IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
LINDA HOLLOWAY, an individual, )
)
Employee-Appellant, )
)
v. ) C.A. No.: N20A-07-005 CEB
)
STATE OF DELAWARE, )
)
Employer-Appellee. )
ORDER
Submitted: March 22, 2021
Decided: June 9, 2021
Upon Consideration of Appeal of the Decision of the
Industrial Accident Board, AFFIRMED.
Tara E. Bustard, Esquire, DOROSHOW, PASQUALE KRAWITZ & BHAYA,
Wilmington, Delaware. Attorney for Employee-Appellant.
Nicholas E. Bittner, Esquire, HECKLER & FRABIZZIO, Wilmington, Delaware.
Attorney for State of Delaware, Employer-Appellee.
BUTLER, R.J.
In connection with the appeal of Linda Holloway (“Claimant”) of the decision
of the Industrial Accident Board (“IAB”) against her and in favor of the employer,
State of Delaware (“Employer”), the Court enters the following Order:
1. On July 31, 2017, Claimant slipped in a puddle of water on the
bathroom floor at work, sustaining an injury to her spine, right knee, and right ankle.
Claimant was a training specialist with the State. She was fired after the work
accident because her back pain prevented her from returning to work.
2. On August 9, 2019, after her first Petition to Determine Additional
Compensation Due to proceed with spine injections and an ablation was granted,
Claimant filed a second Petition to Determine Additional Compensation Due,
seeking approval of payment for a proposed lumbar surgery. The IAB conducted a
hearing and denied Claimant’s petition, ruling that the proposed surgery was not
reasonable, necessary, or causally related to the 2017 work accident.
3. Claimant filed an appeal of the IAB ruling with this Court. Claimant
alleges the IAB erred because 1) it determined an issue beyond the scope of the
hearing, 2) it committed legal error when failing to address specific authority in its
decision, and 3) its conclusions were not supported by substantial evidence.
4. The Court has jurisdiction over appeals from administrative agencies,
including appeals from the IAB.1 The Court’s review of an agency’s decision is
1
29 Del. C. § 10142(a).
1
limited to a determination whether the findings and conclusions are supported by
substantial evidence and free from legal error.2 Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”3 The Court reviews the agency’s legal determinations de novo.4
Absent an error of law, the Court reviews for abuse of discretion.5 The IAB has
abused its discretion only when its decision has “exceeded the bounds of reason in
view of the circumstances.”6 The Court does not weigh the evidence, determine
questions of credibility, or make its own factual findings.7 The Court must give
deference to the experience and specialized competence of the Board.8
5. As stated, the IAB’s decision favoring the Employer will be affirmed
so long as it is supported by substantial evidence. A substantial evidence standard
of review is not an invitation for the Court to examine each witness’ testimony and
weigh questions of credibility, all of which was done by the IAB.
2
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965); see also Glandon v. Land
Prep Inc., 918 A.2d 1098, 1100 (Del. 2007).
3
Roos Foods v. Guardado, 152 A.3d 114, 118 (Del. 2016); Olney v. Cooch, 425
A.2d 610, 614 (Del. 1981).
4
Guardado, 152 A.3d at 118; Munyan v. Daimler Chrysler Corp., 909 A.2d 133,
136 (Del. 2006).
5
Pers.-Gaines v. Pepco Hldgs., Inc., 981 A.2d 1159, 1161 (Del. 2009).
6
Willis v. Plastic Materials, Co., 2003 WL 164292, at *1 (Del. Super. Jan. 13, 2003).
7
ILC of Dover, Inc. v. Kelley, 1999 WL 1427805, at *1 (Del. Super. Nov. 22, 1999)
(citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
8
Del. Transit Corp. v. Hamilton, 2001 WL 1448239 (Del. Super. Oct. 31, 2001)
(citing Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993)).
2
6. Claimant’s difficulty in making her case that the proposed surgery was
reasonable, necessary, and causally related to the work accident lies in the fact that
Claimant has a prior history of severe spinal arthritis, which can lead to neurological
weakness. In the two years following the accident, Claimant had no neurological or
radicular complaints. Claimant had low back pain in relation to the work accident,
which was back to normal levels at her June 2019 back examination. That same
examination was devoid of neurological findings. According to Claimant’s
physician, her condition became surgical only when she exhibited neurological
weakness at a December 4, 2019 exam. Moreover, the proposed surgery would not
provide a stable fusion, as Claimant has two bones shifting on each other and would
face a high risk of developing even greater instability after surgery.
7. As with many cases heard by the IAB, this one came down to a dispute
between two medical expert opinions. Claimant had physician testimony to the
effect that Claimant’s spinal stenosis and related spine complications requiring
surgery were reasonable, necessary, and causally related to the accident. Had the
IAB chosen to do so, it could have sustained the physician’s opinion.
8. But it is well-established in Delaware that the IAB may choose between
conflicting testimony.9 Employer had physician testimony that questioned whether
9
See Noel-Liszkiewicz v. La-Z-Boy, Inc., 2012 WL 4762114, at *4 (Del. Super. Oct.
3, 2012) (“In a battle of experts, the Board is ordinarily free to favor one’s expert
3
Claimant’s medical problems were caused by the workplace injury or were simply a
result of her severe spinal arthritis. The IAB chose to credit this testimony over that
of the Claimant’s experts. That is one possible result. The IAB is not required to
resolve every gap, contradiction or internal inconsistency in the testimony.10 Having
reviewed the record, the Court concludes that there was no legal error in crediting
defendant’s expert’s opinion and the IAB’s decision was supported by substantial
evidence.
9. Claimant also points to the IAB’s failure to address the standards of
Reese v. Home Budget Center11 and Brittingham v. St. Michael’s Rectory12 as
another source of legal error. But the IAB did not fail to address the standards of
but-for causation and reasonableness—it simply did not cite Reeves and Brittingham
specifically. The IAB concluded that the proposed surgery was caused by
testimony.”); See also DiSabatino Bros. Inc. v. Wortman, 453 A.2d 102, 106 (Del.
1982).
10
See Kochis v. Connections, CSP, 2021 WL 1712436, at *2 (Del. Super. Apr. 30,
2021); see also Simmons v. Delaware State Hosp., 660 A.2d 384, 388 (Del. 1995)
(“The function of reconciling inconsistent testimony or determining credibility is
exclusively reserved for the Board.”).
11
Reese v. Home Budget Ctr., 619 A.2d 907 (Del. 1992) (“The ‘but-for’ definition
of proximate cause . . . finds equal application . . . between an acknowledged
industrial incident and its aftermath . . . . [I]f the accident provides the ‘setting’ or
‘trigger,’ causation is satisfied for purposes of compensability.”)
12
Brittingham v. St. Michael’s Rectory, 788 A.2d 520 (Del. 2002) (“Reasonableness
in turn resolves itself into a weighing of the probability of the treatment’s
successfully reducing the disability by a significant amount, against the risk of the
treatment to the claimant.” (quoting Arthur Larson & Lex K. Larson, Larson’s
Workers’ Compensation Law §10.10[2], at 10-30 (2001))).
4
Claimant’s prior neurological history and was not reasonable because Claimant
faced a high risk of developing even greater instability after surgery. Whether the
IAB did not cite Reese when discussing but-for causation or Brittingham when
discussing reasonable treatment is an issue beyond the bounds of the Court’s limited
appellate review; the Court is only to determine whether the conclusion is supported
by substantial evidence. Here, Employer’s physician testimony presented
substantial evidence indicating that the proposed surgery was not reasonable,
necessary, or causally related. Thus, there was no legal error.
10. Absent legal error, Claimant argues in the alternative that the IAB’s
evaluation of Claimant’s December 2019 neurological complaints abused its
discretion and violated her due process rights. This argument is unavailing.
Claimant herself requested an evaluation of Dr. Eskander’s proposed surgery in her
Petition. The proposed surgery was specifically linked to her December 2019
neurological changes: Dr. Eskander recommended surgery to unpinch Claimant’s
nerves based on said neurological changes and lack of improvement with former
treatment. Without reviewing these neurological changes, the IAB could not
determine whether the proposed surgery was reasonable, necessary, and causally
related to the accident as requested by Claimant’s Petition. Therefore, the Court
finds that the IAB’s review of Claimant’s neurological changes in December 2019
5
was within the scope of the Petition before it and comported with due process. Thus,
the IAB did not abuse its discretion.
For the foregoing reasons, the decision of the IAB in favor of the Employer is
AFFIRMED.
IT IS SO ORDERED.
Charles E. Butler, Resident Judge
6