IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE/DART, ) ) Employer-Appellant, ) ) v. ) C.A. No.: N18A-04-004 ALR ) LYNETTE REID, ) ) Claimant-Appellee. )
Submitted: October 30, 2018 Decided: January 9, 2019
On Appeal from the Industrial Accident Board AFFIRMED
ORDER
This is an appeal from the Industrial Accident Board (“IAB”). Upon
consideration of the facts, arguments, and legal authorities set forth by the parties;
statutory and decisional law; and the entire record in this case, the Court hereby finds
as follows:
1. Claimant-Appellee, Lynette Reid (“Claimant”) sustained an injury to
her right shoulder on August 10, 2017, while working as a bus cleaner for Appellant-
Employer, the State of Delaware/DART (“Employer”). Claimant sustained the
injury when she lifted a trash bag out of a garbage bin.
2. Following the incident, Claimant was taken to Wilmington Hospital for
tests and X-rays. Claimant was instructed to follow up with an orthopedist. 3. On August 11, 2017, Claimant sought treatment with Michael
Pushkarewicz, M.D. (“Dr. Pushkarewicz”), an orthopedic surgeon. Dr.
Pushkarewicz placed Claimant on total disability pending a diagnosis for Claimant’s
injury. An MRI on August 24, 2017 revealed tearing in the labrum and tendon of
Claimant’s right shoulder. The treatment recommended by Dr. Pushkarewicz was
cortisone injections and physical therapy.
4. Claimant received an injection in her right shoulder on September 7,
2017. Dr. Pushkarewicz released Claimant to light duty work that same day.
5. After leaving from her appointment with Dr. Pushkarewicz on
September 7, 2017, Claimant was involved in a motor vehicle accident. As a result
of the accident, Claimant experienced body aches, back aches, and an aggravation
of her right shoulder injury. Dr. Pushkarewicz’s treatment recommendations for
Claimant’s work-related injury did not change after the accident. Due to the motor
vehicle accident, Claimant did not return to work until November 25, 2017.
6. Claimant received a second cortisone injection on January 8, 2018.
7. On September 28, 2017, Claimant filed a Petition to Determine
Compensation Due (“Petition”) with the IAB, seeking acknowledgement of the
accident and injury, medical expenses, and a closed period of total disability benefits
from August 11, 2017 through September 7, 2017.
2 8. Employer disputes that an accident or injury occurred at the workplace
on August 10, 2017.
9. A hearing was held on Claimant’s Petition on February 1, 2018
(“Hearing”). During the Hearing, the IAB considered the testimony of (1) Claimant;
(2) Claimant’s expert, Dr. Pushkarewicz; and (3) Employer’s expert, Gregory
Tadduni, M.D. (“Dr. Tadduni”), an orthopedic surgeon who evaluated Claimant on
December 7, 2017 at Employer’s request. The IAB also considered video
surveillance footage from Employer’s facility taken on August 10, 2017.
10. Claimant’s expert, Dr. Pushkarewicz, opined that Claimant sustained
an injury as a result of the August 10, 2017 work incident. Claimant reported to Dr.
Pushkarewicz that she was in immediate pain and Dr. Pushkarewicz considers this
to be strong evidence of an injury. Dr. Pushkarewicz testified that the tears shown
on Claimant’s August 24, 2017 MRI are normally degenerative, caused by “falling
on your outstretched arm,” or by “trying to lift something which is too heavy.”
Although Claimant’s prior medical records revealed a history of neck pain across
Claimant’s shoulder blades, in Dr. Pushkarewicz’s opinion, these references are
symptoms emanating from a cervical spine condition. Claimant had never been
diagnosed with a shoulder joint condition before August 10, 2017. Dr. Pushkarewicz
opined that, but for the incident on August 10, 2017, Claimant would not have
3 sustained tearing in her right shoulder, would not have required two injections, and
would not have been placed on total disability.
11. After reviewing medical records and evaluating Claimant on December
7, 2017, Dr. Tadduni found that Claimant had a significant history of cervical and
lumbar spine symptoms as a result of motor vehicle and previous work-related
accidents. Dr. Tadduni noted shoulder complaints in medical records pre-dating the
August 10, 2017 work accident. Dr. Tadduni agrees with Dr. Pushkarewicz that
Claimant’s August 24, 2017 MRI reveals two tears in Claimant’s right shoulder.
Claimant did not report feeling immediate pain to Dr. Tadduni. Dr. Tadduni testified
that, in his opinion, Claimant would not have been totally disabled between the date
of the alleged work incident through the date of Claimant’s motor vehicle accident
on September 7, 2017. Finally, Dr. Tadduni opined that the conservative medical
treatment has been reasonable, necessary, and related to the injury.
12. By Order dated March 29, 2018, the IAB granted Claimant’s Petition
(“IAB Decision”), concluding that Claimant sustained a compensable injury in the
August 10, 2017 work accident, and therefore is entitled to payment of medical
expenses and total disability benefits.
13. Employer appeals from the IAB Decision, seeking reversal on the basis
that the IAB committed two errors. First, Employer contends that the IAB
mischaracterized the opinion of Dr. Tadduni when it found that Dr. Tadduni agreed
4 that Claimant injured her right shoulder in a work-related accident on August 10,
2017. Second, Employer contends that the IAB improperly reconciled Claimant’s
inconsistent statements made to treating medical providers regarding whether
Claimant felt immediate pain following the alleged injury. Employer argues that the
IAB Decision finding that Claimant sustained a right shoulder injury on August 10,
2017, was an abuse of discretion and not supported by substantial evidence.
14. Claimant opposes Employer’s appeal, arguing that substantial evidence
supports the IAB Decision.
15. On appeal from an IAB decision, this Court’s role is limited to
determining whether the IAB’s conclusions are supported by substantial evidence
and free from legal error.1 Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”2 This Court
reviews the IAB’s legal determinations de novo.3 “Absent errors of law, however,
the standard of appellate review of the IAB’s decision is abuse of discretion.”4
1 Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965). 2 Roos Foods v. Guardado, 2016 WL 6958703, at *3 (Del. Nov. 29, 2016); Olney v. Cooch, 42 A.2d 610, 614 (Del. 1981). 3 Guardado, 2016 WL 6958703, at *3; Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006). 4 Glanden, 918 A.2d at 1101 (citing Digiacomo v. Bd. of Pub. Educ., 507 A.2d 542, 546 (Del. 1986)).
5 16. It is well-established that the IAB may reconcile competing medical
testimony by crediting the opinion of one expert over another.5 Where the IAB elects
to adopt one expert opinion over another, the adopted opinion constitutes substantial
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE/DART, ) ) Employer-Appellant, ) ) v. ) C.A. No.: N18A-04-004 ALR ) LYNETTE REID, ) ) Claimant-Appellee. )
Submitted: October 30, 2018 Decided: January 9, 2019
On Appeal from the Industrial Accident Board AFFIRMED
ORDER
This is an appeal from the Industrial Accident Board (“IAB”). Upon
consideration of the facts, arguments, and legal authorities set forth by the parties;
statutory and decisional law; and the entire record in this case, the Court hereby finds
as follows:
1. Claimant-Appellee, Lynette Reid (“Claimant”) sustained an injury to
her right shoulder on August 10, 2017, while working as a bus cleaner for Appellant-
Employer, the State of Delaware/DART (“Employer”). Claimant sustained the
injury when she lifted a trash bag out of a garbage bin.
2. Following the incident, Claimant was taken to Wilmington Hospital for
tests and X-rays. Claimant was instructed to follow up with an orthopedist. 3. On August 11, 2017, Claimant sought treatment with Michael
Pushkarewicz, M.D. (“Dr. Pushkarewicz”), an orthopedic surgeon. Dr.
Pushkarewicz placed Claimant on total disability pending a diagnosis for Claimant’s
injury. An MRI on August 24, 2017 revealed tearing in the labrum and tendon of
Claimant’s right shoulder. The treatment recommended by Dr. Pushkarewicz was
cortisone injections and physical therapy.
4. Claimant received an injection in her right shoulder on September 7,
2017. Dr. Pushkarewicz released Claimant to light duty work that same day.
5. After leaving from her appointment with Dr. Pushkarewicz on
September 7, 2017, Claimant was involved in a motor vehicle accident. As a result
of the accident, Claimant experienced body aches, back aches, and an aggravation
of her right shoulder injury. Dr. Pushkarewicz’s treatment recommendations for
Claimant’s work-related injury did not change after the accident. Due to the motor
vehicle accident, Claimant did not return to work until November 25, 2017.
6. Claimant received a second cortisone injection on January 8, 2018.
7. On September 28, 2017, Claimant filed a Petition to Determine
Compensation Due (“Petition”) with the IAB, seeking acknowledgement of the
accident and injury, medical expenses, and a closed period of total disability benefits
from August 11, 2017 through September 7, 2017.
2 8. Employer disputes that an accident or injury occurred at the workplace
on August 10, 2017.
9. A hearing was held on Claimant’s Petition on February 1, 2018
(“Hearing”). During the Hearing, the IAB considered the testimony of (1) Claimant;
(2) Claimant’s expert, Dr. Pushkarewicz; and (3) Employer’s expert, Gregory
Tadduni, M.D. (“Dr. Tadduni”), an orthopedic surgeon who evaluated Claimant on
December 7, 2017 at Employer’s request. The IAB also considered video
surveillance footage from Employer’s facility taken on August 10, 2017.
10. Claimant’s expert, Dr. Pushkarewicz, opined that Claimant sustained
an injury as a result of the August 10, 2017 work incident. Claimant reported to Dr.
Pushkarewicz that she was in immediate pain and Dr. Pushkarewicz considers this
to be strong evidence of an injury. Dr. Pushkarewicz testified that the tears shown
on Claimant’s August 24, 2017 MRI are normally degenerative, caused by “falling
on your outstretched arm,” or by “trying to lift something which is too heavy.”
Although Claimant’s prior medical records revealed a history of neck pain across
Claimant’s shoulder blades, in Dr. Pushkarewicz’s opinion, these references are
symptoms emanating from a cervical spine condition. Claimant had never been
diagnosed with a shoulder joint condition before August 10, 2017. Dr. Pushkarewicz
opined that, but for the incident on August 10, 2017, Claimant would not have
3 sustained tearing in her right shoulder, would not have required two injections, and
would not have been placed on total disability.
11. After reviewing medical records and evaluating Claimant on December
7, 2017, Dr. Tadduni found that Claimant had a significant history of cervical and
lumbar spine symptoms as a result of motor vehicle and previous work-related
accidents. Dr. Tadduni noted shoulder complaints in medical records pre-dating the
August 10, 2017 work accident. Dr. Tadduni agrees with Dr. Pushkarewicz that
Claimant’s August 24, 2017 MRI reveals two tears in Claimant’s right shoulder.
Claimant did not report feeling immediate pain to Dr. Tadduni. Dr. Tadduni testified
that, in his opinion, Claimant would not have been totally disabled between the date
of the alleged work incident through the date of Claimant’s motor vehicle accident
on September 7, 2017. Finally, Dr. Tadduni opined that the conservative medical
treatment has been reasonable, necessary, and related to the injury.
12. By Order dated March 29, 2018, the IAB granted Claimant’s Petition
(“IAB Decision”), concluding that Claimant sustained a compensable injury in the
August 10, 2017 work accident, and therefore is entitled to payment of medical
expenses and total disability benefits.
13. Employer appeals from the IAB Decision, seeking reversal on the basis
that the IAB committed two errors. First, Employer contends that the IAB
mischaracterized the opinion of Dr. Tadduni when it found that Dr. Tadduni agreed
4 that Claimant injured her right shoulder in a work-related accident on August 10,
2017. Second, Employer contends that the IAB improperly reconciled Claimant’s
inconsistent statements made to treating medical providers regarding whether
Claimant felt immediate pain following the alleged injury. Employer argues that the
IAB Decision finding that Claimant sustained a right shoulder injury on August 10,
2017, was an abuse of discretion and not supported by substantial evidence.
14. Claimant opposes Employer’s appeal, arguing that substantial evidence
supports the IAB Decision.
15. On appeal from an IAB decision, this Court’s role is limited to
determining whether the IAB’s conclusions are supported by substantial evidence
and free from legal error.1 Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”2 This Court
reviews the IAB’s legal determinations de novo.3 “Absent errors of law, however,
the standard of appellate review of the IAB’s decision is abuse of discretion.”4
1 Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965). 2 Roos Foods v. Guardado, 2016 WL 6958703, at *3 (Del. Nov. 29, 2016); Olney v. Cooch, 42 A.2d 610, 614 (Del. 1981). 3 Guardado, 2016 WL 6958703, at *3; Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006). 4 Glanden, 918 A.2d at 1101 (citing Digiacomo v. Bd. of Pub. Educ., 507 A.2d 542, 546 (Del. 1986)).
5 16. It is well-established that the IAB may reconcile competing medical
testimony by crediting the opinion of one expert over another.5 Where the IAB elects
to adopt one expert opinion over another, the adopted opinion constitutes substantial
evidence for the purpose of appellate review.6 This Court “does not sit as a trier of
fact with authority to weigh the evidence, determine questions of credibility, and
make its own factual findings and conclusions.”7 “[T]he sole function of the
Superior Court, as is the function of [the Delaware Supreme Court] on appeal, is to
determine whether or not there was substantial evidence to support the finding of the
Board, and, if it finds such in the record, to affirm the findings of the Board.”8
17. The IAB found substantial evidence to support: (1) Claimant sustained
a compensable right shoulder injury in a work-related accident on August 10, 2017;
(2) the medical treatment for Claimant’s right shoulder was reasonable, necessary,
and causally related to the injury; and (3) it was reasonable for Dr. Pushkarewicz to
place Claimant on total disability from August 11, 2017 through September 7, 2017
while Claimant underwent testing to diagnose her shoulder injury and received a
cortisone injection. A review of the record reveals that both Dr. Pushkarewicz and
5 Whitney v. Bearing Const., Inc., 2014 WL 2526484, at *2 (Del. May 30, 2014); Steppi v. Conti Elec., Inc., 2010 WL 718012, at *3 (Del. Mar. 2, 2010). 6 Munyan, 909 A.2d at 136; Bacon v. City of Wilmington, 2014 WL 1268649, at *2 (Del. Super. Jan. 31, 2014). 7 Christiana Care Health Servs. v. Davis, 127 A.2d 391, 394 (Del. 2015); Johnson, 213 A.2d at 66. 8 Johnson, 213 A.2d at 66.
6 Dr. Tadduni were in agreement as to the IAB’s first two findings. As to the third,
by accepting Dr. Pushkarewicz’s opinion that it was reasonable to place Claimant
on total disability, the IAB made a permissible credibility determination in order to
reconcile competing medical theories.9 It is not the duty of this Court to weigh the
evidence or make credibility determinations in the context of an administrative
appeal.10 Rather, “[t]he function of reconciling inconsistent testimony or
determining credibility is exclusively reserved for the [IAB].”11
18. This Court is satisfied that there is sufficient record evidence to support
the IAB’s factual conclusions and that the IAB Decision is free from legal error.
NOW, THEREFORE, this 9th day of January, 2019, the March 29, 2018
Industrial Accident Board Decision granting Claimant’s Petition to Determine
Compensation Due is hereby AFFIRMED.
IT IS SO ORDERED.
Andrea L. Rocanelli ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____
The Honorable Andrea L. Rocanelli
9 See Whitney, 2014 WL 2526484, at *2; Steppi, 2010 WL 718012, at *3. 10 Davis, 127 A.2d at 394; Johnson, 213 A.2d at 66. 11 Simmons v. Delaware State Hosp., 660 A.2d 384, 388 (Del. 1995) (citing Breeding v. Contractors—One—Inc., 549 A.2d 1102, 1106 (Del. 1988)); Martin v. State, 2015 WL 1548877, at *3 (Del. Super. Mar. 27, 2015).