision, the Board specified that it found the testimony
of Dr. Tadduni more convincing than that of Dr. DiCola. The Board articulated the
evidence it relied upon to reach its decision, addressing conflicts in the witnesses’
testimony as necessary. The Board found that Dr. Tadduni’s examinations of the
Claimant did not yield an objective diagnosis of a brachial plexus injury, despite the
Claimant’s subjective complaint otherwise. The Board found that as of Dr.
Tadduni’s first medical exam in May 2017, objective testing did not support the
diagnosis of a brachial plexus injury. At that time Dr. Tadduni believed that the work
injury caused a strain of the biceps at or near the elbow.11
Dr. Tadduni’s opinion after his second examination in November 2017, was
consistent with his initial opinion; the objective results of the examination did not
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
) ) REGINALD MURPHY, ) ) Appellant ) ) C.A. No. N18A-06-003 CLS v. ) ) DELAWARE TRANSIT CORP., ) ) Appellee. ) ) )
Date Submitted: December 31, 2018 Date Decided: February 4, 2019
Upon Consideration of Appellant’s Appeal from the Industrial Accident Board. AFFIRMED
A. Dale Bowers, Esquire, Law Office of A. Dale Bowers, P.A., 203 N. Maryland Avenue, Wilmington, Delaware, 19804. Attorney for Appellant.
John J. Klusman, Esquire, Tybout Redfearn & Pell, 750 Shipyard Drive, Suite 400, Wilmington, Delaware, 19801. Attorney for Appellee.
Scott, J. Background
On January 2, 2017, Reginald Murphy sustained an injury to his cervical spine
and right shoulder due to a work accident. For this injury, Murphy received total
disability benefits based on his average weekly wage at the time of the work
accident. On September 5, 2017, Murphy filed a petition with the Industrial Accident
Board for additional compensation due alleging he sustained a brachial plexus injury
at the time of the accident. Murphy’s employer, Delaware Transit Corp., disputes
the compensability of this injury and related medical expenses as to causation. On
May 14, 2018, The Board denied Murphy’s petition. Before the Court is Murphy’s
appeal from that decision.
The Board’s Finding of Fact
The Board determined that Murphy failed to meet his burden of proof to
support the finding for any compensable brachial plexus injury related to Murphy’s
January 2017 accident.
The Board found the opinion of Dr. Tadduni, the Defense medical expert, to
be more convincing than that of Murphy’s treating chiropractor. The Board agreed
with the Defense medical expert that Murphy’s subjective complaints did not
comport with the objective findings of two clinical examinations. Dr. Tadduni
performed two defense medical examinations of Murphy in May and November
2017. Dr. Tadduni found that Murphy’s subjective complaints did not comport with the objective findings of the examination. Dr. Tadduni believed that Murphy’s injury
caused a strain of his bicep at or near the elbow.
Following his second examination of Murphy, and upon review of an EMG
study performed by another doctor, Dr. Tadduni’s opinion remained that objective
examination results did not support the diagnosis of a brachial plexus injury. Dr.
Tadduni opined that EMG studies have a subjective aspect as to how the test is
performed, and that standing alone, the results will not be diagnostic of the injury
complained.
The Board determined that the video showing the incident causing injury did
not show the type of traumatic, abnormal movement which would typically cause a
brachial plexus injury.1 The Board noted that typical brachial plexus injuries are
caused when the head or shoulder go in one direction and the arm in the other
direction. The Board noted that the video evidence showed Murphy using his arm
after the incident, taking notes, fastening his seatbelt, and dislodging something from
the side of the bus.
The Board did not find the causation opinion of Dr. DiCola to be convincing
as to any brachial plexus injury related to the January 2017 accident. The Board also
determined Dr. DiCola’s testimony to be inconsistent. Dr. DiCola treated Murphy
1 Murphy v. Delaware Transit Corp., IAB Hearing No. 1451879 (May 14, 2018), at 11, 12. from January 2017 to September 2017 for his work injury. This treatment included
75 visits, treating a cervical disk problem and glenohumeral shoulder compromise.
Only after an EMG study several months after treatment began did Dr. DiCola
diagnose the brachial plexus injury, opining such an injury could result from any
trauma or injury to the lower cervical spine roots. This opinion was inconsistent
with the Defense medical expert. The Board noted that Dr. DiCola did not change
Murphy’s chiropractic treatment after the EMG study, eventually discharging
Murphy from his care “for the work injury.”2
Additionally, the Board did not find Murphy’s own testimony to be wholly
reliable to support his claimed brachial plexus injury related to the January 2017
injury. The Board noted Murphy’s complaints of worsening pain were based on
diffuse and multiple subjective complaints.3 The Board relied on Murphy’s lack of
credibility in discounting the testimony of Dr. DiCola, as a physician’s diagnosis
and opinion are based on the veracity of a claimant’s complaints.4
Standard of Review
On appeal from the Industrial Accident Board this Court does not sit as a trier
of fact with authority to weigh evidence, determine credibility, and make its own
2 Murphy v. Delaware Transit Corp., at 13. 3 Id. at 14. 4 Id. factual findings and conclusions.5 The Court’s role is limited to determining whether
the IAB’s conclusions are supported by substantial evidence and free from legal
error.6 Substantial evidence is “such reasonable evidence as a reasonable mind might
accept as adequate to support a conclusion.”7 When factual determinations are at
issue, the Court will take into account the experience and specialized competence of
the Board, and limit its review to a determination of whether the Board’s decision is
supported by substantial evidence.8
Analysis
In this case the Board has supported its decision with substantial evidence,
and that decision is free from legal error. The Board determined that Murphy failed
to meet his burden of proof that a brachial plexus injury accompanied the January,
2017 work injury.
In cases where there is a substantial amount of medical evidence and the
experts disagree, the need for clearly articulated findings is crucial, as it is the
Board's function to resolve conflicts in the evidence presented.9 When the Board’s
5 Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965). 6 Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007). 7 Roos Foods v. Guardado, 2016 WL 6958703, at *3 (Del. 2016); Olney v. Cooch, 42 A.2d 610, 614 (Del. 1981). 8 29 Del. C. § 10142 (d), see also Lopez v. Parkview Nursing Home, 2011 WL 900674, at *3 (Del. Super. Ct. 2015). 9 Carey v. H & H Maint., Inc., 2001 WL 985114, at *2 (Del. Super. Ct. 2001), aff'd, 792 A.2d 188 (Del. 2002). decision rests solely on the persuasiveness of deposition testimony, and not specific
findings of fact, there is an insufficient foundation for appellate review.10
In its May 14, 2018 decision, the Board specified that it found the testimony
of Dr. Tadduni more convincing than that of Dr. DiCola. The Board articulated the
evidence it relied upon to reach its decision, addressing conflicts in the witnesses’
testimony as necessary. The Board found that Dr. Tadduni’s examinations of the
Claimant did not yield an objective diagnosis of a brachial plexus injury, despite the
Claimant’s subjective complaint otherwise. The Board found that as of Dr.
Tadduni’s first medical exam in May 2017, objective testing did not support the
diagnosis of a brachial plexus injury. At that time Dr. Tadduni believed that the work
injury caused a strain of the biceps at or near the elbow.11
Dr. Tadduni’s opinion after his second examination in November 2017, was
consistent with his initial opinion; the objective results of the examination did not
support a brachial plexus diagnosis.12 Dr. Tadduni and the Board agree that the
results of Murphy’s EMG study, standing alone, are insufficient to diagnose a
brachial plexus injury.
The Board agreed with Dr. Tadduni’s observation that the video of the
accident causing injury did not show the type of traumatic jarring or abnormal
10 Carey v. H & H Maint., Inc., at *2. 11 Murphy, at 11. 12 Id. movement normally associated with a brachial plexus injury. 13 In agreeing with Dr.
Tadduni, the Board stated that it was not convinced by Dr. DiCola’s causation
opinion that a brachial plexus injury could result from any trauma to the lower
cervical spine roots.
The Board expressed skepticism of Dr. DiCola’s diagnosis and causation
opinion. The Board noted Dr. DiCola’s treatment did not change as a result of the
EMG study. However, after a July 2017 MRI showed pre-existing cervical spine
herniation and radiculitis, Dr. DiCola referred Murphy for a surgical diagnosis.14
The Board further noted the confusing discord between Dr. DiCola’s opinion that
Murphy is not fully recovered from the work accident, despite discharging him from
care “for the work injury,” and his recommendation of continued twice weekly
chiropractic maintenance visits.15
The Board also took note of the discrepancy between the testimony by Dr.
DiCola and Murphy. The Board determined that Murphy’s own testimony was not
wholly reliable.16 While Dr. DiCola agreed that his monthly reports indicated
chiropractic treatment continued to improve cervical range of motion, Murphy’s
own testimony was that his symptoms continued to worsen during the same period.
13 Id. at 12. 14 Murphy, at 13. 15 Id. 16 Id. at 14. The Board is free to reject an expert’s conclusion as to causation when the
expert's opinion is based upon the patient's subjective complaints and the Board finds
the underlying facts to be different.17 The Board determined Murphy’s “diffuse and
multiple subjective complaints” did not support a finding that a brachial plexus
injury accompanied the injuries previously accepted by the employer.18
Conclusion
The Industrial Accident Board’s decision to deny additional benefits due for
a brachial plexus injury is supported by substantial evidence. The decision is
unambiguous and free from legal error. Therefore, the Board’s decision to deny
additional benefits on the January 2017, injury claim is Affirmed.
/s/ Calvin L. Scott Judge Calvin L. Scott, Jr.
17 Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988). 18 Murphy, at 14.