IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
TY JASON, )
)
Appellant/Employee-Below, )
)
v. ) C.A. No. N22A-06-004 VLM
)
STATE OF DELAWARE, )
)
Appellee/Employer-Below. )
)
)
ORDER
Submitted: December 6, 2022
Decided: March 13, 2023
Upon Consideration of Appellant’s Appeal of the Decision of the Industrial Accident
Board, AFFIRMED.
Andrew Carmine, Esquire, Elzufon Austin & Mondell, Wilmington, DE. Attorney for
Appellant Ty Jason.
Keri L. Morris-Johnston, Esquire, Marshall Dennehey Warner Coleman & Goggin,
Wilmington, DE. Attorney for Appellee, the State of Delaware.
MEDINILLA, J.
I. INTRODUCTION
Claimant-Appellant Ty Jason (“Claimant”) challenges the decision of the
Industrial Accident Board (the “Board”) that denied, in part, his petition for worker’s
compensation benefits. Claimant argues the Board erred in accepting Employer’s
expert opinion that relied on a lack of medical treatment where the lack of said
treatment was due to Employer’s failure to report Claimant’s injury. Upon
consideration of the arguments, submissions of the parties, and the record in this
case, the Board’s decision must be AFFIRMED.
II. FACTUAL AND PROCEDURAL HISTORY 1
1. On April 7, 2014, Claimant was injured while working for the State of
Delaware (“Employer”) after he fell from a stool when shredding confidential
documents.2 He immediately made a telephone call to his supervisor to notify him
of his fall.3 Two days later, Claimant also emailed the supervisor stating he caught
himself with his left hand when he fell to the ground, 4 and “was okay.”5
2. That same month, Claimant also emailed his supervisor to obtain a
workers’ compensation claim number.6 In that email, Claimant, used the singular
1
The recitation of the facts is based upon the submission of the parties, including the transcript
from the IAB hearing on May 20, 2022.
2
Industrial Accident Board’s Transcript, at 15 [hereinafter IAB Transcript].
3
Id. at 17–18.
4
Id. at 77.
5
Id. at 20–21.
6
Id. at 23, 77.
2
form of the word “hand” and “shoulder,” and indicated that he “[c]aught [himself]
with [his] hand. And it made [his] shoulder feel weird.”7 After being instructed by
his supervisor to report the accident to his manager, he was provided with a formal
injury report form in May 2014. 8 In his communication with the manager, Claimant
again used a singular form of the word “hand” and “shoulder.” 9 He claims he
completed the form and submitted it as instructed.10 The Employer did not report a
claim to the workers’ compensation carrier, nor did Claimant receive any
communication from Employer about his submission.11
3. Medically, within three weeks of the fall, Claimant saw Dr. Doug
Palma, an orthopedic surgeon, for pain in his shoulders and neck. 12 Dr. Palma
ordered two MRIs, but only one was conducted because Claimant was told by his
health insurance carrier that he would be responsible for payment as this was a work-
related injury. 13 Therefore, he underwent an MRI of only the left shoulder in August
2014. 14 Dr. Palma opined that Claimant had suffered both cervical and left shoulder
7
Id.
8
Id. at 25–26.
9
Id. at 26–27; 80–81.
10
Id. at 28.
11
Id. at 28, 80.
12
Id. at 22.
13
Id. at 28–30.
14
Id. at 28–30, 80–84. Claimant did not testify whether the other MRI was concerning his right
shoulder or cervical spine. See Id. Although Claimant claims in his appellate brief that Dr. Palma
ordered MRIs of both Claimant’s left and right shoulders, neither the Transcript nor Dr. Eskander
deposition states so. Compare Appellant’s Opening Brief (citing Transcript, at 28; Eskander, at
10), with IAB Transcript, and Dr. Eskander’s Deposition, at 10 (stating that Dr. Palma ordered
“MRIs of both areas, the cervical spine and the [left] shoulder.”).
3
injuries from the fall. 15
4. In February 2015, Claimant visited another spine specialist, Dr. Adam
Ginsberg.16 Claimant did not reference the 2014 work accident in his intake form.17
For one month, Claimant received physical therapy for both shoulders on Dr.
Ginsberg’s referral. 18 Claimant’s health insurance denied coverage for this
treatment because—according to Claimant—the treatment was for a work-related
injury.19 Claimant stopped physical therapy for fear of the financial responsibility
of out-of-pocket payments.20 As it turns out, Claimant did not have to reimburse the
health insurance carrier, nor was he required to make out-of-pocket payments for
treatment he received in 2014 and 2015.21
5. In September of 2019, Claimant continued to visit his primary care
physician. 22 He reported he was running every other day and alternating his physical
activity with bike riding.23 He also continued to work and treat with Aleve when he
experienced intermittent pain in the neck and shoulder.24 In that same year, he
15
IAB Transcript, at 78–79 (“The Impression . . . was ‘cervical degenerative disc disease as well
as left shoulder plank . . . .’”) (emphasis added).
16
Id. at 93.
17
Id. at 93–94.
18
Id. at 30–31, 33, 94.
19
Id. at 30–31, 33.
20
Id. at 30–31, 33.
21
Id. at 87–88.
22
Id. at 119.
23
Id. at 38, 89
24
Id. at 40–41, 109.
4
returned to Dr. Palma due to numbness in his arms and hands that affected his ability
to perform some tasks at work.25
6. In 2019, Claimant emailed Employer’s human relations department and
provided a full explanation with respect to his 2014 work accident, including his
2014 communications with his supervisor and manager, and the completion of an
injury report form in 2014. 26 Claimant testified he was instructed to change the date
to 2019 in a new injury report form. 27 In 2019, Employer denied the claim based on
the expiration of the two-year statute of limitations. 28 Employer has since waived
its statute of limitations defense. 29
7. Despite the denial of both health insurance and worker’s compensation
benefits, Claimant underwent multiple surgeries to include bilateral carpal tunnel
releases, bilateral shoulder surgeries, and a neck surgery. 30 He continued with
physical therapy and made out-of-pocket payments in 2020 and 2021. 31
8. On October 22, 2021, Claimant filed a Petition for Compensation Due
petition seeking a determination of compensability related to Claimants’ bilateral
wrists, shoulders, and cervical spine, as well as the payment of medical expenses
25
Id. at 44–45.
26
Id. at 47–48.
27
Id. at 49–51.
28
Id. at 54–57.
29
Appellant’s Opening Brief, at 1.
30
IAB Transcript, at 61–63, 100.
31
Id.
5
and periods of temporary total disability benefits.32
9. On May 20, 2022, the Board conducted a hearing on Claimant’s
petition. In addition to testimony from Claimant, the Board also considered the
opposing opinions of the expert witnesses, Drs. Mark Eskander, on behalf of
Claimant and Andrew Gelman, on behalf of Employer.
10. Dr. Eskander opined that Claimant reported that he fell forward with
his arms out to brace himself, and a chain of kinetic energy went up through the
upper part of his body. 33 Thus, Dr. Eskander opined that all the injuries related to
Claimant’s bilateral wrists, bilateral shoulders, and neck were causally related to the
2014 work accident,34 and that the medical treatment to address his injuries had been
reasonable. 35 On cross-examination, the doctor conceded that he relied on the
history provided by Claimant, who reported he had fallen on both hands. 36 He
testified that if Claimant had instead fallen only on his left hand, he would have
opined that the left shoulder injury was caused by the work accident while the right
shoulder symptoms were more likely due to a degenerative mechanism. 37
11. Employer’s expert, Dr. Gelman, opined that Claimant strained or
32
Industrial Accident Board’s Decision, at 2 [hereinafter IAB Decision]. The parties stipulated to
resolve once a determination is made as to which injuries may be compensable. Id. The Employer
did not challenge the claim on a statute of limitations defense. See Joint Stipulation of Facts.
33
IAB Transcript, at 132.
34
Id. at 131–32.
35
Id. at 134.
36
Id. at 156.
37
Id.
6
sprained his left shoulder and neck from the work accident, and only the treatment
related to the left shoulder and neck through early spring of 2015 was causally
related to the accident. 38 He further opined that Claimant’s right shoulder injury or
carpal tunnel injuries were not related to the work accident. 39 Dr. Gelman explained
that Claimant had very little treatment substantiating the causal nexus between the
surgeries for both shoulders and neck, and the left shoulder MRI showed a
progression attributable to nature,40 (i.e., degenerative and not work-related). Dr.
Gelman also acknowledged that he had reviewed some correspondence related to
Claimant’s inability to obtain treatment due to insurance issues.41
12. On May 31, 2022, the Board granted, in part, and denied, in part,
Appellant’s Petition. 42 The Board, in relevant part, found that Claimant met his
burden of proof by a preponderance of evidence that (1) he suffered a work accident
while employed with the State of Delaware, (2) the accident resulted in a left
shoulder rotator cuff tear, and (3) the accident resulted in strain/sprain injury to the
neck, which resolved by mid-2015.43 The Board denied his claims related to his
bilateral carpal tunnel and right shoulder injuries. 44
38
Dr. Gelman’s Deposition, at 31–33, 45.
39
IAB Transcript, at 170–72.
40
Id. at 159–72.
41
Dr. Gelman’s Deposition, at 49–50.
42
IAB Decision, at 25–30.
43
Id. at 24–28.
44
IAB Decision, at 25.
7
III. PARTIES’ CONTENTIONS
13. Claimant does not challenge the Board’s partial ruling in his favor. He
argues that the Board erred when it ruled against him and found that (1) the treatment
for cervical strain/sprain after mid-2015 was not related to his fall during his work
in 2014; and that (2) the 2014 work accident did not result in an injury to his neck,
right shoulder, and hands. 45 He contends this determination was based on
insubstantial evidence; the Employer’s expert relied on a lack of medical treatment
and ignored the fact that Claimant was prevented from treating due to Employer’s
failure to report the accident.46
14. Employer maintains that the Board’s decision is free from legal error
and supported by substantial evidence when it found that Claimant only sustained
work injuries related to the left shoulder and the cervical spine that resolved in the
spring of 2015.47
IV. STANDARD OF REVIEW
15. On appeal from the Board, this Court’s role is to determine whether
substantial evidence exists to support the Board’s decision, and to examine the
Board’s findings and conclusions for legal error.48 The parties do not raise any legal
45
Claimant’s Opening Brief, at 15–20.
46
Id.
47
Employer’s Answering Brief, at 11–14.
48
Harasika v. State, 2013 WL 1411233, at *3 (Del. Super. Feb. 28, 2013).
8
issues in this appeal. Thus, the only issue in this appeal is whether substantial
evidence supports the Board’s findings. Substantial evidence is such relevant
evidence as “a reasonable person might accept as adequate to support a
conclusion.” 49
V. DISCUSSION
16. This case involves credibility determinations of what boils down to the
battle of the experts. Accordingly, this Court does not “weigh the evidence,
determine questions of credibility, and make its own factual findings and
conclusions.”50 The Board exclusively holds those functions,51 and this Court “must
uphold the decision of the Board unless the Court finds that the Board’s decision
‘exceeds the bounds of reason given the circumstances.’” 52
17. Citing to DiSabatino Bros. v. Wortman, both parties correctly note that
the Board is free to choose one medical expert opinion over the other. 53
DiSabatino’s holding also allows the Board to accept “[the expert’s] testimony, as
enhanced by the employer’s other medical testimony and by their evaluation of the
49
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981); see Perdue Farms, Inc. v. Atkinson, 2019 WL
7373397, at *2 (Del. Super. Dec. 30, 2019).
50
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965); see Christiana Care Health Servs. v.
Davis, 127 A.3d 391, 394 (Del. 2015).
51
Noel-Liszkiewicz v. La-Z-Boy, 68 A.3d 188, 191 (Del. 2013) (citations omitted).
52
Elzufon v. Lewis, 2023 WL 152235, at *4 (Del. Super. Jan 10, 2023) (citations omitted).
53
Claimant’s Opening Brief, at 16 (citing DiSabatino Bros. v. Wortman, 453 A.2d 102, 106 (Del.
1982)); Employer’s Answering Brief, at 11 (citing DiSabatino Bros., 453 A.2d at 106).
9
claimant’s credibility. As the triers of fact, they were entitled to do just that.” 54 This
Board did the same. And offered a full explanation of why it accepted and rejected
the respective medical opinions.
18. Notably, the Board did not accept Employer’s expert opinion in toto.
In fact, the Board found in favor of Claimant as to his left shoulder injury. In this
determination, the Board rejected the Employer’s expert opinion that Claimant only
strained or sprained his left shoulder. 55 Instead, the Board accepted the opinion of
Claimant’s expert that Claimant’s subjective complaints, coupled with the
diagnostic evidence of the left shoulder MRI, established that the left shoulder injury
was causally related to the 2014 work accident, and it deemed the corresponding
treatment to be reasonable.56
19. Conversely, as to its determination of Claimant’s cervical injury, the
Board did accept Employer’s expert’s opinion that Claimant suffered “some injury”
to his neck because of the work accident but that this injury had resolved by mid-
2015. 57 Here, Claimant takes issue with Dr. Gelman’s reliance on the absence of
medical treatment between 2015 and 2019 to opine that the neck injury had resolved.
Citing to the broad holding in McCracken v. Lewis, 58 he proposes that the Board’s
54
DiSabatino Bros., 453 A.2d at 106.
55
IAB Decision, at 26–27.
56
Id.
57
Id. at 27–28.
58
McCracken v. Wilson Beverage, 1992 WL 301985 (Del. Super. Oct. 15, 1992).
10
determination was based on insubstantial evidence, namely that Dr. Gelman relied
on a lack of medical treatment and ignored the fact that insurance issues caused by
Employer’s failure to report the accident prevented access to said treatment.59
20. It is true that McCracken held that substantial evidence did not exist to
support that Board’s decision in favor of that employer. 60 “If an expert witness
chooses to ignore a person’s central and medically documented symptoms in
reaching his or her opinion without any substantial reason for ignoring such
symptoms, the opinion is necessarily insubstantial.”61 But here, McCracken is not
applicable as there is no evidence that the Employer’s expert ignored Claimant’s
symptoms in reaching his opinion. He further acknowledged some awareness
regarding Claimant’s insurance issues.
21. Moreover, the Board did not accept Dr. Gelman’s opinion in a vacuum.
It properly evaluated both Claimant’s credibility and corresponding medical records.
It rejected Claimant’s testimony that he did not treat his neck after mid-2015 because
of insurance issues. Instead, the Board focused on the fact that Claimant did not
report neck pain after mid-2015 to his primary care physician.62
22. The Board’s denial of the bilateral carpal tunnel and right shoulder
59
Claimant’s Opening Brief, at 16.
60
McCracken, 1992 WL 301985 at 7.
61
Id. at 6 (emphasis added).
62
IAB Decision, at 28.
11
injuries is also based on substantial evidence—Claimant’s reporting and his expert’s
opinion. As to the former, Claimant self-reported in 2014 that he fell only on his
left hand; references involving both hands were made only in later reports. 63 The
Board noted that his medical records close in time to the work accident focused
almost entirely on his left shoulder and neck.64 As to the latter, the Board further
found that even Claimant’s medical expert acknowledged on cross-examination that
if the mechanism of injury involved only the left hand, the alleged injuries to the
right side would not be related to the work accident.65 This opinion is consistent
with Employer’s expert that the right-sided injuries were degenerative in nature.
23. Accordingly, there was substantial evidence in the record for the Board
to accept Claimant’s expert opinion as to the left shoulder injuries and Employer’s
expert opinion as to the neck, bilateral carpal tunnel, and right shoulder injuries. The
Board did not err. It considered evidence from both experts and chose to accept and
reject, in part, their respective opinions. It was within its province to do so. For
these reasons, the Board’s Decision is AFFIRMED.
/s/Vivian L. Medinilla
Vivian L. Medinilla
Judge
63
Id. at 25.
64
Id.
65
Id. at 25–26.
12