IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
KHADIJA ZAKARIA, ) ) Claimant Below – Appellant, ) ) C.A. No.: N20A-12-005 FJJ v. ) ) CHRISTIANA CARE HEALTH ) SERVICES, ) ) Employer Below – Appellee. )
Submitted: March 31, 2021 Decided: April 15, 2021
UPON CONSIDERATION OF APPELLANTS APPEAL OF THE DECISION OF THE INDUSTRIAL ACCIDENT BOARD, AFFIRMED
OPINION AND ORDER
Heather A Long, Esquire, Kimmel Carter Roman Peltz & O'Neill PA, 56 W. Main Street, Newark, DE 19702, Attorneys for Claimant Below – Appellant.
Maria Newill, Esquire, Heckler & Frabizzio, The Corporate Plaza, 800 Delaware Ave., Suite 200, P.O. Box 128, Wilmington, DE 19899-0128, Attorneys for Employer Below - Appellee.
Jones, J. INTRODUCTION
Appellant/Claimant, Khadija Zakaria (“Khadija”) timely appeals a decision
of the Industrial Accident Board (“IAB” or “Board”) that denied her Petition for
workman’s compensation benefits. The Board found that Khadija failed to meet
her burden in establishing that her cervical condition, corresponding need for
treatment, and for period of total disability are compensable against her employer,
Christiana Health Care Services. It appears to the Court that:
On September 24, 2019 Khadija filed a Petition to Determine Compensation
Due against her employer with the IAB, Christiana Health Care Services
(“Employer”). Claimant works as an operating room nurse for the Employer. In
her Petition, Claimant sought acknowledgement of the compensability of injuries
to her cervical spine allegedly suffered from two work accidents: one occurring
on November 4, 2017 and the other on June 21, 2018. Employer contested these
allegations, arguing that claimant’s condition was an actively symptomatic
degenerative condition which was unrelated to either alleged work accident and
denied compensability.
On November 6, 2020 the IAB conducted a hearing on the matter. At the
hearing the Board heard from two expert witnesses, Dr. Zaslavasky and Dr.
Gelman for Claimant and Employer, respectively. Dr. Zaslavasky testified that
claimant’s cervical spine injury and treatment stemming therefrom was
reasonable, necessary, and related to the work incidents of November 4, 2017 and
2 Junes 2, 2018. Zaslavasky opined that at a minimum the two incidents at least
aggravated the Claimant's preexisting condition. Dr. Gelman testified for the
Employer. After a review of the Claimant’s medical records and a physical
examination, he concluded that Claimant suffered from a long standing, chronic
degenerative process that has been actively symptomatic for years, well predating
her employment with Employer. In addition to the two doctors, the Claimant
testified and the Employer presented two coworkers as well as the workman’s
compensation adjuster.
Following the hearing the Board issued its decision on November 17, 2020.
The Board found that Claimant’s narrative was “inconsistent with what she
reported to even her own treating doctors” and that there was “little to substantiate
that anything happened to Claimant at work.” The Board found Claimant’s
credibility lacking and was “troubled by Claimant’s failure to consistently and
accurately report her own history.” The Board denied Claimant’s petition and
concluded that Claimant had failed to demonstrate by a preponderance of evidence
that she suffered any work-related injury or event that can be said to have
aggravated, accelerated or in combination with her degenerative infirmity
produced the disability for which Claimant has treated on and off for years.
On December 5, 2020 Claimant filed a timely notice of appeal. On March
1, 2021, Claimant filed her Opening Brief. On March 18, 2021 Employer filed
3 its Answering Brief. Claimant filed her Reply Brief in response on March 30,
2021. The mater is now ripe for review.
STANDARD OF REVIEW
On an appeal from a Board decision, the Superior Court does not “weigh
the evidence, determine questions of credibility, and make its own factual findings
and conclusions.”1 Those functions are exclusively held by the Board.2 In
considering an appeal from the Board, this Court’s review is limited to correcting
errors of law and a determination of whether substantial evidence3 in the record
supports the Board’s decision.4 “Absent an abuse of discretion or an error of law,
a Board decision that is supported by substantial evidence will not be overturned
by the Court.”5 Issues raised on appeal involving exclusively a question of law
are reviewed de novo.6 The Court will evaluate the record “in the light most
favorable to the prevailing party below.”7
1 Johnson v. Chrysler Corp.,213 A.3d 64, 66 (Del. 1965); See Christiana Care Health Servs. v. Davis, 127 A.3 391, 394 (Del. 2015). 2 Noel-Liszkiewicz v. La-Z-Boy, 68 A.3d 188, 191 (Del. 2013) (citing Breeding v. Contractors-One-Inc., 549 A.2d 1102, 110 (Del. 1988)). 3 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) 4 Maracle v. Int’l Game Tech., No. CIV.A. 09A-11-002PLA, 2010 WL 541199, at *2 (Del. Super. Ct. Feb 1, 2010) (citing Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 342 5 Miller v. Delaware Psychiatric Ctr., No.: CIV.A. N12A-06007DCS, 2013 WL 1281850, at *7 (Del. Super. Ct. Mar. 28, 2013) (citing Stanley v. Kraft Foods, Inc., 2009 WL 2401212, *2 (Del. Super. Ct. Mar. 24, 2008). 6 See Vincent v. E. Shore Markets, 970 A.2d 160, 163 (Del. 2009) (quoting Baughan v Wal-mart Stores, 947 A.2d 1120, 2008 WL 1930576, at *2 (Del. 2008)(TABLE); citing Duvall v. Charles Connell Roofing, 564 A.2d 1132 (Del.1989)). 7 Miller, 2013 WL 1281850, at *7 (citing General Motors Corp. v. Guy, 1991 WL 191491, *3 (Del. Super. Ct. Aug. 16, 1991)).
4 III. DISCUSSION
When an employee files a petition to determine the compensability of an
alleged work-related injury, the employee has the burden of proving causation by
a preponderance of evidence.8 Conflicting expert testimony is often the primary
focus of the claim. As with any witness, the Board has the authority and discretion
to “determine the credibility of the witness as well as the appropriate weight to
accord witness testimony and the reasonable inferences to be drawn therefrom.”9
When “there is contradictory expert testimony supported by substantial evidence,
it is within the [Board’s] discretion to accept the testimony of one physician over
another.”10 In exercising this discretion, the Board is “free to reject, in full or in
part, the testimony of one physician over conflicting testimony.”11 In doing so,
the Board must provide clearly articulated factual findings.12 On appeal, the
Superior Court does not have the authority to encroach upon the Board’s discretion
8 Goicuria v. Kauffman’s Furniture, 706 A.2d 26, 1998 WL 67720, at *1 (Del. 1998) (TABLE). 9 Miller, 2013 WL 1281850, at *8 (citing Saunders v. DaimlerChrysler, Corp., 2006 WL 390098, *4 (Del.Feb. 17, 2006); Christiana Care Health Sys., VNA v. Taggart, 2004 WL 692640, *12 (Del.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
KHADIJA ZAKARIA, ) ) Claimant Below – Appellant, ) ) C.A. No.: N20A-12-005 FJJ v. ) ) CHRISTIANA CARE HEALTH ) SERVICES, ) ) Employer Below – Appellee. )
Submitted: March 31, 2021 Decided: April 15, 2021
UPON CONSIDERATION OF APPELLANTS APPEAL OF THE DECISION OF THE INDUSTRIAL ACCIDENT BOARD, AFFIRMED
OPINION AND ORDER
Heather A Long, Esquire, Kimmel Carter Roman Peltz & O'Neill PA, 56 W. Main Street, Newark, DE 19702, Attorneys for Claimant Below – Appellant.
Maria Newill, Esquire, Heckler & Frabizzio, The Corporate Plaza, 800 Delaware Ave., Suite 200, P.O. Box 128, Wilmington, DE 19899-0128, Attorneys for Employer Below - Appellee.
Jones, J. INTRODUCTION
Appellant/Claimant, Khadija Zakaria (“Khadija”) timely appeals a decision
of the Industrial Accident Board (“IAB” or “Board”) that denied her Petition for
workman’s compensation benefits. The Board found that Khadija failed to meet
her burden in establishing that her cervical condition, corresponding need for
treatment, and for period of total disability are compensable against her employer,
Christiana Health Care Services. It appears to the Court that:
On September 24, 2019 Khadija filed a Petition to Determine Compensation
Due against her employer with the IAB, Christiana Health Care Services
(“Employer”). Claimant works as an operating room nurse for the Employer. In
her Petition, Claimant sought acknowledgement of the compensability of injuries
to her cervical spine allegedly suffered from two work accidents: one occurring
on November 4, 2017 and the other on June 21, 2018. Employer contested these
allegations, arguing that claimant’s condition was an actively symptomatic
degenerative condition which was unrelated to either alleged work accident and
denied compensability.
On November 6, 2020 the IAB conducted a hearing on the matter. At the
hearing the Board heard from two expert witnesses, Dr. Zaslavasky and Dr.
Gelman for Claimant and Employer, respectively. Dr. Zaslavasky testified that
claimant’s cervical spine injury and treatment stemming therefrom was
reasonable, necessary, and related to the work incidents of November 4, 2017 and
2 Junes 2, 2018. Zaslavasky opined that at a minimum the two incidents at least
aggravated the Claimant's preexisting condition. Dr. Gelman testified for the
Employer. After a review of the Claimant’s medical records and a physical
examination, he concluded that Claimant suffered from a long standing, chronic
degenerative process that has been actively symptomatic for years, well predating
her employment with Employer. In addition to the two doctors, the Claimant
testified and the Employer presented two coworkers as well as the workman’s
compensation adjuster.
Following the hearing the Board issued its decision on November 17, 2020.
The Board found that Claimant’s narrative was “inconsistent with what she
reported to even her own treating doctors” and that there was “little to substantiate
that anything happened to Claimant at work.” The Board found Claimant’s
credibility lacking and was “troubled by Claimant’s failure to consistently and
accurately report her own history.” The Board denied Claimant’s petition and
concluded that Claimant had failed to demonstrate by a preponderance of evidence
that she suffered any work-related injury or event that can be said to have
aggravated, accelerated or in combination with her degenerative infirmity
produced the disability for which Claimant has treated on and off for years.
On December 5, 2020 Claimant filed a timely notice of appeal. On March
1, 2021, Claimant filed her Opening Brief. On March 18, 2021 Employer filed
3 its Answering Brief. Claimant filed her Reply Brief in response on March 30,
2021. The mater is now ripe for review.
STANDARD OF REVIEW
On an appeal from a Board decision, the Superior Court does not “weigh
the evidence, determine questions of credibility, and make its own factual findings
and conclusions.”1 Those functions are exclusively held by the Board.2 In
considering an appeal from the Board, this Court’s review is limited to correcting
errors of law and a determination of whether substantial evidence3 in the record
supports the Board’s decision.4 “Absent an abuse of discretion or an error of law,
a Board decision that is supported by substantial evidence will not be overturned
by the Court.”5 Issues raised on appeal involving exclusively a question of law
are reviewed de novo.6 The Court will evaluate the record “in the light most
favorable to the prevailing party below.”7
1 Johnson v. Chrysler Corp.,213 A.3d 64, 66 (Del. 1965); See Christiana Care Health Servs. v. Davis, 127 A.3 391, 394 (Del. 2015). 2 Noel-Liszkiewicz v. La-Z-Boy, 68 A.3d 188, 191 (Del. 2013) (citing Breeding v. Contractors-One-Inc., 549 A.2d 1102, 110 (Del. 1988)). 3 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) 4 Maracle v. Int’l Game Tech., No. CIV.A. 09A-11-002PLA, 2010 WL 541199, at *2 (Del. Super. Ct. Feb 1, 2010) (citing Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 342 5 Miller v. Delaware Psychiatric Ctr., No.: CIV.A. N12A-06007DCS, 2013 WL 1281850, at *7 (Del. Super. Ct. Mar. 28, 2013) (citing Stanley v. Kraft Foods, Inc., 2009 WL 2401212, *2 (Del. Super. Ct. Mar. 24, 2008). 6 See Vincent v. E. Shore Markets, 970 A.2d 160, 163 (Del. 2009) (quoting Baughan v Wal-mart Stores, 947 A.2d 1120, 2008 WL 1930576, at *2 (Del. 2008)(TABLE); citing Duvall v. Charles Connell Roofing, 564 A.2d 1132 (Del.1989)). 7 Miller, 2013 WL 1281850, at *7 (citing General Motors Corp. v. Guy, 1991 WL 191491, *3 (Del. Super. Ct. Aug. 16, 1991)).
4 III. DISCUSSION
When an employee files a petition to determine the compensability of an
alleged work-related injury, the employee has the burden of proving causation by
a preponderance of evidence.8 Conflicting expert testimony is often the primary
focus of the claim. As with any witness, the Board has the authority and discretion
to “determine the credibility of the witness as well as the appropriate weight to
accord witness testimony and the reasonable inferences to be drawn therefrom.”9
When “there is contradictory expert testimony supported by substantial evidence,
it is within the [Board’s] discretion to accept the testimony of one physician over
another.”10 In exercising this discretion, the Board is “free to reject, in full or in
part, the testimony of one physician over conflicting testimony.”11 In doing so,
the Board must provide clearly articulated factual findings.12 On appeal, the
Superior Court does not have the authority to encroach upon the Board’s discretion
8 Goicuria v. Kauffman’s Furniture, 706 A.2d 26, 1998 WL 67720, at *1 (Del. 1998) (TABLE). 9 Miller, 2013 WL 1281850, at *8 (citing Saunders v. DaimlerChrysler, Corp., 2006 WL 390098, *4 (Del.Feb. 17, 2006); Christiana Care Health Sys., VNA v. Taggart, 2004 WL 692640, *12 (Del. Super. Ct. Mar. 18, 2004)(citing Clemente v. Diamond State Port Co., 831 A.2d 870, 878 (Del. 2000))). 10 Butler v. Speakman Co., 615 A.2d 530 (Del. 1992); see DiSabatino Bros. v. Wortman, 453 A.2d 102, 106 (Del. 1982) (citing General Motors v. Veasy, 271 A.2d 1074, 1076 (Del. 1977)) (finding that although the evidence was in conflict, that the substantial evidence standard was satisfied where the Board “was free to accept the testimony” of one doctor, the employer’s expert, over contrary opinion testimony); see also Standard Distrib. C. Through Pennsylvania Mfrs. Ass’n Ins. Co. v. Nally, 630 A.2d 640, 646 (Del. 1993) (“[T]he Board was entitled to accept the testimony of one medical expert over the views of another.”); see also Sweeney v. Wal-Mart, No. CV N12A-06-008 ALR, 2013 WL 3975149, at *4 (Del. Super. Ct. July 31, 2013) (“it is well-established that, in the case of conflicting expert testimony, the IAB is free to accept the opinion of one medical expert over another.”). 11 Turbitt v. Blue Hen Lines, 711 A.2d 1214, 1215 (Del. 1998). 12 See Sweene, 2013 WL 3975149, at *5 (citing Lindsay v. Chrysler Corp., 1994 WL 750345, *1, *3 (Del. Super. Ct. Dec. 7, 1994)) (The Superior Court found that reversal of a Board decision is warranted where “the Board’s findings … amounted to a single paragraph in which the Board simply stated that it found one expert more credible than another.”
5 in making these factual findings, and must accept such findings if sufficient facts
exist in the record.13
The Board wrote that it was “troubled by claimant’s failure to consistently
and accurately report her own history… [It is] very troubling as one looks to
claimant’s credibility to carry the day and provide the nexus for her condition and
treatment to her work.” Plaintiff’s credibility was the key issue before the Board.
There was substantial evidence justifying the Board’s conclusion based as to
claimant’s credibility. That evidence included:
Claimant admitted to prior treatment as early as 2016, for similar symptoms that she did not report to either her Employer when hired or initially to her treating doctor. She further admitted to joining Planet Fitness and regularly working out despite the alleged claims of work events. She testified to inconsistent reporting to various medical providers that she was seeing at the time. She confirms that on physical therapy intake notes for 6/6/18, she recorded prior history of right shoulder and upper extremity issues, needing assistance shopping, as well as reporting her injury was from an overhead press at the gym. She further confirmed that she missed three days of work for shoulder and neck pain, only days prior to the second 6/21/18 alleged work event.
The Board also heard from both expert witnesses. After reviewing all of
the evidence, the Board found Dr. Gelman more credible than Dr. Zaslavasky.
This conclusion was based in part on Claimant’s failure to consistently and
accurately report her history to Dr. Zaslavasky to the point where the doctor was
13 See Miller, 2013 WL 1281850, at *8 (citing Opportunity Ctr., Inc v. Jamison, 2007n WL 3262211, *3 (Del. May 24, 2007) (citing Johnson v. Chrysler Corp., 213 A.2d 64, 55 (Del. 1965); Christiana Care Health Sys., VNA v. Taggart, 2004 WL 692640, *12 (Del. Super. Ct. March. 18, 2004)).
6 at times unsure whether the Claimant was receiving physical therapy. This is
enough to constitute substantial evidence of the Board’s adoption of Dr. Gelman’s
testimony over Dr. Zaslavasky and this opinion constitutes substantial evidence
for purposes of appellate review.14
My role in this matter is limited. I must give the factual decisions of the
Board substantial deference. I have considered the record in a light most favorable
to the Board and I have resolved all doubts in the Board’s favor. I cannot retry the
case, reinterpret the evidence, or second guess the Board’s credibility
determination. Even had I wished to come to a different conclusion on the merits,
I cannot substitute my judgment for that of the Board.15
I find that there was substantial evidence to support the Board’s conclusions
and there are no errors of law. Having reached this conclusion, I AFFIRM the
decision of the Board and DENY claimant’s appeal.
IT IS SO ORDERED.
/s/ Francis J. Jones, Jr. Francis J. Jones, Jr., Judge
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14 Person-Gains v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009). 15 Warren v. Amstend Industries, Inc., 2020 WL 4582504 (Del. Super. 2020)