Rosenblum v. City of Wilmington

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DAVID ROSENBLUM, )
)
Appellant, )
)
v. ) C.A. No. N23A-09-006 JRJ
)
CITY OF WILMINGTON, )
)
Appellee. )
Date Submitted: July 23, 2024
Date Decided: August 20, 2024
ORDER
This 20th day of August, upon appeal from the Industrial Accident Board
(“IAB” or “Board”), the parties’ briefs, and the record below, IT APPEARS
THAT:
(1) Appellant David Rosenblum (“Rosenblum”) appeals a decision of the
Board denying his compensability claim for his left shoulder injury.1 On July 19,
2017 while employed with the Wilmington Police Department, Rosenblum
sustained a compensable right shoulder injury which required surgery.2 Following
the right shoulder surgery, Rosenblum claims he started experiencing pain in his left
shoulder from overcompensation during recovery from his right shoulder surgery,
1
Appellant’s Opening Brief on Appeal, Ex. A, Trans. ID 72611744 (Mar. 26, 2024) (“Decision
on Petitions to Determine Additional Compensation Due”).
2
Appellant’s Opening Brief on Appeal at 3, Trans. ID 72611744 (Mar. 26, 2024) (“Appellant’s
Opening Br.”).
which resulted in a left shoulder surgery on September 14, 2020. 3 Rosenblum then
sought compensation for the left shoulder injury, and the Board held a consolidated
hearing on July 6, 2023 to determine the permanency of his right shoulder injury as
well as the compensability of the left shoulder injury.4 The Board issued its decision
on August 25, 2023, finding Rosenblum had a permanency rating of 11% in his right
shoulder and denying his compensability claim for his left shoulder.5
(2) On September 22, 2023, Rosenblum filed a limited appeal requesting a
reversal and remand of the Board’s decision due to evidentiary violations that
occurred during the July 6, 2023 Board Hearing.6 Specifically, Rosenblum argues
the Employer failed to submit copies of documents following a series of “are you
aware” questions, thereby violating Rules 612 and 613 of the Delaware Rules of
Evidence (“DRE”).7 Due to these violations, Rosenblum argues, the Board’s
decision was based upon unsubstantiated representations.8
(3) The Employer filed a response to the Appeal on April 23, 2024, arguing
(1) Rule 612 does not require the production of documents, (2) no objections were
3
Id. at 4.
4
Id. at 4-5.
5
Id. at 14.
6
See generally id.
7
Id.
8
Id.
preserved, and (3) the Board made its determination based upon the fact it found Dr.
Gelman’s testimony more reliable than Dr. Crains’.9
(4) When reviewing a decision on appeal from the Board, the Superior
Court plays a limited role. The Court’s role on appeal is to determine whether the
Board had substantial evidence to support its findings.10 Conclusions of law are
reviewed de novo.11 The Court will review the Board’s discretionary rulings on an
abuse of discretion standard,12 only disturbing its decisions where the Board “acts
arbitrarily or capriciously, or exceeds the bounds of reason in view of the
circumstances and has ignored recognized rules of law or practice so as to produce
injustice.”13
(5) IAB Rule 16(B) provides:
The rules of evidence to the Superior Court of the State of
Delaware shall be followed insofar as practicable;
however, that evidence will be considered by the Board
which, in its opinion, possesses any probative value
commonly accepted by reasonably prudent men in the
conduct of their affairs. The Board may, in its discretion,
disregard any of the customary rules of evidence and legal
procedures so long as such disregard does not amount to
an abuse of discretion.14
9
Appellee Answering Brief, Trans. ID 72796412 (Apr. 22, 2024) (“Appellee Ans. Br.”).
10
Gen. Motors Corp. v. Freeman, 164 A.2d 686, 689 (Del. 1960).
11
LeVan v. Indep. Mall, Inc., 940 A.2d 929, 932 (Del. 2007).
12
Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225 (Del. 1991).
13
Hartman v. Unemployment Ins. Appeal Bd., 2004 WL 772067, at *2 (Del. Super. Apr. 5, 2004).
14
IAB Rule 16(B); Finocchiaro v. D.P., Inc., 2006 WL 3873257, at *4 (Del. Super. Dec. 29, 2006).
The Board may admit any evidence it believes is probative in value.15 An “abuse of
discretion” occurs when the Board “exceeds the bounds of reason in view of the
circumstances and has ignored recognized rules of law or practice so as to produce
injustice.16
(6) “Substantial Evidence” is relevant evidence “that a reasonable mind
might accept as adequate to support a conclusion.”17 Substantial evidence means
more than a “scintilla” but less than a preponderance.18 Thus, the Board may not
base its entire decision “solely upon incompetent evidence,” but may admit
incompetent evidence if there is other competent evidence to support it.19
(7) According to the Board, if there has been an accident, the injury is
compensable if “the injury would not have occurred but for the accident. The
accident need not be the sole cause or even a substantial cause of the injury. If the
accident provides the ‘setting’ or ‘trigger,’ causation is satisfied for purposes of
compensability.”20 The Board found Rosenblum failed to establish causation
between the accident and his left shoulder injury.21
15
Id.16
McDowell v. State, 1991 WL 35679, at *2 (Del. Super. Mar. 14, 1991).
17
Standard Dist., Inc. v. Hall, 897 A.2d 155, 158 (Del. 2006).
18
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
19
Schock Bros., Inc. v. Stacy, 1991 WL 113329, at *2 (Del. Super. June 18, 1991).
20
Decision on Petitions to Determine Additional Compensation Due at 22 (quoting Reese v. Home
Budget Center, 619 A.2d 907, 910 (Del. 1992) (internal quotations omitted).
21
Decision on Petitions to Determine Additional Compensation Due at 23.
(8) In support of its conclusion, the Board cites the (1) inconsistency within
Rosenblum’s medical records, (2) the persuasiveness of Dr. Gelman’s testimony and
credibility, and (3) the inconsistency of Rosenblum’s testimony.22
(9) While the Court does not find that the contents of medical records
introduced through counsel’s testimony (here, under the guise of questions) are
admissible under the DRE in this Court, IAB Rule 16(B) expressly affords the Board
discretion to allow such a practice in Board hearings so long as there is some
competent testimony and the disregard of the rules of evidence “does not amount to
an abuse of discretion.”23 Thus, the Court cannot find “that the Board’s reliance
upon statements of counsel as to the contents of those records is legal error
mandating reversal.”24
(10) As noted above, the Board may not base its entire decision solely on
incompetent evidence, but it may admit such evidence if there is competent evidence
to support it. The testimony of an expert witness is competent evidence. Thus,
regardless of whether Appellee’s counsel’s rendition of the medical records
constitutes incompetent evidence25, the Board found Dr. Gelman’s deposition
22
Id. at 23-24.
23
IAB Rule 16(B).
24
Rivera v. Arthur Jackson Co., Inc., 2009 WL 418303, at *3 (Del. Super. Jan. 30, 2009).
25
Appellee’s Counsel asked Rosenblum a series of questions on cross-examination regarding
medical records that do not appear to have been produced to the Board or shown to Rosenblum
despite his requests. Examples of Appellee’s Counsel’s questions include: “[A]re you aware that
there was a record from Dr. Glassman on February 11th of 2019 where he examined the left
shoulder and he said it was normal?”; “Are you aware that a couple of those rehab chiropractor-
testimony more credible than that of Rosenblum’s expert.26 Therefore, the Court
does not find the Board abused its discretion in considering possibly incompetent
testimony. Dr. Gelman’s testimony is substantial evidence upon which the Board
based its decision.
THEREFORE, IT IS HEREBY ORDERED that the decision of the
Industrial Accident Board is AFFIRMED.
IT IS SO ORDERED.
/s/ Jan R. Jurden
Jan R. Jurden, President Judge
cc: Prothonotary
type doctors saw you in March of 2019 and they did not record any left shoulder complaint?”; and
“Are you aware that on March 11, 2019, Dr. Glassman recorded that you were denying left arm
pain?” Appellant’s Opening Brief on Appeal, Ex. D at 73-76, Trans. ID 72611744 (Mar. 26, 2024)
(“Transcript of the July 6, 2023 Board Hearing”).
26
Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006) (“Where the Board adopts
one medical opinion over another, the opinion adopted by the Board constitutes substantial
evidence for purposes of appellate review.”).