State v. Anderson

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, :
:
Appellant, :
: K20A-09-002 JJC
:
v. :
:
DENNIS ANDERSON, :
:
Appellee. :
ORDER
Submitted: February 2, 2021
Decided: March 31, 2021
Upon Appellant’s Appeal from the Industrial Accident Board
AFFIRMED
AND NOW TO WIT, this 31st day of March, 2021, upon consideration of the
record and the briefing by the parties, IT APPEARS THAT:
1. Before the Court is the Appellant, State of Delaware (hereinafter the
“State”)’s appeal from a decision of the Industrial Accident Board (hereinafter the
“Board” or “IAB”). In a September 4, 2020 decision, the IAB granted Appellee,
Dennis Anderson’s petition to determine compensation due.
2. The evidence of record from the hearing provides that Mr. Anderson
worked for the State of Delaware as a DART paratransit driver. The parties
stipulated that he fell at work and suffered a compensable lower back work injury
on October 15, 2018 (hereinafter the “accident”). Following the accident through
November 20, 2018, Mr. Anderson received medical treatment and sustained a
limited period of total and then partial disability. When a medical provider released
Mr. Anderson to full duty on November 20, 2018, he continued to complain of lower
back pain. Thereafter, he treated with his primary care doctor in the late winter/early
spring of 2020. He also received an additional prescription for physical therapy in
2020.
3. Because Mr. Anderson’s pain did not subside, his primary care doctor
referred him to a physical medicine and rehabilitation doctor, William Newell, M.D.
He first saw Dr. Newell on November 20, 2019, who began treating Mr. Anderson
for low back pain and right lower extremity symptoms. The expenses incurred for
that treatment in late 2019 and the lost wages Mr. Anderson suffered during that
period are the medical expenses and wages in dispute.
4. The parties presented two expert medical witnesses at the hearing. Dr.
Newell testified by deposition on behalf of Mr. Anderson, and Dr. Scott Rushton, an
orthopedic surgeon, testified as a defense medical expert for the State. A summary
of the evidence relevant to this substantial evidence review includes the following:
(1) the parties stipulated that the accident caused Mr. Anderson to suffer a low back
injury;1 (2) that injury necessitated the October and November 2018 treatment and
accompanying periods of disability;2 (3) Mr. Anderson testified that he had no back
pain before the accident, but has had pain consistently since;3 (4) Dr. Rushton
opined, to a reasonable degree of medical probability, that the accident did not cause
the 2019 disputed treatment and disability;4 (5) Dr. Newell testified, to a reasonable
degree of medical probability that the 2019 disputed treatment and lost wages were
1
R. at Ex. 6.
2
Id. at para. 2.
3
State of Delaware v. Dennis Anderson, No. 1478450 at 44-50 (Del. I.A.B. Aug. 18, 2020)
(TRANSCRIPT).
4
Dr. Rushton Dep. 16:4-8.
2
reasonable, necessary, and related to the accident;5 (6) Dr. Newell confirmed that the
medical records demonstrated consistency in low back symptoms from the time of
the accident until the time of his April 2020 testimony;6 (7) Dr. Newell recanted his
causation opinion after the State confronted him with prior medical records;7 and (8)
Mr. Anderson rehabilitated Dr. Newell somewhat on re-direct, where Dr. Newell
confirmed that the work injury aggravated Mr. Anderson’s pre-existing condition
and continued to do so through February 2020.8
5. The Board found Mr. Anderson’s testimony to be credible.9 It found
him credible, in part, because Mr. Anderson urged his medical providers to release
him from restricted duty so he could return to work.10 As a result, the Board
accepted his testimony that he had no lower back pain or limitations immediately
before the accident, but experienced pain and limitations immediately after the
accident. He testified that the pain remained constant up until the time of the
hearing.11 The Board also accepted Dr. Newell’s opinion that the 2019 treatment
was reasonable, necessary, and related to the accident.12 As a result, it found that
the 2019 disputed bills and Mr. Anderson’s disputed period of disability were
reasonable, necessary, and related to the October 15, 2018 work injury.13
6. The State appealed the decision. It challenges the decision in three
ways. First, it contends the Board abused its discretion when it found Mr.
Anderson’s and Dr. Newell’s testimony to be credible because Mr. Anderson’s
records contained inconsistencies and Mr. Anderson denied prior low back pain.
5
Dr. Newell Dep. at 22-24.
6
Id. at 7, 34.
7
Id. at 40, 41.
8
Id. at 47.
9
State of Delaware v. Dennis Anderson, No. 1478450 at *15 (Del. I.A.B. Aug. 18, 2020).
10
Id. at 15-16.
11
Id.
12
Id. at 15, 17.
13
Id. at 18.
3
Second, it argues that Mr. Anderson’s subjective complaints were inconsistent with
his objective signs of injury. Third, it argues that the Board abused its discretion
when it accepted Dr. Newell’s opinion regarding causation because Dr. Newell
changed his testimony on cross-examination.
7. Mr. Anderson’s response is also best summarized in three parts. First,
he emphasizes the low evidentiary threshold necessary in a substantial evidence
review. Second, he contends that because he suffered an undisputed injury and had
no pain or restrictions before the accident, but has ever since, there is substantial
evidence to support the Board’s finding. Third, he emphasizes that Dr. Newell
testified to a reasonable degree of medical probability that the accident (1)
necessitated his 2019 treatment and (2) caused his 2019 disability. Although the
doctor retracted that opinion on cross-examination, Mr. Anderson contends that the
doctor reaffirmed it on direct.
8. In this appeal, this Court’s review of the IAB’s factual findings is limited
to determining whether the Board’s decision is supported by substantial evidence.14
Substantial evidence means “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”15 It is “more than a scintilla but less
than a preponderance of the evidence.”16
9. Furthermore, on appeal, the Court views the facts in the light most
favorable to the prevailing party below.17 Moreover, the Court does not determine
questions of credibility, or make its own factual findings.18 Absent an error of law,
14
Bullock v. K-Mart Corp., 1995 WL 339025, at *2 (Del. Super. Ct. May 5, 1995) (citing
General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960)).
15
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Fed. Mar. Comm’n, 383
U.S. 607, 620 (1966)).
16
Washington v. Delaware Transit Corp., 226 A.3d 202, 210 (Del. 2020) (citation omitted).
17
Chudnofsky v. Edwards, 208 A.2d 516, 518 (Del. 1965).
18
Bullock, 1995 WL 339025, at *2 (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del.
1965)).
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which would be reviewed de novo, a decision of the IAB supported by substantial
evidence must be upheld unless the Board abused its discretion.19 The Board abuses
its discretion when its decision exceeds the bounds of reason in view of the
circumstances.20
10. Here, the Board found more likely than not that Mr. Anderson’s
continuing back complaints and 2019 treatment and disability were related to the
2018 work accident. When doing so, it correctly applied the “but for” causation
standard set forth in Reese v. Home Budget Center.21 The Board found Mr.
Anderson credible when he testified that he experienced no symptoms or limitations
immediately before the work accident. It also accepted his testimony that the same
back pain continued, largely uninterrupted, through the day of the 2020 hearing.
Those continuing symptoms stretched across the disputed 2019 treatment and lost
wages.
11. The State’s argument centers on Dr. Newell’s testimony, how that
testimony should have been weighed by the Board, and how it should be weighed
on appeal. The State contends that IAB Evidentiary Rule 14 (c) required the Board
to apply the Delaware Rules of Evidence and Superior Court’s evidentiary standards
in its hearing.22 The State further contends that because expert opinions in Superior
Court civil cases must be stated to a reasonable degree of probability, an expert’s
opinion in an IAB hearing cannot be considered unless the expert expresses his or
her opinion to the same level of certainty.23
19
Hoffecker v. Lexus of Wilmington, 2012 WL 341714, at *1 (Del. Feb. 1, 2012).
20
Id.21
619 A.2d 907, 910 (Del. 1992). There, the Delaware Supreme Court recognized that “[i]f the
worker had a preexisting disposition to a certain physical or emotional injury which had not
manifested itself prior to the time of the accident, an injury attributable to the accident is
compensable if the injury would not have occurred but for the accident.”) (emphasis added).
22
Op. Br. at 22.
23
Id.5
12. Here, the State’s argument is incorrect for two reasons. First, Dr.
Newell in fact offered a causation opinion to a reasonable degree of medical
probability.24 The decision regarding whether to accept or reject that opinion rested
with the Board. Second, even if the Board had erred when it relied upon that
opinion, the alleged shortcoming would be non-dispositive given other evidence of
record.
13. Regarding the first reason, Dr. Newell testified to a reasonable degree
of medical probability that the work injury caused the 2019 disputed treatment and
disability.25 As the sole judge of witness credibility, the Board did not abuse its
discretion when it accepted that testimony. The Court recognizes, on one hand, that
the Board remained free to completely discount Dr. Newell’s testimony that the
accident probably caused the unpaid medical expenses and lost wages. Namely,
when counsel for the State confronted Dr. Newell with records reflecting prior low
back treatment, Dr. Newell testified he was unaware of significant portions of Mr.
Anderson’s prior treatment. As a result, Dr. Newell qualified his opinion. On the
other hand, Dr. Newell nevertheless testified that, to a reasonable degree of medical
probability, the accident caused the disputed injury and necessitated the disputed
treatment. The Board maintained the discretion to accept Dr. Newell’s testimony
on direct based upon (1) other corroborating evidence of record, and (2) Dr.
Newell’s rehabilitation on re-direct. As a result, the Board’s reliance on his
causation opinion did not constitute an abuse of discretion.
14. Furthermore, even had the IAB abused its discretion by accepting the
opinion Dr. Newell provided on direct, other evidence of record, in conjunction with
Dr. Newell’s other testimony, provided substantial evidence to support the Board’s
findings. As the Delaware Supreme Court recognized in General Motors Corp. v.
24
Dr. Newell Dep. at 16-17.
25
Id. at 22-24.
6
Freeman, testimony by a medical expert that the work accident possibly caused an
injury, in conjunction with other credible evidence, can sustain a Board finding that
an accident more likely than not caused the injury.26 First, the General Motors
decision recognizes the lack of a “magic words” requirement. It also provides a
common law rule that such certainty in an expert opinion is not required in the IAB
appellate context so long as other evidence of record bridges the gap.27 Here, the
work injury undisputedly caused initial injury to Mr. Anderson.28 Furthermore, the
Board accepted Mr. Anderson’s testimony that he was suffering no pain or
limitations before the accident but suffered them consistently after the accident. At
a minimum, Dr. Newell’s testimony, after his redirect, provided a permissible
inference that the accident constituted a possible cause of the disputed treatment and
wage loss. That inference, in conjunction with the other evidence of record, would
have been independently sufficient to sustain the Board’s decision.
15. Finally, the subjective versus objective issues likewise do not control
this appeal. In this case, all such issues fall within questions of witness credibility
and the weight due the evidence. Those discretionary matters rest with the Board.29
Moreover, the Board remained free to disregard Dr. Rushton’s expert opinion, that
in turn had addressed the implications of many of these subjective complaints versus
objective findings.30
26
General Motors Corp. 164 A.2d at 688.
27
Id. At 689.
28
R. at Ex. 6 ¶ 2.
29
See Bullock, 1995 WL 339025, at *2 (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del.
1965) (“[t]the appellate court does not ... determine questions of credibility.”).
30
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.”); See also Glanden
v. Land Prep, Inc., 918 A.2d 1098, 1103 (Del. 2007) (“[i]t is well settled that the IAB is free to
choose between conflicting medical testimony, and that the expert testimony which is relied upon
will constitute substantial evidence for purposes of appeal.”).
7
16. On balance, the evidence of record contains substantial evidence to
support the Board’s finding that the work accident caused Mr. Anderson’s
continuing injury. There is likewise substantial evidence to support the decision that
the injury, in turn, necessitated the 2019 disputed medical treatment and wage loss.
In this regard, the Board’s decision did not exceed the bounds of reason when
considered in light of the evidence of record. Accordingly, the Board’s decision
must be sustained.
NOW THERFORE, for the reasons cited, the Board’s decision in this matter
is AFFIRMED.
IT IS SO ORDERED.
/s/ Jeffrey J Clark
Judge
cc: Walt F. Schmittinger, Esquire
John J. Klusman, Esquire
Jocelyn N. Pugh, Esquire
Industrial Accident Board
Prothonotary
8