IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DONALD SAVAGE, ) ) Claimant-Below/Appellant, ) ) v. ) C.A. No. N23A-06-008 KMV ) SHOPRITE, ) ) Employer-Below/Appellee. )
Submitted: April 15, 2024 Decided: October 21, 2024
MEMORANDUM OPINION
Upon Appeal from the Decision of the Industrial Accident Board: AFFIRMED.
Jennifer D. Donnelly, Esquire, KIMMEL, CARTER, ROMAN, PELTZ & O’NEILL, P.A., Newark, DE; Counsel for Claimant-Below/Appellant.
Nicholas E. Bittner, Esquire, HECKLER & FRABIZZIO, Wilmington, DE; Counsel for Employer-Below/Appellee.
VAVALA, J.
1 This is an appeal from the Industrial Accident Board’s decision denying in
part an injured employee’s recovery under Delaware’s workers’ compensation
statutes. The employee seeks payment from his employer for related medical
expenses and temporary total disability benefits. The employee requests partial
reversal of the Board’s findings as to causation, arguing that such decision is bereft
of substantial evidence. His employer counters that the Board gifted the employee
more than he deserved based on the evidence before it.
This Court finds the Board’s decision well-reasoned, thoughtful, supported by
substantial evidence, and correct as a matter of law. As explained below, the Board’s
decision is AFFIRMED.
PROCEDURAL AND FACTUAL BACKGROUND1
This action was brought by claimant/appellant Donald Savage (“Claimant”)
against employer/appellee Shoprite (“Employer”). Claimant sought compensation
for injuries suffered in connection with work-related activities. After a hearing, the
Board issued a decision providing some but not all relief. Claimant disputes the
Board’s denial of the remaining relief.
1 The facts in this decision reflect the Industrial Accident Board’s findings based on the record developed at the April 17, 2023, hearing (“Hearing”). See Docket Item (“D.I.”) 11, Ex. A (“Decision”). Citations to the Hearing transcript are in the form “Tr. #.” The lodged depositions are cited as Last Name Dep. 2 A. The Slip & Fall
Claimant worked as a seafood manager for Employer at its Christina Crossing
location when he was involved in a work-related accident on October 17, 2021.2
Chatting with a coworker, Claimant grabbed some papers off the lobster tank and
proceeded towards the oil deep fryer, when suddenly his feet flew out from under
him.3 The papers scattered as Claimant grasped for anything to brace his fall.4 He
caught nothing.
Claimant dropped to the floor with such force, it was “as if he got hit on the
blindside while playing football.”5 A warm sensation coursed through his body as
he lay there stunned.6 Still disoriented, he struggled to walk it off.7 He waited at the
front of the store for the assistant store manager at the time, David Pierson, to arrive.8
Claimant informed Mr. Pierson that he fell and “d[id]n’t feel right.”9 Then they went
upstairs to fill out an accident report.10 After discussing the incident, they decided
2 Decision at 2. 3 Id. 4 Id. 5 Id. at 3. 6 Id. 7 Id. 8 Id. 9 Tr. 39:12–18. 10 Tr. 39:21–25. 3 that Claimant should get medical attention, so Mr. Pierson drove him to the
emergency room at ChristianaCare in Wilmington.11
B. The Medical Visits
Medical records from ChristianaCare indicate on the day of the accident
Claimant complained of right-hand pain, low back pain, and bilateral rib pain, but
denied any head-related injuries.12 A physical examination of Claimant noted mild
tenderness and swelling of his upper extremities and parts of his hand, but otherwise
a full range of motion of his neck.13 X-rays failed to show any acute findings more
than soft tissue injuries.14
The following day, Employer directed Claimant to visit WorkPro at Pivot
Occupational Health to get treated for tightness in his low back.15 The day after the
WorkPro visit, on October 19, 2021, Dr. Damon D. Cary treated Claimant, who
complained of headaches and rated his pain as “nine out of ten that was throbbing,
steady and chronic.”16 Dr. Cary diagnosed Claimant with a headache, lumbar strain,
bilateral wrist and hand sprains, and a contusion.17
11 Decision at 3; Tr. 40:10–12. 12 Decision at 15. 13 Id. 14 Id. 15 Id. at 3. 16 Id. at 15. 17 Id. at 8. 4 Claimant then visited with Dr. Polaski (a chiropractor in Dr. Cary’s office)
and received iontophoresis (electrical stimulation) for his low back.18 Claimant
stated he was dropping things at work because his right hand was still weakened and
the medications were not working well.19
The following month, on November 11, 2021, Dr. Steven Grossinger
performed an electromyography (“EMG”) to test Claimant’s muscles and nerves in
his low back and legs.20 The EMG was positive for an acute left L5 radiculopathy.21
Claimant again visited with Dr. Cary and complained of ongoing pain in his low
back, right wrist, and head.22 He was diagnosed with a restricted range of motion in
his lumbar spine and right wrist and advised to undergo further imaging.23
On November 19, 2021, MRIs were taken of Claimant’s lumbar spine and
right hand.24 The MRI of his lumbar spine reflects a slight herniation and disc bulge,
18 Id. 19 Id. 20 Id. at 8, 15–16. 21 Decision at 8. But see Id. at 16 (inconsistent tests show no pinched nerves); id. at 14 (“Dr. Cary admitted he did not review the medical records from Claimant’s visit with Dr. Grossinger, but he did have the EMG report. Dr. Cary also did not review the medical records from Claimant’s visit with Dr. Balu.”). 22 Decision at 8 (“The headaches improved somewhat.”). 23 Id. at 9. 24 Id. at 16. 5 but there was no evidence of pinched nerves.25 The MRI of his right hand reflected
osteoarthritis.26
At a December 14, 2021 visit with Dr. Cary, Claimant presented with severe
pain in his low back and right hand.27 He complained of short-term memory loss
and comments from his wife and coworkers that he “was not as sharp as he used to
be.”28 Dr. Cary diagnosed Claimant with post-concussion syndrome and referred
him to Dr. Evan Crain at Mid-Atlantic for evaluation and treatment for a potential
concussion.29
On December 23, 2021, Dr. Crain reviewed the MRIs and conducted x-rays,
stating that they demonstrated an old, healed fracture in Claimant’s right hand.30
25 Id. at 9 (reflecting diagnoses of: “L4-5 disk herniation and L5-S1 disk bulge[;] first digit flexor tendinosis with peritendinitis; moderate/severe first metacarpophalangeal joint arthrosis; first metacarpophalangeal capsular thickening/sprain; and non-specific small cyst.”), 16. 26 Id. at 16, 20 (“Although the MRI of the lumbar spine demonstrated a two-millimeter L4– 5 disk herniation, the disk herniation did not compromise the central canal or the neural foramen. The findings relative to the longitudinal ligament would not explain radiculopathy because it does not relate to any compromise of the central canal or the neural foramen.”). 27 Id. at 9. 28 Id. But see Tr. 41:5–15 (Mr. Pierson had known Claimant for 15 years, and “[w]ith the interactions [Mr. Pierson has had] with Claimant, [Mr. Pierson] would not be able to say that [he has] noticed something considerably different about the way Claimant behaves or acts.”). 29 Decision at 9. 30 Id. at 10 (“X-rays from Dr. Crain’s office demonstrated an abnormality of the ring metacarpal that was an old fracture. There was no evidence of an acute fracture. Dr. Crain was concerned Claimant sustained a severe contusion to the hand.”), 16. 6 Claimant presented with hand pain and symptoms of carpal tunnel, so Dr. Crain
referred him to a hand therapist at Rise Physical Therapy (“Rise PT”) and instructed
Claimant to sleep with a wrist splint.31 Claimant continued to rehab at Dr. Cary’s
office through December 2021.32
In January 2022, Claimant complained of headaches, blurry and sensitive
vision, and pain in his back and hand.33 Dr. Cary, believing Claimant had symptoms
of a concussion, referred him to Mid-Atlantic for vestibular therapy.34 At that time,
Claimant was seeing three providers: Dr. Cary for his low back; Dr. Crain for his
right hand/wrist; and Mid-Atlantic for his head. At a January 25, 2022 visit,
Claimant reported persistent pain in his palm that worsened with pressure, so Dr.
Cary advised him to get another MRI.35 After reviewing the second MRI result, Dr.
Cary diagnosed Claimant with a tendon tear in his wrist.36
31 Id. at 16. 32 Decision at 10. 33 Id. 34 Id. 35 Id. at 10–11. 36 Id. at 11 (“The impression was of degenerative change of the distal radial ulnar joint with marrow edema and a cystic change within the dorsal aspect of the distal radius. Findings included: tendinopathy; mild intrasubstance tearing of the extensor carpi ulnaris tendon; soft tissue swelling/synovitis at the dorsal/ulna aspect of the wrist; and a slight dorsal displacement of the distal ulna relative to the distal radius.”). 7 Medical records from a January 27, 2022 Mid-Atlantic visit relate complaints
of headache, insomnia, dizziness, light and noise sensitivity, and fatigue.37 Claimant
continued to receive treatment for several months thereafter.38 He received two
cortisone injections from Dr. Crain to relieve his wrist pain, but rejected an offer
from Dr. Balu for an injection in his back.39 In March 2022, “Dr. Cary discontinued
the in-office rehabilitation and chiropractic treatment because Dr. Cary believed
Claimant had plateaued.”40
Dr. Cary wanted Claimant to start a work-hardening regimen to identify the
types of jobs that he could handle so that he could return to work. 41 But Claimant
“was unable to start work hardening due to lack of insurance coverage.”42 Thus, he
was limited to “light duty work restrictions with no repetitive use of the right upper
extremity.”43
37 Decision at 11, 17. 38 Id. at 17–18. 39 Id. at 11 (“Dr. Balu discussed with Claimant different topical creams that Claimant reported did not help.”). 40 Id. 41 Decision at 12 (Dr. Cary wanted Claimant to undergo work-hardening because it is more aggressive than traditional physical therapy.”). 42 Id. 43 Id. 8 On March 20, 2022, while inside a walk-in freezer at work, Claimant
“tweaked his neck and back” to avoid a 40-pound box that was falling.44 Claimant
reported the incident to WorkPro and Dr. Cary added a diagnosis of acute lumbar
spine flare-up.45 Dr. Cary then prescribed Tramadol for pain and kept Claimant on
light duty status until April 13, 2022.46
When Claimant returned to full-duty status, he was examined by Dr. William
Sommers who noted that Claimant “was uncooperative in providing any history or
details relating to past medical history[.]”47 In May 2022, Claimant admitted that he
was benefitting from the chiropractic treatment but raised several other concerns.48
He presented with swelling in his right hand, “ongoing weakness in his left leg three
to four time per week[,]” and back pain exacerbated by bending, reaching, and
sitting.49 “The last time Dr. Cary saw Claimant was in June 2022 despite Claimant’s
ongoing complaints.”50
44 Id. 45 Id. 46 Id. (“On April 13, 2022, Dr. Cary released Claimant to full duty work.”). 47 Decision at 18. 48 Id. at 12. 49 Id. 50 Id. at 13. 9 C. The Hearing
On July 29, 2022, Claimant petitioned the Board for a compensation
determination against Employer.51 He sought findings that: (1) he had suffered
compensable injuries to his back, neck, right hand/wrist, and his head; (2) his
medical treatment for those injuries was reasonable, necessary, and causally related
to the work accident; and (3) he was entitled to payment of temporary total disability
benefits from March 22, 2022 through May 1, 2022.52 Employer contested the
nature and extent of Claimant’s injuries and disputed whether the medical treatment
was reasonable, necessary, and causally related to the work accident.
At the April 17, 2023 Hearing, Claimant and David Pierson testified on behalf
of Claimant. Whether Claimant’s injuries were causally related to the work accident
was addressed by competing experts.53 Dr. Cary testified via deposition on behalf
of Claimant and Dr. Sommers provided live, and the only, testimony for Employer.
51 Tr. 3:7–8. 52 Decision at 2 (the payment request for March to May is for “the time Employer was unable to accommodate [Claimant’s] light duty work restrictions”). 53 D.I. 12 at 1. 10 D. The Decision
On May 24, 2023, the Board issued its Decision.54 It was undisputed that
Claimant injured his low back and right hand/wrist from a work-related accident.55
But the Board concluded that Claimant had “stopped all medical treatment in June
2022 and was working without restrictions,” which suggested that his injuries had
resolved.56 The main dispute before the Board was the extent of such injuries and
whether Claimant sustained neck or head injuries to endorse a concussion.57
The Board expressed concerns about Dr. Cary’s medical oversight of
Claimant because his license to practice medicine was on a probationary status.58
Dr. Cary recommended a work-hardening program to slowly integrate Claimant
back to work, but the Board found Claimant need not enter a work-hardening
program if he was already capable of returning to work without any restrictions.59
The Board also noted that Dr. Cary had failed to comply with prescription
requirements—that is, no documents established standard medical checks or any
54 D.I. 11 at 1. 55 Decision at 24; see also id. at 19 (“Dr. Sommers concluded [Appelant]’s injuries were limited to sprains and strains of the low back and of the right hand/wrist that would have resolved in weeks to three months.”). 56 Decision at 19. 57 Id. at 24. 58 Cary Dep. 6:6–8. 59 Decision at 30. 11 discussions with Claimant regarding the risks and benefits of the medications before
Dr. Cary prescribed them.60
The Board denied the claim for a neck injury. Although the timing of when
Claimant first presented with neck issues is murky, Claimant denied having any neck
pain at the emergency room within a few hours of the accident and Dr. Cary failed
to document any neck-related injuries in late 2021 through early 2022.61 The record
is devoid of any support showing Claimant’s neck injuries were causally related to
the accident.
The Board credited Dr. Sommers’ testimony and guidance regarding the
reasonableness and necessity of Claimant’s medications.62 So the non-steroidal
medications prescribed between November 11, 2021 and January 17, 2022 were
60 Id. at 30–31 (Dr. Cary played fast and loose with the prescription requirements because it “would be too burdensome”). See also id. at 31 (“Dr. Cary had been a longtime medical provider to Delaware workers’ compensation patients prior to his medical license being suspended. He is fully aware of the responsibilities for treating Delaware workers’ compensation patients. One of the reasons Dr. Cary’s medical license was suspended was because he was not compliant with his obligations when prescribing medications. It is alarming that after having his license relatively recently reinstated, Dr. Cary is demonstrating the same type of cavalier and unprofessional recordkeeping and medical oversight he exhibited leading up to his suspended license. Furthermore, Dr. Cary’s conduct causes him not to be credible and hurts Claimant’s case.”). 61 Decision at 25. 62 Id. at 29. 12 reasonable and necessary.63 But not the opioids. Yet, because Dr. Cary prescribed
opioids after January 2022, the issue was moot.64
The Board found Claimant’s “subjective complaints of pain down the leg with
numbness and tingling could not be reconciled with the MRI findings or with Dr.
Sommer’s examination findings.”65 Instead, the Board credited Dr. Sommer’s
testimony, which challenged the lack of evidence to support a neck injury:
There was no advanced imaging of the cervical spine or physical therapy directed to the neck. There were no neck complaints early in treatment. When Claimant treated [sic] at the emergency room shortly after the work accident, Claimant had full range of motion of the neck and no tenderness. There was nothing on Dr. Sommers’ physical examination to suggest any significant neck injury. Dr. Sommers remarked if Claimant suffered any injury to the neck, it would have been a minor cervical strain and sprain type injury that would have resolved in the same general timeframe.66
Claimant also sought temporary total disability benefits from March 22 to May 16,
2022, during which Employer refused to cover Claimant’s light duty restrictions.67
Because Claimant’s low back and right hand/wrist injuries resolved by February
2022 the Board found the disputed period moot.68
63 Id. at 29–30. 64 Id. at 30. 65 Id. at 20. 66 Id. at 21. 67 Decision at 30. 68 Id. 13 Under 19 Del. C. § 2322(e), the Board awarded medical expert fees in favor
of Claimant because his petition for compensation was granted in part.69 Employer
had tendered an award, but the value of the Board’s award was higher than the
settlement offer.70 The Board explained that a “claimant who is awarded
compensation generally is entitled to payment of ‘a reasonable attorney[s’] fee in an
amount not to exceed thirty percent of the award or ten times the average weekly
wage in Delaware as announced by the Secretary of Labor at the time of the award,
whichever is smaller[.]”71 Thus, the Board awarded Claimant $6,000 in reasonable
attorneys’ fees to be paid by Employer.72
Ultimately, the Board found the testimony of Dr. Sommers more credible than
Dr. Cary’s.73 With the weight of the evidence in Employer’s favor, the record
established that Claimant’s injuries were “limited to low back and right hand/wrist
sprains and strains that have since resolved.”74 In short, the Board granted in part
69 Id. at 31 (“Under 19 Del. C. § 2322(e), [Employer] shall pay for Claimant’s medical expert fees in the event Claimant receives an award.”). 70 Id. (“Attorney[s’] fees are not awarded, however, if, thirty days prior to the hearing date, the employer gives a written settlement offer to the claimant that is ‘equal to or greater than the amount ultimately awarded by the Board.’”) (citing 19 Del. C. § 2320(10)(a)). 71 Decision at 30. 72 Id. 73 Id. at 24–25 (“The Board accepts the opinions of Dr. Sommers over the opinion of Dr. Cary. Dr. Sommers’ testimony was credible. Dr. Cary’s testimony was not.”). 74 Id. at 24. 14 and denied in part Claimant’s claims.75 Claimant timely appealed the partial denial
on June 19, 2023, and briefing was completed on April 15, 2024.76
DISCUSSION
The questions pending before this Court on appeal are whether the Board’s
fact findings are supported by substantial evidence and its conclusions are free of
legal error. Claimant argues that the Board erred by improperly denying him
compensation for treatment of his low back, right hand/wrist, and head due to the
work accident. This Court disagrees. While the Claimant may be dissatisfied with
the result, this Court finds the Board’s findings of fact are properly supported by the
record and its legal conclusions are correct as a matter of Delaware law.
This Court exercises “appellate jurisdiction over final agency decisions under
29 Del. C. § 10142.”77 “The review of an Industrial Accident Board’s decision is
limited to an examination of the record for errors of law and a determination of
whether substantial evidence exists to support the Board’s findings of fact and
conclusions of law.”78 This Court “must give deference to the ‘experience and
75 Id. 76 Id. at 32. 77 Quality Assured Inc. v. David, 2022 WL 17442738 (Del. Super. Dec. 6, 2022). 78 Powell v. OTAC, Inc., 223 A.3d 864, 870 (Del. 2019) (citing Roos Foods v. Guardado, 152 A.3d 114, 118 (Del. 2016)); see also Gen. Motors Corp. v. Freeman, 164 A.2d 686, 689 (Del. 1960); Rosenblum v. City of Wilm., 2024 WL 3876630, at *1 (Del. Super. Aug. 20, 2024); Johnson v. Canalfront Builders, LLC, 2024 WL 862442, at *3 (Del. Super. Feb. 29, 2024), aff’d, 2024 WL 3886193 (Del. Aug. 21, 2024). 15 specialized competence of the Board’ and must take into account the purposes of the
Worker’s Compensation Act. These restrictions are in part due to the ‘critical
advantage’ the Board has in its ability to observe the testimony of the live
witnesses.”79 “Questions of law, such as the construction of the workers’
compensation statute, are reviewed de novo.”80 If the law is “overridden or
misapplied,” this Court “will not hesitate to reverse.”81 Questions of fact, however,
are governed by the substantial evidence standard. Substantial evidence is defined
as “such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.”82 Put differently, substantial evidence is “more than a scintilla but
less than a preponderance of the evidence.”83 In this context, it is not this Court’s
79 Foraker v. Amazon.com, Inc., 2022 WL 599047, at *3 (Del. Super. Feb. 9, 2022) (first quoting Phoenix Steel Corp. v. Garton, 1980 WL 687396, at *2 (Del. Super. July 25, 1980); then citing Histed v. E.I. Du Pont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993); and then quoting Butler v. Speakman Co., 1992 WL 276449, at *2 (Del. 1992)). 80 LeVan v. Indep. Mall, Inc., 940 A.2d 929, 932 (Del. 2007) (citing Page v. Hercules, 637 A.2d 29, 32 (Del. 1994)). 81 Baxter v. Verizon Commn’s, 2024 WL 3581660, at *3 (Del. Super. July 30, 2024) (first citing Pitts v. White, 109 A.2d 786, 788 (Del. 1954); then citing Ohrt v. Kentmere Home, 1996 WL 527213, at *3 (Del. Super. Aug. 9, 1996); and then citing City of Wilm. V. Clark, 1991 WL 53441, at *3 (Del. Super. Mar. 20, 1991)). 82 Fowler v. Perdue, Inc., 2024 WL 3196775, at *8 (Del. June 24, 2024) (citing Zayas v. State, 273 A.3d 776, 785 (Del. 2022)) (cleaned up). 83 Powell v. OTAC, Inc., 223 A.3d 864, 870 (Del. 2019) (quoting Noel-Liszkiewicz v. La- Z-Boy, 68 A.3d 188, 191 (Del. 2013)); id. at 871 (citing Hardy v. E. Quality Vending, 2015 WL 2378903, at *6 (Del. Super. May 12, 2015)) (“[T]his factual finding depends in large measure on the Board’s assessment of the credibility of the witnesses who testify before it. It is the exclusive function of the Board to evaluate the credibility of witnesses.”). 16 province to independently weigh the evidence, determine questions of credibility, or
make its own factual findings,84 but rather, to “view the record in the light most
favorable to the prevailing party below.”85 Further, “[t]here is a presumption in favor
of validity of the Board’s decision and the burden of showing the error rests with the
party raising the objection to such decision.”86 Here, that is Claimant.
“Under the Delaware Workers’ Compensation Act, an employee is entitled to
receive compensation for injuries sustained in accidents ‘arising out of and in the
course of employment.’”87 “Generally, the quantum of proof in a workers’
compensation case is a preponderance of the evidence.”88 “When an employee has
suffered an injury causally related to a work accident, he or she is entitled to
payment of expenses incurred for ‘reasonable and necessary’ medical services
directly related to that injury.’”89
84 Kelley v. Perdue Farms, 123 A.3d 150, 153 (Del. Super. 2015) (citing Bullock v. K-Mart Corp., 1995 WL 339025, at *2 (Del. Super. May 5, 1995)). 85 Wyatt v. Rescare Home Care, 81 A.3d 1253, 1258–59 (Del. 2013) (citing Steppi v. Conti Elec., Inc., 991 A.2d 19 (Del. 2010) (TABLE)). 86 Foraker, 2022 WL 599047, at *3 n.40 (citing Phoenix Steel Corp. v. Garton, 1980 WL 687396, at *2 (Del. Super. July 25, 1980)). 87 Quality Assured, 2022 WL 17442738, at *3 (citing 19 Del. C. § 2304). 88 Falconi v. Coombs & Coombs, Inc., 902 A.2d 1094, 1097 (citing Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 343 (Del. 1993)). 89 2022 WL 17442738, at *3 (citing 19 Del. C. § 2322) (emphasis added). 17 Claimant argues that the Board’s factual findings are not supported by
substantial evidence and its conclusion of law regarding causation was in error.
Claimant does not dispute the body of case law Employer pointed to in its answering
brief regarding the substantial evidence standard or the Board’s ability to rely on
expert testimony, but instead focuses on two cases in support of his argument for
causation. Neither case compels this Court to conclude the Board erred as a matter
of law in finding Claimant failed to establish causation.
The first is Quality Assured Incorporated v. David, in which this Court
explained that a claimant need not “proffer conclusive evidence, as long as he proves
causation by a preponderance of the evidence.”90 In Quality Assured, the employer
took issue with the opposing expert’s testimony because it missed certain medical
terms and that effective injections alone were insufficient to prove reasonableness.91
But this Court explained that “unlike the [Board], the Court does not sit as a trier-
of-fact and is prohibited from making its own factual findings.” 92 And despite the
employer disagreeing with the Board’s “credibility finding and weighing of
evidence[,] . . . the Court must defer to the ‘experience and special competence’ of
the [Board] in those aspects of its ruling.”93
90 Id. at *6. 91 Id. 92 Id. 93 Id. 18 The second case Claimant relies upon is Reese v. Home Budget Center, a 1992
case in which the Delaware Supreme Court used the “but for” definition of proximate
cause to fix “the relationship between an acknowledged industrial accident and its
aftermath.”94 The Reese Court reasoned that the “accident need not be the sole cause
or even a substantial cause of the injury. If the accident provides the ‘setting’ or
‘trigger,’ causation is satisfied for purposes of compensability.”95
More recently, however, in Hoffecker v. Lexus of Wilmington, the Delaware
Supreme Court affirmed the Board’s and this Court’s findings where the claimant
failed to “meet his burden in showing any causal relationship between his work and
his back injury.”96 The Hoffecker Court even quoted Dr. Grossinger’s testimony
wherein he opined that “‘to link a condition to accumulative work activities,’ he
believed ‘there should be some notation by the treating doctors suggesting that the
work itself that the patient is mentioning the work and the doctor is recognizing and
connecting the work as being causal.’”97
Here, the Board concluded that Claimant did not meet his initial burden to
show causation by a preponderance of the evidence. “Identifying a symptom does
94 619 A.2d 907, 910 (Del. 1992). 95 Id. 96 36 A.3d 349 (Del. 2012) (TABLE) (emphasis added). 97 Id. (cleaned up). 19 not constitute proving an injury.”98 Nor does “[a]n expert medical opinion based on
the interpretation of appropriate objective test results . . . lack a substantial factual
basis.”99 Instead, “[t]he Board [was] free to accept the testimony of one medical
expert over that of another”100 and did so by crediting Dr. Sommer’s medical opinion
over Dr. Cary’s. “[The E]mployer is under no obligation to identify or prove the
existence of a non-work cause of injury; the employer simply needs to present
evidence rebutting the claim that an injury was work related.”101 Whereas, here, the
Board found credible facts rebutting Claimant’s argument that all his injuries were
causally related to his work accident. This Court declines to second-guess the Board.
Instead, this Court holds the facts found by the Board are supported by substantial
evidence and its legal conclusion regarding causation was not in error.
A. The Board’s finding that Claimant’s low back injury was limited to a sprain/strain and resolved by January 2022 is supported by substantial evidence.
98 McDaniel-Wesche v. Sun Behav. Health, 2024 WL 980483, at *5 (Del. Super. Mar. 6, 2024)). 99 Blake v. State, 792 A.2d 188 (Del. 2002) (TABLE). 100 Bullock v. K-Mart Corp., 1995 WL 339025, at *3 (Del. Super. May 5, 1995) (citation omitted); see also Miller v. Del. Psych. Ctr., 2013 WL 1281850, at *9 (Del. Super. Mar. 28, 2013) (“The Board may accept one medical expert’s testimony as more persuasive than that of another. . . . As long as the Board’s determination is supported by substantial evidence, the Court will not ‘second-guess such credibility determinations.’”). 101 Dye v. Merrit-Sparks, 2009 WL 3334908, at *2 (Del. Super. Aug. 31, 2009) (citing Strawbridge & Clothier v. Campbell, 492 A.2d 853, 854 (Del. 1985)). 20 As the fact finder, the Board was at liberty to credit certain expert testimony
and reject other expert testimony regarding the issue of causation. Wesley v. State
is instructive.102 There, the claimant sought compensation for a low-back injury and
related medical treatments causally related to a work incident. Not only are the facts
of Wesley like this case, but so are some of the major players. For example, in
Wesley, Dr. Grossinger treated the claimant and Dr. Sommers testified on behalf of
the employer.103 Although Dr. Grossinger was the claimant’s treating physician, the
Board credited the testimony of Dr. Sommers who found no objective (or
corroborating) evidence suggesting lumbosacral radiculopathy. The Board in
Wesley determined that the claimant failed to show that she suffered a lumbar
sprain/strain injury in relation to the work accident. So too here.
At the emergency room on the day of the Accident, Claimant presented with
“tenderness to palpitation of the lumbar spine and of the left paraspinal muscles” and
his low back was diagnosed as “limited to a lumbar contusion.”104 Dr. Sommers
explained there was “no credible evidence to support disk involvement or
lumbosacral radiculopathy.”105 And the EMGs performed by Drs. Grossinger and
102 2021 WL 3783634, at *2 (Del. Super. Aug. 23, 2021). 103 Id. at *2–3. 104 Decision at 28. 105 Id. 21 Sarlo were irreconcilable—only Dr. Sarlo’s EMG was consistent with the MRI.106
Likewise, Claimant’s own expert, Dr. Cary, failed to opine that any imaging
“demonstrated any compromise of the central canal or of the neural foramen.”107
Dr. Cary documented that Claimant had ongoing muscle spasms despite
having full lumbar range of motion.108 Yet Dr. Sommers noted “that it would be
unusual for someone to have significant muscle spasm[s] and not have associated
restricted range of motion.”109 Moreover, corresponding medical records show that
Claimant had received opioids for spontaneous bursts of pain and reported full
lumbar range of motion despite ongoing spasms.110
Other than “possible mild weakness of the right hand intrinsic muscles[,]” Dr.
Sommers’ findings were unremarkable—Claimant had full lumbar range of motion
and no evidence suggested “segmental weakness or reflex attenuation consistent
with lumbosacral radiculopathy.”111 “On structural examination, there was full pain-
106 Id. 107 Id. 108 Id. at 10, 16. 109 Decision at 16–17 (at that time, Claimant was prescribed Tylenol #3). 110 Id. at 17–18. 111 Id. at 19. Such results were “consistent with the normal result of Dr. Sarlo’s EMG of the lower extremities performed on April 7, 2022, per [Employer]’s direction[,]” which was also consistent with Dr. Grossinger’s November 11, 2021 EMG results. Id. 22 free lumbar range of motion. Claimant was able to bend at the waist and advance
his fingertips to within two inches of his toes without bending his knees.”112
True, Claimant’s visits with Dr. Cary “were reasonable and necessary because
Dr. Cary was the doctor overseeing treatment[;]”113 yet the Board properly relied on
Dr. Sommers’ opinion and supporting evidence that Claimant’s low back injury had
resolved, finding Claimant’s low back injury was limited to a strain and sprain.114
And it did so generously by giving Claimant the benefit of the doubt because his low
back injuries could have resolved within a few weeks instead of a few months.115
B. The Board’s finding that Claimant’s right hand/wrist was limited to a sprain/strain and resolved by February 2022 is supported by substantial evidence.
The Board limited the work-related diagnosis to a right hand/wrist sprain and
strain, ruling out the compensability of carpal tunnel syndrome. 116 Dr. Sommers
attributed Dr. Crain’s medical reports to Claimant’s preexisting condition unrelated
to the Accident.117 But he did not “dispute the reasonableness and necessity of Dr.
112 Id. 113 Id. at 29. The Board did not, however, compensate Claimant for services provided by Dr. Cary on October 19, 2021 because Dr. Cary was not certified to practice until November 11, 2021. Id. 114 Decision at 27–28. 115 Id. at 29. 116 Id. at 27. 117 Id. 23 Crain’s treatment.”118 Thus, the Board properly found the treatment by Dr. Crain
and Rise PT through February 2022 was reasonable, necessary, and causally related
to the Accident.119
C. The Board’s finding that Claimant did not sustain a head injury/concussion is supported by substantial evidence.
The Claimant had the opportunity to disclose a head injury when he was
treated in the emergency room shortly after the Accident, yet he denied any
headaches and loss of consciousness.120 Rather, Claimant admitted he landed on his
hands and rear.121 And medical records indicate that Claimant had a full and clear
recollection of the Accident.122 Significantly, the Board deemed Claimant displayed
credibility issues.123 His testimony regarding whether he hit his head was
inconsistent, and some “of the Mid-Atlantic test results did not correlate with
Claimant’s level of function suggesting Claimant’s complaints could be
exaggerated.”124
118 Id. 119 Id. 120 Decision at 25–26. Compare Decision at 3 (Claimant testified that, when he woke up the morning after the Accident, “the room was spinning fast.”), with Decision at 5 (the WorkPro medical records “made no mention of a head injury . . . headaches . . . or loss of consciousness.”). 121 Decision at 25. 122 Id. 123 Id. at 28. 124 Id. at 28–29. 24 When asked by Dr. Sommers about the Accident, Claimant denied striking his
head or losing consciousness, denied ever taking any medications, and directed Dr.
Sommers to read the medical records.125 Dr. Sommers advised that the medical
record failed to support that Claimant sustained a head injury or concussion:
On the day of the work accident, when Claimant treated [sic] at the emergency room, Claimant specifically denied a head injury, denied loss of consciousness, and denied headaches. According to the emergency room records, Claimant had a full and clear recollection of the accident. The examination of the head and neck were unremarkable. The next day at WorkPro, there was no mention of a head injury, of headaches, or of loss of consciousness. Claimant denied neurological symptoms including headaches and dizziness. 126
Indeed, Claimant did not present with headaches until his October 19, 2021 visit
with Dr. Cary, which militates against a causal connection between such headaches
and the Accident.127 WorkPro medical records reflect tightness in the low back but
are absent any headaches, dizziness, numbness, or tingling.128 Nor do such records
indicate any pain related to Claimant’s back, wrist, neck, or joints.129 The low scores
125 Decision at 18. But see id. at 18 (“Claimant denied taking medications although Dr. Sommers was aware Dr. Cary prescribed Tramadol on March 20, 2022”); id. at 22 (“Dr. Sommers recognized that Dr. Cary did not provide the necessary documentation to support such prescriptions”). 126 Decision at 21; see also id. at 20 (“Claimant did not injure his neck or his head [and] did not sustain a concussion.”). 127 Decision at 22. 128 Id. at 15. 129 Id. 25 from the Mid-Atlantic tests were inconsistent with the initial imaging, and more
indicative of someone suffering from severe dementia or cognitive impairment.130
Claimant first presented with headaches at his first visit with Dr. Cary, who
failed to explain how Claimant’s purported head injury was linked to the Accident.131
Dr. Grossinger documented the first report of a head injury—a month after the
Accident.132 No witnesses or video evidence supports Claimant’s claim that he hit
his head.133 Claimant leans on the concussion scores from Mid-Atlantic, but
Claimant’s work record contradicts such cognitive impairment.134
As a seafood manager, Claimant’s duties include stocking product, serving
customers, supervising staff, coordinating work schedules, and handling employee
concerns.135 Mr. Pierson testified that he had not “noticed any difference in what
130 Id. at 17–18. 131 Decision at 26. 132 Id. 133 Id. 134 Id. (Claimant had continued to work in a managerial capacity. He was and has been supervising staff, coordinating staff work schedules and dealing with employee concerns.”); see also id. at 22 (“[T]he scores did not support Claimant’s level of function. The scores reflected a person having severe dementia and severe cognitive impairment, yet Claimant had been working consistently since the work accident and had been on full duty for almost the last year . . . the tests did not incorporate internal validation measures”). 135 Decision at 6; Tr. 41:17–42:6. Claimant works 55 to 60 hours per week. Tr. 7:23–25, 42:7–14 (“Claimant has always been someone who we knew would be there from dusk ‘til dawn if needed. He is very dedicated to what he does, so I -- without having the time sheets, I would still assume that he did his overtime.”). 26 Claimant does” at work.136 Although Dr. Cary attributed Claimant’s headaches to
the work accident, he failed to explain the connection and did not place any work
restrictions on Claimant.137 It follows that the Board found no evidence showing
Claimant was unable to cognitively perform his job.138
In sum, the etiology of Claimant’s conditions remains elusive. The Board
correctly determined that Claimant failed to meet his burden to show his symptoms
were causally related to the October 17, 2021 work-related injury. The Board
properly rejected Dr. Cary’s opinion that some of the symptoms were related to the
work accident or as severe as suggested. Dr. Sommers’ testimony moves the needle
more—and the Board properly credited his testimony.
136 Tr. 42:15–22. 137 Decision at 16. 138 Id. at 26. 27 CONCLUSION
This Court finds the Board’s factual findings regarding the type and extent of
Claimant’s injuries are based upon substantial evidence in the record and its
conclusions of law regarding causation are consistent with Delaware jurisprudence.
Accordingly, the Board’s Decision denying in part Claimant’s compensation for
medical expenses is hereby AFFIRMED.
IT IS SO ORDERED.
/s/ Kathleen M. Vavala The Honorable Kathleen M. Vavala