IN THE SUPREME COURT OF THE STATE OF DELAWARE
LEMUEL SHIPMON, § § No. 261, 2021 Appellant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § C.A. No. N20A-01-007 STATE OF DELAWARE, § § Appellee Below, § Appellee. §
Submitted: February 2, 2022 Decided: April 1, 2022
Before SEITZ, Chief Justice; VALIHURA, and VAUGHN, Justices.
ORDER
Upon consideration of the parties’ briefs and the record on appeal, it appears
that:
(1) The Appellant, Lemuel Shipmon, appeals from a judgment of the
Superior Court affirming a decision of the Industrial Accident Board (the “Board”).
The Board’s decision denied his Petition to Determine Additional Compensation
Due. He makes two arguments on appeal. First, he argues that the Board erred by
failing to award him “permanent partial impairment after determining that he
suffered permanent limited function.”1 Second, he argues that the Board’s decision
1 Corrected Opening Br. at 9-12. is not supported by substantial evidence. For the reasons that follow, we have
concluded that the Superior Court’s judgment should be affirmed.
(2) On August 3, 2017, Shipmon suffered an injury when he fell off a stool
while employed as a constable at Delaware Technical Community College (the
“Employer”). He claims that as a result of that incident, he injured his right hand,
left elbow, cervical spine, and lumbar spine, and now suffers a 22% permanent
impairment to his cervical spine.
(3) Shipmon filed a Petition to Determine Additional Compensation Due
with the Board based upon his claim of a 22% permanent impairment to his cervical
spine. The claim was based upon the medical opinions of Dr. Stephen Rodgers, who
is board certified in occupational and preventative medicine. Dr. Rodgers is also
certified in the use of the AMA Guides to the Evaluation of Permanent Impairment
(the “AMA Guides”). In arriving at his opinion, Dr. Rodgers relied upon DRE
(Diagnose-Related Estimate) Table 15-5 in the fifth edition of the AMA Guides.
Table 15-5 has five Categories. Excluding Category I, each Category includes a
range of permanent impairment to account for the resolution or continuation of
symptoms and their impact on the performance of daily activities. The rater places
the patient in a Category based on clinical judgment and on a level of function helped
by the history and by standardized forms. Dr. Rodgers’s evaluation placed Shipmon
in Category III. Category III contains a range of 15% to 18% permanent impairment
2 to the whole person. He then applied a 0.75 conversion factor to arrive at his
conclusion that there was a 22% permanent impairment of the cervical spine.
(4) At a hearing before the Board on October 24, 2019, the Employer
presented the testimony of Dr. Stephen Fedder—a board certified neurosurgeon. Dr.
Fedder examined Shipmon on January 30, 2018, and June 26, 2019. He testified
that the cervical spine aspect of Shipmon’s work-related injury had resolved itself
by the time of his first examination and Shipmon had not sustained any permanent
impairment of his neck as a result of the work accident. Dr. Fedder did not take
issue with Dr. Rodgers’s use of Table 15-5 or the application of the DRE method.
He did testify, however, that based on his examination, Shipmon did not meet any
of the criteria of Category III.
(5) The Board found that Dr. Rodgers’s testimony was not credible. In so
finding, the Board took into account a number of factors, including the following.
Dr. Rodgers relied in part upon an MRI that predated the work injury, but he did not
compare the MRI that predated the work injury with one that was done after the
work injury. In fact, he did not discuss the second MRI at all in his testimony. Dr.
Fedder, by contrast, testified that there was no significant difference between the two
MRIs. Dr. Kennedy Yalamanchili, a neurosurgeon that Shipmon was referred to by
his primary care doctor, testified that any progression between the two MRIs was
based on the natural history of degenerative disease, not trauma.
3 Another factor considered by the Board in assessing Dr. Rodgers’s credibility
was that Category III applies to a patient with significant signs of radiculopathy,
such as pain and/or sensory loss, in a dermatomal distribution, loss of relevant
reflexes, loss of muscle strength, or unilateral atrophy. The neurologic impairment
may be verified by electrodiagnostic findings. Dr. Rodgers admitted, however, that
Shipmon did not have any documented loss of muscle strength or unilateral atrophy.
Another factor contemplated by the Board related to a pinched nerve in Shipmon’s
neck. Shipmon has a preexisting pinched nerve in his neck, but Dr. Rodgers showed
no concern about the pinched nerve. Dr. Rodgers was also unwilling to consider
placing Shipmon in a less severe Category. For these reasons, the Board rejected
Dr. Rodgers’s permanent impairment rating, finding that “[t]he reasons supporting
his ratings are questionable and his actual rating appears to greatly overstate the
degree of permanent impairment related to the work accident.”2 The Board then
denied Shipmon’s petition.
(6) Shipmon appealed to the Superior Court, which affirmed the Board’s
decision.
(7) Generally, this Court’s review of an Industrial Accident Board decision
is “limited to a determination of whether there is substantial evidence to support the
2 Corrected Opening Br. Ex. B at 19.
4 Board’s findings.”3 “Substantial evidence means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”4 On appeal,
errors of law are reviewed de novo.5
(8) Shipmon’s first contention is that the Board erred by failing to award
him “permanent partial impairment after determining that he suffered permanent
limited function.”6 This argument is based upon the following statements made by
the Board in its decision: “The Board found Claimant highly credible. He appears
to have permanent limited function but minimally. . . . The Board accepts Claimant’s
testimony that as a result of the work-related neck injury, he has had to modify his
body mechanics to some degree.”7 These findings, Shipmon argues, require some
award for permanent partial impairment under 19 Del. C. § 2326(g), which provides,
in pertinent part, that “[t]he Board shall award proper and equitable compensation
for the loss of . . . or loss of use of any member or part of the body.” The Board
rejected this argument by finding that “it is not only Claimant’s burden of proving
he is permanently impaired as a result of the work accident, but he has the burden of
proving his permanent impairment is the degree he alleges as a result of the work
3 Betts v. Townsends, Inc., 765 A.2d 531, 533 (Del. 2000). 4 Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994) (internal quotation marks omitted). 5 Arrants v. Home Depot, 65 A.3d 601, 605 (Del. 2013). 6 Corrected Opening Br. at 9-12. 7 Corrected Opening Br. Ex. B at 17.
5 accident – twenty-two percent.”8
(9) Shipmon relies, in part, on this Court’s decision in Turbitt v. Blue Hen
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
LEMUEL SHIPMON, § § No. 261, 2021 Appellant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § C.A. No. N20A-01-007 STATE OF DELAWARE, § § Appellee Below, § Appellee. §
Submitted: February 2, 2022 Decided: April 1, 2022
Before SEITZ, Chief Justice; VALIHURA, and VAUGHN, Justices.
ORDER
Upon consideration of the parties’ briefs and the record on appeal, it appears
that:
(1) The Appellant, Lemuel Shipmon, appeals from a judgment of the
Superior Court affirming a decision of the Industrial Accident Board (the “Board”).
The Board’s decision denied his Petition to Determine Additional Compensation
Due. He makes two arguments on appeal. First, he argues that the Board erred by
failing to award him “permanent partial impairment after determining that he
suffered permanent limited function.”1 Second, he argues that the Board’s decision
1 Corrected Opening Br. at 9-12. is not supported by substantial evidence. For the reasons that follow, we have
concluded that the Superior Court’s judgment should be affirmed.
(2) On August 3, 2017, Shipmon suffered an injury when he fell off a stool
while employed as a constable at Delaware Technical Community College (the
“Employer”). He claims that as a result of that incident, he injured his right hand,
left elbow, cervical spine, and lumbar spine, and now suffers a 22% permanent
impairment to his cervical spine.
(3) Shipmon filed a Petition to Determine Additional Compensation Due
with the Board based upon his claim of a 22% permanent impairment to his cervical
spine. The claim was based upon the medical opinions of Dr. Stephen Rodgers, who
is board certified in occupational and preventative medicine. Dr. Rodgers is also
certified in the use of the AMA Guides to the Evaluation of Permanent Impairment
(the “AMA Guides”). In arriving at his opinion, Dr. Rodgers relied upon DRE
(Diagnose-Related Estimate) Table 15-5 in the fifth edition of the AMA Guides.
Table 15-5 has five Categories. Excluding Category I, each Category includes a
range of permanent impairment to account for the resolution or continuation of
symptoms and their impact on the performance of daily activities. The rater places
the patient in a Category based on clinical judgment and on a level of function helped
by the history and by standardized forms. Dr. Rodgers’s evaluation placed Shipmon
in Category III. Category III contains a range of 15% to 18% permanent impairment
2 to the whole person. He then applied a 0.75 conversion factor to arrive at his
conclusion that there was a 22% permanent impairment of the cervical spine.
(4) At a hearing before the Board on October 24, 2019, the Employer
presented the testimony of Dr. Stephen Fedder—a board certified neurosurgeon. Dr.
Fedder examined Shipmon on January 30, 2018, and June 26, 2019. He testified
that the cervical spine aspect of Shipmon’s work-related injury had resolved itself
by the time of his first examination and Shipmon had not sustained any permanent
impairment of his neck as a result of the work accident. Dr. Fedder did not take
issue with Dr. Rodgers’s use of Table 15-5 or the application of the DRE method.
He did testify, however, that based on his examination, Shipmon did not meet any
of the criteria of Category III.
(5) The Board found that Dr. Rodgers’s testimony was not credible. In so
finding, the Board took into account a number of factors, including the following.
Dr. Rodgers relied in part upon an MRI that predated the work injury, but he did not
compare the MRI that predated the work injury with one that was done after the
work injury. In fact, he did not discuss the second MRI at all in his testimony. Dr.
Fedder, by contrast, testified that there was no significant difference between the two
MRIs. Dr. Kennedy Yalamanchili, a neurosurgeon that Shipmon was referred to by
his primary care doctor, testified that any progression between the two MRIs was
based on the natural history of degenerative disease, not trauma.
3 Another factor considered by the Board in assessing Dr. Rodgers’s credibility
was that Category III applies to a patient with significant signs of radiculopathy,
such as pain and/or sensory loss, in a dermatomal distribution, loss of relevant
reflexes, loss of muscle strength, or unilateral atrophy. The neurologic impairment
may be verified by electrodiagnostic findings. Dr. Rodgers admitted, however, that
Shipmon did not have any documented loss of muscle strength or unilateral atrophy.
Another factor contemplated by the Board related to a pinched nerve in Shipmon’s
neck. Shipmon has a preexisting pinched nerve in his neck, but Dr. Rodgers showed
no concern about the pinched nerve. Dr. Rodgers was also unwilling to consider
placing Shipmon in a less severe Category. For these reasons, the Board rejected
Dr. Rodgers’s permanent impairment rating, finding that “[t]he reasons supporting
his ratings are questionable and his actual rating appears to greatly overstate the
degree of permanent impairment related to the work accident.”2 The Board then
denied Shipmon’s petition.
(6) Shipmon appealed to the Superior Court, which affirmed the Board’s
decision.
(7) Generally, this Court’s review of an Industrial Accident Board decision
is “limited to a determination of whether there is substantial evidence to support the
2 Corrected Opening Br. Ex. B at 19.
4 Board’s findings.”3 “Substantial evidence means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”4 On appeal,
errors of law are reviewed de novo.5
(8) Shipmon’s first contention is that the Board erred by failing to award
him “permanent partial impairment after determining that he suffered permanent
limited function.”6 This argument is based upon the following statements made by
the Board in its decision: “The Board found Claimant highly credible. He appears
to have permanent limited function but minimally. . . . The Board accepts Claimant’s
testimony that as a result of the work-related neck injury, he has had to modify his
body mechanics to some degree.”7 These findings, Shipmon argues, require some
award for permanent partial impairment under 19 Del. C. § 2326(g), which provides,
in pertinent part, that “[t]he Board shall award proper and equitable compensation
for the loss of . . . or loss of use of any member or part of the body.” The Board
rejected this argument by finding that “it is not only Claimant’s burden of proving
he is permanently impaired as a result of the work accident, but he has the burden of
proving his permanent impairment is the degree he alleges as a result of the work
3 Betts v. Townsends, Inc., 765 A.2d 531, 533 (Del. 2000). 4 Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994) (internal quotation marks omitted). 5 Arrants v. Home Depot, 65 A.3d 601, 605 (Del. 2013). 6 Corrected Opening Br. at 9-12. 7 Corrected Opening Br. Ex. B at 17.
5 accident – twenty-two percent.”8
(9) Shipmon relies, in part, on this Court’s decision in Turbitt v. Blue Hen
Lines, Inc., wherein we stated, “[i]t is the duty of the Board, not a physician, to fix a
percentage to a claimant’s disability based on the evidence before it.”9 In that case,
the only medical testimony was from a doctor who testified that the claimant had a
34% permanent partial impairment of the spine.10 The Board, “relying primarily on
its own experience in these matters”11 rejected the doctor’s testimony and found that
the claimant’s permanent partial impairment was 15%. We reversed, reasoning that
“[w]hatever ‘institutional experience’ or administrative expertise the Board
possesses may be used as a tool for evaluating evidence but not a source for creating
evidence.”12 The case does not support Shipmon’s proposition that the Board may
assign a specific degree of permanent partial impairment based upon its own
institutional experience in the absence of any evidence in the record to support such
a finding.
(10) Shipmon also relies, in part, on the Superior Court’s decision in Butler
v. Ryder M.L.S., in which the court explained that the Board is responsible for
“assign[ing] a percentage to the [claimant’s] disability.”13 In that case, Dr. Rodgers
8 Id. at 17-18. 9 711 A.2d 1214, 1215 (Del. 1998). 10 Id. 11 Id. 12 Id. at 1216. 13 1999 WL 167734, at *2 (Del. Super. Feb. 1, 1999).
6 testified that the claimant had a 20% permanent partial impairment to her lower right
extremity.14 He based his opinion on the AMA Guides, and in making his
determination, considered the claimant’s meniscectomy, mild arthritis, and
chondromalacia.15 Dr. Case testified that the claimant had a 9% permanency rating
for all her injuries.16 The Board found the testimony of Dr. Rodgers to be more
credible than the testimony of Dr. Case, but also found that no assignment of
impairment should be given based on the chondromalacia because it was no longer
specifically mentioned in the most recent edition of the AMA Guides.17 The claimant
complained that the Board should “not have simply deferred to the AMA Guides.”18
From the Board’s analysis, it appears that the Board’s decision to award a 14%
impairment was based upon the AMA Guides after removing the chondromalacia
from consideration. It does not appear that the Board arbitrarily decided on an
impairment rating or based a rating on its “institutional experience,”19 with no
evidence in the record to support its decision. This case does not help Shipmon.
(11) The Board is not required to, and should not, make a determination that
a permanent partial impairment is of a certain degree when there is no evidence in
the record to support that finding. Shipmon’s first argument is therefore rejected.
14 Id. at *1. 15 Id. 16 Id. 17 Id. 18 Id. 19 Turbitt v. Blue Hen Lines, Inc., 711 A.2d 1214, 1216 (Del. 1998).
7 (12) Shipmon’s second contention is that the Board’s decision is not
supported by substantial evidence. The gist of this argument is that the there is not
substantial evidence to support the Board’s finding that Dr. Rodgers’s medical
opinions were not credible. However, the Board explained in some detail the
evidentiary basis upon which it concluded that his medical opinions were not
credible. The evidentiary factors the Board considered are summarized above. The
testimony of Dr. Fedder and Dr. Yalamanchili provides substantial evidence to
support the Board’s denial of Shipmon’s petition.
NOW, THEREFORE, it is the order of the Court that the judgment of the
Superior Court is affirmed.
BY THE COURT:
/s/ James T. Vaughn, Jr. Justice