IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
COREY BERRY, :
:
Appellant, : K20A-08-002 JJC
:
v. :
:
MITRA QSR KNE LLC, DBA :
KENTUCKY FRIED CHICKEN, :
:
Appellee. :
Submitted: December 1, 2020
Decided: February 16, 2021
MEMORANDUM OPINION AND ORDER
Upon Consideration of Appellant’s Appeal from the Decision of
the Industrial Accident Board – AFFIRMED
James R. Donovan, Esquire, & Alexis N. Stombaugh, Esquire, Doroshow,
Pasquale, Krawitz & Bhaya, Dover, Delaware, Attorneys for the Appellant.
Joseph Andrews, Esquire, & Taylor E. Trapp, Esquire, Law Office of Joseph
Andrews, Dover, Delaware, Attorney for the Appellee.
Clark, J.
Appellant Corey Berry appeals an Industrial Accident Board (hereinafter
“IAB” or “Board”) decision in favor of MITRA QSR KNE LLC, dba Kentucky Fried
Chicken (hereinafter “KFC”). In his appeal, Mr. Berry contends that substantial
evidence did not support the IAB’s finding that no further compensation was due
because his injuries had resolved. For the reasons discussed below, the record
contains substantial evidence to support the Board’s findings. Accordingly, its
decision must be AFFIRMED.
FACTS OF RECORD AND PROCEDURAL BACKGROUND
On April 24, 2019, Mr. Berry fell at work. The parties stipulated that he
suffered a work injury. They did not agree, however, regarding the duration of Mr.
Berry’s disability, the extent of his injuries, or whether future intended treatment
would be reasonable, necessary, and related to the accident.1
Upon KFC’s petition to terminate benefits, the IAB held a virtual hearing on
June 30, 2020. It issued its written decision on July 9, 2020. The Court recognizes
significant evidence in the record that supported Mr. Berry’s claim. Namely, his
treating orthopedic surgeon, Dr. Zaslavsky, testified that Mr. Berry’s fall at KFC
caused cervical myelopathy, which will in turn require a future neck surgery. Mr.
Berry’s testimony, if believed by the Board, would have further supported that
opinion. Nevertheless, the Court focuses its review on whether substantial evidence
supported KFC’s petition to terminate benefits.
The IAB record included a stipulation, Mr. Berry’s testimony, and the
testimony of two medical experts offered through depositions. Dr. James Zaslavsky
1
While the parties stipulated prior to the IAB hearing that the Board should consider whether Mr.
Berry suffered back, leg, head, and cervical injuries, the record contained no expert evidence
substantiating an injury other than the neck injury that allegedly involved myelopathy. As a result,
the parties assume in their briefing that the only injury at issue is cervical myelopathy, and the
only treatment at issue is a future neck surgery. The Court has addressed the issues accordingly.
2
testified on Mr. Berry’s behalf as his treating orthopedic surgeon. Another
orthopedic surgeon, Dr. Lawrence Piccioni, testified as KFC’s defense medical
examiner.
At the hearing, Mr. Berry stated that he injured himself at work during an
unwitnessed slip and fall accident. He described that he landed knee first, hit his
right shoulder, and then hit his head on a door when he fell. Furthermore, Mr. Berry
stated that, after the accident, his supervisor instructed him to go home.
Nevertheless, he testified that he disregarded his supervisor’s instructions and went
to the hospital. At the hospital, he complained of shoulder pain but had no neck
complaints.
The record contains inconsistencies regarding who told Mr. Berry to go to the
emergency room on the day of the accident. Namely, Mr. Berry changed his
testimony after KFC’s counsel confronted him with a Kent General Hospital
(hereinafter “KGH”) medical record. In addition, the same record contains a
discrepancy regarding Mr. Berry’s description of the mechanism of injury when
compared to other accounts of his fall. Namely, Mr. Berry told his medical providers
and the defense medical examiner that he either did, or did not, strike his head in the
accident.
Thirteen days after his fall, on May 7, 2019, Mr. Berry attended a family
doctor appointment at Westside Family Healthcare. At that visit, he requested that
his doctor return him to full duty. Although the doctor declined to do so, she
released him to light-duty. In reliance on that release, Mr. Berry returned to work.
At some point after he returned to work, KFC terminated him for reasons unrelated
to the accident.
Mr. Berry next received an MRI on May 31, 2019. The MRI revealed diffuse
disc desiccation with loss of disc spaces between each of the C4 to C7 vertebra.
Neither party introduced the MRI report into evidence. Accordingly, the two
3
competing medical experts’ descriptions of the MRI’s findings comprise the record
regarding the study’s findings. On one hand, Dr. Zaslavsky testified that it showed
both degenerative changes and acute injuries, including severe central spinal cord
compression. On the other hand, Dr. Piccioni testified that the cervical findings
shown in the 2019 MRI resembled Mr. Perry’s eleven-year-old imaging study taken
at KGH on July 22, 2008.2 Furthermore, Dr. Piccioni testified that the 2019 MRI
revealed no conditions consistent with myelopathy. Rather, he testified that the 2019
study showed only degenerative changes -- again changes consistent with the July
2008 film. Finally, Dr. Piccioni discussed how the radiologist read the 2019 study.
According to Dr. Piccioni, the radiologist did not describe conditions consistent with
myelopathy in his report.
Mr. Berry began treatment with Dr. Zaslavsky in late June 2019 for neck pain
and extremity symptoms. Dr. Zaslavsky related those symptoms to the accident. At
the outset, Dr. Zaslavsky expressed his concern that a large disc bulge compressed
Mr. Berry’s spinal cord. At that same visit, Dr. Zaslavsky explained myelopathic
symptoms to Mr. Berry. He cautioned him to remain watchful regarding their
progressive nature.
Mr. Berry next visited Dr. Zaslavsky in August 2019. At that point, Mr. Berry
described decreased motor skills, grip weakness, and significant neck pain. By the
next visit, Dr. Zaslavsky had formally diagnosed Mr. Berry with myelopathy and
discussed potential future surgery. At a January 22, 2020 visit, Mr. Berry told Dr.
Zaslavsky that he wanted the surgery.
At the IAB hearing, Mr. Berry testified that he was unable to work because of
difficulty with balance, significant pain running from his neck down to his hip, and
the need for support when he walked. For support, he testified he needed a cane.
2
The record does not reveal whether the 2008 study was an MRI, Xray, or CT Scan.
4
Mr. Berry described spending his days sitting in his room smoking marijuana to
alleviate pain. Nevertheless, he acknowledged that he had no prescription for
medical marijuana and that Dr. Zaslavsky had told him to stop smoking it illegally.
His days further consisted of playing on his phone and playing video games.
Additionally, he testified that he could walk no farther than thirty yards and that his
longest walks were across the street with his wife’s assistance.
Mr. Berry said that he wanted the cervical surgery that Dr. Zaslavsky
recommended. He nevertheless remained open to trying other treatments. When
questioned by an IAB member regarding why he forwent recommended nerve block
injections, Mr. Berry stated that he refused them because he did not trust needles.
The record included two completely divergent expert opinions. One expert,
Dr. Zaslavsky, testified that the surgery was reasonable, necessary, and related to his
fall. Specifically, Dr. Zaslavsky testified that Mr. Berry described multiple
subjective symptoms consistent with myelopathy. He also testified that he, as Mr.
Berry’s treating physician, observed objective signs that supported that conclusion.
According to Dr. Zaslavsky, Mr. Berry’s myelopathy requires surgery. In summary,
Dr. Zaslavsky related Mr. Berry’s condition, ongoing total disability, and need for
future surgery to the accident. In fact, Dr. Zaslavsky felt that Mr. Perry’s condition
had progressed to the point that it would border on medical malpractice to not
recommend surgery.
In contrast, Dr. Piccioni opined that Mr. Berry suffered only a cervical
strain/sprain injury that had resolved by May 7, 2019, shortly after his fall. Dr.
Piccioni performed his defense medical examination on March 31, 2020. When
doing so, he was the last doctor to examine Mr. Berry prior to the IAB hearing on
June 30, 2020.
Dr. Piccioni’s testimony included reasonable grounds for the Board to have
accepted his opinion. First, he emphasized that, pursuant to his record review, Dr.
5
Zaslavsky was the only medical provider that recorded signs or symptom consistent
with myelopathy. Second, Dr. Piccioni observed no signs of myelopathy when he
examined Mr. Berry. Nor, according to Dr. Piccioni, did Mr. Berry report symptoms
consistent with that condition. In this regard, Dr. Piccioni emphasized that, because
myelopathy is progressive, the absence of signs or reported symptoms during his
examination would not be possible if the condition in fact existed. Third, Dr.
Piccioni opined, without objection, that Mr. Berry attempted to magnify and
exaggerate his symptoms at the examination. On cross-examination, Dr. Piccioni
reiterated his opinion that Mr. Berry was malingering and exaggerating. He
corroborated his opinion by observing that although Mr. Berry testified that he had
pervasive issues with balance and needed a cane to walk, he observed none of those
during the examination. In fact, he testified that Mr. Berry came to the appointment
without a cane.
The record also includes evidence of two incidents after the work injury. First,
Mr. Berry told his physical therapist that he fell from a friend’s cooler on August 30,
2019 and then suffered increased pain when walking. Furthermore, on September
4, 2019, Mr. Berry reported that he heard a loud pop after he turned his head to talk
to his wife. Notwithstanding the work accident and these two subsequent incidents,
Mr. Berry reported his neck to be only a “little sore” at an October 2019 physical
therapy appointment.
In its written decision, the Board cited “numerous examples of [Mr. Berry’s]
lack of credibility.” It focused on the inconsistency of his testimony when compared
to the statements attributed to him in his medical records. The IAB also focused on
his inconsistent descriptions of the mechanism of his injury. It also recited his
repeated choice to self-medicate with marijuana despite contrary instructions from
his treating physician. Finally, the Board considered Mr. Berry’s contention that he
6
refused injections because he feared needles. It found that claim to be incredible
given his stated willingness to undergo invasive cervical surgery.
Moreover, the Board accepted Dr. Piccioni’s opinions over Dr. Zaslavsky’s
opinions. Both experts agreed that absent myelopathy, any surgery for Mr. Berry
would be inappropriate. When the Board placed controlling weight on Dr. Piccioni’s
opinions, it inferred that if Mr. Berry in fact had myelopathy, (1) Dr. Piccioni would
have observed signs of myelopathy at the time of his March 31, 2020 exam, and (2)
Mr. Berry would have reported symptoms of myelopathy to Dr. Piccioni during that
examination. According to Dr. Piccioni, neither occurred.
After weighing the evidence, the IAB found that KFC owed Mr. Berry no
compensation for the fall for any point past May 7, 2019. Mr. Berry then filed this
appeal.
ARGUMENTS OF THE PARTIES
Mr. Berry challenges the Board’s findings regarding credibility. Specifically
he argues that after recognizing the totality of the Board’s errors, substantial
evidence does not support its decision. To substantiate this argument, he identifies
the following alleged errors: (1) the Board erred when finding that Mr. Berry’s
marijuana use made him less credible; (2) the Board improperly relied on common
experience when it inferred that Mr. Berry’s neck pain could have stemmed from
playing video games; (3) it erred when finding him less credible because he rejected
injections on one hand, while expressing a willingness to undergo an invasive neck
surgery on the other; and (4) it mistakenly found that Mr. Berry first mentioned his
neck symptoms on May 7, 2020 because he had mentioned them earlier on May 1,
2020. Finally, Mr. Berry contends that the Court owes the Board less deference
regarding its credibility findings because the Board conducted a virtual hearing.
7
In response, KFC argues that only the IAB, as the finder of fact, can decide
issues of credibility. KFC also highlights evidence that it alleges constitutes
substantial evidence in support of the Board’s decision. It emphasizes that the two
expert opinions in this case directly conflicted with one another. According to KFC,
it follows that because one of those expert’s opinions supported the Board’s decision
to terminate benefits, there is substantial evidence of record to support the Board’s
decision. Finally, it argues that the IAB lawfully adopted an emergency rule that
permits virtual hearings during the Covid-19 pandemic. KFC contends that the rule
does nothing to diminish the deference due the IAB regarding findings of credibility.
STANDARD OF REVIEW
KFC petitioned the IAB to terminate Mr. Berry’s compensation benefits.
Accordingly, the burden of proof at the hearing rested on KFC.3 When reviewing
the Board’s decision on appeal, the Superior Court reviews whether the decision
was supported by substantial evidence and whether the Board committed an error of
law.4 Substantial evidence means “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”5 It is “more than a scintilla but
less than a preponderance of the evidence.”6
Furthermore, on appeal, the Court views the facts in the light most favorable
to the prevailing party below.7 Moreover, the Court does not determine questions of
3
Walt v. Delaware Home & Hosp. for Chronically Ill, 2007 WL 1947370, at *2 (Del. July 5, 2007)
(TABLE).
4
Bullock v. K-Mart Corp., 1995 WL 339025, at *2 (Del. Super. May 5, 1995) (citing General
Motors v. Freeman, 164 A.2d 686, 688 (Del. 1960)); Murphy & Landon, P.A. v. Pernic, 121 A.3d
1215, 1221 (Del. 2015).
5
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Fed. Mar. Comm’n, 383
U.S. 607, 620 (1966)).
6
Washington v. Delaware Transit Corp., 226 A.3d 202, 210 (Del. 2020) (citation omitted).
7
Chudnofsky v. Edwards, 208 A.2d 516, 518 (Del. 1965).
8
credibility, or make its own factual findings.8 Absent an error of law, which would
be reviewed de novo, a decision of the IAB supported by substantial evidence must
be upheld unless the Board abused its discretion.9 The Board abuses its discretion
when its decision exceeds the bounds of reason in view of the circumstances.10
Finally, the Court gives significant weight to the IAB regarding its “application of
legal principles in the specialized context of our state’s workers’ compensation
scheme, because the IAB has the occasion to give life to that scheme on a weekly
basis in the many cases that come before it.”11
ANALYSIS
Mr. Berry’s arguments can be distilled into two parts. First, he argues that the
Board should have found him to be credible. Given that error, Mr. Berry argues that
there was not substantial evidence in the record to support the Board’s adverse
decision. Second, he contends that the IAB’s decision to hold a virtual hearing alters
the deference due the Board on appeal regarding its credibility findings.
As to the first argument, the record contains a sufficient quantum of evidence
to constitute substantial evidence in support of the Board’s decision to terminate
benefits after May 7, 2019. The Court owes deference to the IAB regarding issues
of credibility, both as to Mr. Berry and the expert medical witnesses. As to the
second argument, the Board’s decision to hold hearings virtually during the
pandemic does not alter the traditional deference due the Board regarding questions
of credibility.
8
Bullock, 1995 WL 339025, at *2 (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
9
Hoffecker v. Lexus of Wilmington, 2012 WL 341714, at *1 (Del. Feb. 1, 2012).
10
Id.
11
Christiana Care Health Services v. Davis, 127 A.3d 391, 395 (Del. 2015).
9
The Court must defer to the Board’s findings regarding the credibility of Mr.
Berry’s testimony; given this deference and Dr. Piccioni’s expert opinion, the
record contains substantial evidence to support the Board’s decision.
Because the Court does not hear the evidence, it cannot make credibility
determinations upon appellate review.12 Moreover, where substantial evidence
exists in a record that supports two reasonable, but contrary results, the Board’s
decision controls.13 Here, Mr. Berry acknowledges that to reverse the Board’s
decision, the Court would need to accept all, or nearly all, of his numerous
arguments.14
At the outset, the Court recognizes that Dr. Zaslavsky’s expert opinion and
Mr. Berry’s testimony would have provided substantial evidence in support of Mr.
Berry’s position if he had prevailed before the IAB. This appeal, however, turns on
whether there was substantial evidence supporting the contrary result. Accordingly,
the Court reviews the record for evidence supportive of KFC’s position. When
doing so, it does not ignore the evidence supportive of Mr. Berry’s claim. Nor does
it imply that Mr. Berry’s case was wholly without merit. Rather, this focus reflects
the scope of the Court’s review.
In this regard, Mr. Berry’s testimony conflicted at times with statements in his
medical records that were attributed to him. The Board recognized and the record
supports that Mr. Berry inconsistently described the nature of his injuries and
symptoms to various medical providers. Many of the medical records varied on the
12
Bullock, 1995 WL 339025, at *2 (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del.
1965)).
13
See Disabatino Bros., Inc. v. Wortman, 453 A.2d 102, 106 (Del. 1982) (citing General Motors
v. Veasey, 371 A.2d 1074, 1076 (Del. 1977), overruled in part on other grounds by Duvall v.
Charles Connell Roofing, 564 A.2d 1132 (Del. 1989)) (recognizing that in cases, when “the
substantial evidence requirement [is] satisfied either way,” the Court cannot overturn the Board’s
choice on appeal).
14
Appellant Op. Br. at. 14.
10
location of reported injuries and degree of pain. For instance, the Board’s decision
assigned weight to KGH’s day-of-injury record. That KGH record recorded that Mr.
Berry denied hitting his head when he fell. It also did not mention neck pain. In
addition, Mr. Berry later told his family doctor, eight days after the accident, that he
had not hit his head. One year later, at his defense medical examination, he likewise
did not tell Dr. Piccioni that he did struck his head. In contrast, Mr. Perry (1) told
Dr. Zaslavsky that he had struck his head and (2) testified at the hearing that he had.
Furthermore, the record demonstrates that Mr. Berry failed to disclose a prior
2008 neck injury and relevant diagnostic test to his medical providers or to Dr.
Piccioni. He may have simply forgotten it. Nevertheless, the 2008 test ordered at
KGH to evaluate a prior neck injury showed substantially similar degenerative
changes as shown in the 2019 MRI study. The Board permissibly considered this
prior treatment when it judged Mr. Berry’s credibility. It also permissibly
considered the two imaging findings when it evaluated Dr. Zaslavsky’s credibility.
In addition, Mr. Berry’s testimony at the hearing differed in other respects
when compared to what he told his medical providers. Namely, he testified that his
supervisor told him to go home immediately after the accident. The KGH records
and Dr. Piccioni described something different; rather, those accounts provided that
his supervisor told him to seek immediate medical care. Once confronted with the
KGH record, Mr. Berry altered his testimony in front of the Board. He then testified
that his supervisor told him to go to a walk-in clinic rather than go home. Whether
these differing accounts are material and the degree to which they should have
impacted the Board’s assessment of Mr. Berry’s credibility were issues for the IAB
to determine – not for the Court on appeal.
Furthermore, Mr. Berry told the Board he was totally disabled and had
remained unable to work because of the accident. However, within two weeks of
the accident, on May 7, 2019, Mr. Berry requested that his family doctor return him
11
to full duty. Furthermore, Mr. Berry admitted to Dr. Zaslavsky two months after the
accident that he was working thirteen hours a week, notwithstanding his claim of
total disability. Moreover, Mr. Berry testified during the IAB hearing that he was
unable to find employment because he could not lift over twenty pounds. He
confirmed, however, that he had prior experience in sales and customer service.
When questioned regarding whether he sought employment in those fields, that do
not require lifting, he responded simply that there was nothing available.
Accordingly, the Board permissibly inferred that he did not try. Conflicting
testimony regarding Mr. Berry’s work capabilities and efforts to find replacement
work provided further acceptable grounds for the IAB to discredit Mr. Berry’s
testimony.
The Board also relied in part upon his desire to undergo cervical surgery
notwithstanding his reluctance to attempt nerve blocks as an alternative treatment.
His stated reason for refusing injections was a fear of needles. The Court, given the
nature of its appellate review, cannot find that the Board erred when considering this
when evaluating his credibility.15
Mr. Berry also argues that the Board improperly considered his marijuana use
when it assessed his credibility. In support, he advances public policy arguments
and emphasizes the decriminalization of marijuana.16 In one sense, the Court could
15
The Court acknowledges the Delaware Supreme Court’s decision in Brittingham v. St. Michael’s
Rectory, 788 A.2d 519, 526 (Del. 2002), cited by Mr. Berry. That decision examined 19 Del. C.
§2353 (a)’s provision providing for forfeiture of benefits when a claimant refuses reasonable
surgical, medical, or hospital treatment. The Brittingham decision recognizes a multi-part analysis
necessary before finding such a forfeiture. Brittingham, 788 A.2d at 525. Here, the IAB
considered Mr. Berry’s refusal for a purpose other than for forfeiture. Namely, it considered it
simply as an additional item relevant to its overall credibility determination. When doing so, the
Board did not act improperly.
16
See 16 Del. C. § 4764 (c) (2) (providing that possession or use of personal use quantities of
marijuana engender civil penalties). Although such use may no longer be criminal, it remains
illegal unless the possessor or user is a qualified patient or designated caregiver who has been
issued a valid registry identification card. 16 Del. C. § 4902A.
12
properly decline to address this argument because Mr. Berry did not object to the
evidence during the IAB hearing.17 Nevertheless, the Court more properly rejects
Mr. Berry’s argument on substantive grounds. Namely, the Court declines to hold
that the IAB erred when it considered that Dr. Zaslavsky told Mr. Berry not to self-
medicate illegally with marijuana. Were the Court to accept Mr. Berry’s argument,
such a holding would prohibit the IAB from considering a claimant’s refusal to
follow a doctor’s medication instructions when evaluating the claimant’s credibility.
Such a result would be inappropriate.
Finally, and independently dispositive, the Board permissibly assigned
controlling weight to Dr. Piccioni’s opinions. The IAB demonstrated, in its written
order, that it considered the testimony of the competing experts. As with fact
witnesses, the Board has the exclusive purview to make credibility determinations
regarding expert witnesses.18 In the medical expert context, “it is well settled that
the IAB is free to choose between conflicting medical testimony, and [when it relies
upon one of the expert’s opinions, it] will constitute substantial evidence for the
purposes of appeal.”19
Here, Dr. Piccioni testified that Mr. Berry appeared for a defense medical
examination without the use of a cane, had normal balance, and walked without
difficulty. Given this testimony, the Board could have reasonably found that Dr.
Zaslavsky’s opinion that Mr. Berry required a cane or needed to hold a wall to walk
down a hallway was incorrect and, in turn, deserved minimal weight.
17
See Standard Distributing, Inc. v. Hall, 2005 WL 950118 at *2 (Del. Super. Ct. Mar. 18, 2005)
(citation omitted) (explaining that it is settled Delaware law that failure to object to an issue during
an IAB hearing waives the issue on appeal).
18
See Cottman v. Burris Fence Const., 2006 WL 3742580, at *3 (Del. Dec. 19, 2006) (TABLE)
(“[w]hen ... 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.”).
19
Glanden v. Land Prep, Inc., 918 A.2d 1098, 1103 (Del. 2007).
13
Furthermore, both expert witnesses testified that myelopathy is a progressive
and non-resolving condition. Pursuant to a substantial evidence review, the Board
did not err when it inferred that if Mr. Berry had signs and symptoms of myelopathy
when treating with Dr. Zaslavsky, he should have displayed those signs and
symptoms at his defense medical examination. Thus, it permissibly considered Dr.
Piccioni’s testimony that Mr. Berry described no symptoms of myelopathy or any
other permanent injury related to his work accident. Finally, Dr. Piccioni’s
unchallenged testimony that Dr. Zaslavsky was the only medical provider who
recorded any signs or symptoms of myelopathy provided further support for the
IAB’s decision.
Additionally, when the Board considered the competing medical opinions, it
had before it both doctors’ testimonies regarding the MRI study. Dr. Zaslavsky
described the findings to be supportive of myelopathy. However, it accepted Dr.
Piccioni’s opposite opinion -- that the film revealed no condition consistent with
myelopathy and that if that condition existed, it would have. It also permissibly
accepted Dr. Piccioni’s opinion that no further benefits were due Mr. Berry after
May 7, 2019.
Finally, Dr. Piccioni’s testified that Mr. Berry was a malinger who
exaggerated his symptoms. Though Dr. Zaslavsky disagreed, Mr. Berry did not
object to Dr. Piccioni’s malingering opinion at the hearing. In fact, Dr. Piccioni
reiterated that opinion when questioned on cross-examination. If Mr. Berry
exaggerated his symptoms, the Board could have reasonably found that Mr. Berry
lacked credibility. Because Dr. Zaslavsky’s opinion relied, in part, on Mr. Berry’s
statements regarding his condition, the IAB could also have reasonably found that
Dr. Zaslavsky’s opinion deserved less weight as a result.
14
The Board’s decision to conduct a virtual hearing does not alter the deference
due the Board when deciding questions of witness credibility.
As a final matter, Mr. Berry argues that the Court should not defer to the
Board’s credibility findings because the Board conducted the hearing virtually. He
cites no authority in support of that contention. Nor does he identify any specific
difficulty with the hearing. Rather, while he does not allege the virtual hearing to
be improper, he contends that it alters the nature of the Court’s appellate review. In
support, he asserts only that the Board could not adequately observe the claimant or
appreciate his body language and facial expressions to the same degree as possible
in a live hearing.
The IAB, in accordance with a recent procedural order, conducted Mr. Berry’s
hearing through the WebEx platform.20 That order provides that, due to Covid-19,
“scheduled matters shall proceed by video hearing.”21 It is axiomatic that the Board
has the authority to control the nature of its proceedings.22 In fact, Mr. Berry
concedes the order’s lawfulness. Here, as in Delaware’s courts, emergency
circumstances created by the pandemic compel such reasonable measures to protect
the safety of participants.23
In this case, Mr. Berry was the only virtual witness during the IAB hearing.
The parties offered both doctors’ testimonies through depositions. With regards to
Mr. Berry’s testimony, the record reveals no difficulty with the video platform
20
Appellee Ans. Br. Ex. 2, Industrial Accident Board Order dated May 11, 2020 [hereinafter “IAB
Covid Order”].
21
IAB Covid Order at 2 (emphasis added).
22
See 19 Del. C. § 2301A (i) (“[t]he Board may promulgate its own rules of procedure for carrying
out its duties consistent with Part II of this title and the provisions of the Administrative Procedures
Act [§ 10101 et seq. of Title 29].”).
23
See State v. Kolaco, 2020 WL 7334176, at *1-12 (Del. Super. Dec. 14, 2020) (discussing, in
light of the Covid-19 pandemic, the sufficiency of virtual proceedings in the context of criminal
suppression motions).
15
chosen by the Board. Mr. Berry could view and address the one exhibit addressed
during his examination. When he testified, the Board and attorneys could fully
observe and hear him. Give these circumstances and Mr. Berry’s failure to identify
any aspect of the record that supports his argument that the Board could not
appropriately assess his credibility, the Court will not alter its scope of review.
On balance, given the lawfulness of the IAB’s order, the Court would act
illogically if it usurped the role of independently assessing witness credibility on
appeal. Here, the Court had no opportunity to observe any witness, physically or
virtually. Consistent with normal times, these temporary safety measures do not
change the fact that the IAB is the only entity suited to be the finder of fact. As a
result, the Court declines to alter the well-recognized rule that defers to the Board’s
judgment regarding issues of witness credibility.
CONCLUSION
For the reasons discussed, substantial evidence supported the Board’s
decision to grant KFC’s petition. Furthermore, the Board’s credibility decisions and
decisions regarding the weight due the evidence do not exceed the bounds of reason.
As a result, the Board’s decision in this matter must be AFFIRMED.
IT IS SO ORDERED.
/s/Jeffrey J Clark
Judge
16