      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY

MARY ANNE MACFADYEN,                    )
                                        )
     Claimant-Below, Appellant,         )
                                        )
     v.                                 )     C.A. No. N15A-05-001 ALR
                                        )
TOTAL CARE PHYSICIANS,                  )
                                        )
     Employer-Below, Appellee.          )

                       Submitted: November 2, 2015
                       Decided: December 15, 2015

                      On Appeal from Decision of the
                        Industrial Accident Board

                                  AFFIRMED

                       MEMORANDUM OPINION




Michael R. Ippoliti, Esq., Law Office of Michael R. Ippoliti, Attorney for
Claimant-Below Appellant

Aman K. Sharma, Esq., Law Offices of Chrissinger & Baumberger, Attorney for
Employer-Below Appellee




ROCANELLI, J.
         Mary Anne MacFadyen (“Claimant”) was employed as an administrative

assistant with Total Care Physicians (“Employer”) for approximately ten (10)

years.    Claimant was injured at work in September 2011 and, therefore, was

entitled to compensation.

         On May 8, 2014, Claimant filed two Petitions to Determine Additional

Compensation Due. In Claimant’s first petition, Claimant sought a finding that she

had complex regional pain syndrome (“CRPS”) of the upper left extremity and a

finding of recurrence of temporary total disability (“TTD”). In Claimant’s second

petition, Claimant sought a finding that she sustained a twenty-four percent (24%)

permanent impairment to the upper left extremity.

         A hearing on the merits on both petitions was held before the Industrial

Accident Board (“Board”) on March 19, 2015. The Board issued a decision on

April 2, 2015 (“Board’s Decision”) determining that Claimant met her burden in

establishing that she had CRPS of her upper left extremity and recurrence of TTD.

However, the Board determined that Claimant failed to meet her burden that she

sustained a twenty-four percent (24%) permanent impairment to her upper left

extremity and instead awarded Claimant a four percent (4%) permanent

impairment.

         Claimant filed a limited appeal to this Court of the Board’s Decision

awarding Claimant four percent (4%) permanency rather than the twenty-four


                                         2
percent (24%) permanency requested by Claimant. Claimant also appeals the

Board’s decision to permit Employer to utilize photographs taken from Claimant’s

public Facebook profile as impeachment evidence without prior notice to

Claimant.   For the reasons set forth below, the Board’s Decision is hereby

AFFIRMED.

                       Summary of the Board’s Decision

      Claimant was employed as an administrative assistant for Employer for

approximately ten (10) years, including in 2011 when Claimant suffered an injury

at work to her left upper extremity. In September 2011, Dr. Robert Palandjian,

Claimant’s general physician, diagnosed Claimant with carpal tunnel syndrome

(“CTS”) and soon thereafter, Dr. Douglas Patterson, an orthopedic specialist, also

diagnosed Claimant with CTS, cubital tunnel syndrome, and de Quervains

tenosynovitis. In October 2011, Dr. Patterson additionally diagnosed Claimant

with ulnar side wrist pain.   Claimant received injections to address her pain.

Nevertheless, Claimant continued to experience pain.


      In March 2012, Claimant underwent four surgical procedures involving

Claimant’s left elbow, left wrist, and left ring finger. Following the procedures,

Claimant’s condition briefly improved and Claimant returned to work in May 2012

for Employer in light duty status. On April 7, 2013, Dr. Peter Bandera, Claimant’s


                                        3
pain management physician, placed Claimant on “no-work” status because

Claimant’s symptoms worsened related to a CRPS condition and residual CTS.


       Following the March 19, 2015 hearing, the Board found in its Board

Decision that Claimant’s injuries were compensable and Claimant’s CRPS

condition and residual CTS were causally related to Claimant’s original

compensable injuries.        The Board further found that Claimant suffered a

compensable recurrence of TTD effective April 7, 2013. Specifically, the Board

found that Claimant suffered a four percent (4%) permanent impairment to her left

upper extremity. In making its decision, the Board considered the testimony of

Claimant, and the depositions of two medical experts who each physically

examined Claimant and reviewed Claimant’s medical records for purposes of

rendering an opinion on permanent impairment: (1) Claimant’s expert, Dr. Jeffrey

Meyers, a physician board certified in physical medicine and rehabilitation and (2)

Employer’s expert, Dr. Wayne Kerness, a board certified orthopedic surgeon.1


                                   Standard of Review

       The Court’s appellate review of a Board decision is limited. The Court’s

only role is to “determine whether the decision of the Board is supported by



1
  Although the Board considered testimony from Claimant’s other physicians for purposes of
causation, the Board relied only on the opinions of Dr. Meyers and Dr. Kerness with respect to
Claimant’s permanency claim.
                                              4
substantial evidence and free of legal error.” 2           Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” 3 If substantial evidence in support of the Board’s decision exists,

then the Board’s decision stands,4 even if the Court would reach a contrary

conclusion.5 In making its determination, the Court reviews the record below in the

light most favorable to the prevailing party, here Employer. 6 The Court will not

weigh the evidence, determine credibility, or make its own factual findings. 7 The

Court defers to the specialized competence and experience of the Board. 8 Absent

legal error, which is reviewed de novo, 9 the standard of review is abuse of

discretion. 10 A Board’s discretionary ruling will not be disturbed on appeal unless

it is based on “clearly unreasonable or capricious grounds.” 11 “The Board has

abused its discretion only when its decision has exceeded the bounds of reason in

view of the circumstances” so as to produce injustice. 12

2
   Standard Distrib., Inc. v. Hall, 897 A.2d 155, 157 (Del. 2006); see also Person-Gaines v.
Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009).
3
   Id. (citing Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Federal Mar.
Comm’n, 383 U.S. 607, 620 (1966)).
4
  Person-Gaines, 981 A.2d at 1161.
5
  H&H Poultry v. Whaley, 408 A.2d 289, 291 (Del. Super. 1979).
6
  Bermudez v. PTFE Compounds, Inc., 2006 WL 2382793, at *3 (Del. Super. Aug. 16, 2006).
7
  Person-Gaines, 981 A.2d at 1161; Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
8
  Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993).
9
  Person-Gaines, 981 A.2d at 1161.
10
    Id.
11
    K-Mart, Inc. v. Bowles, 1995 WL 269872, at *2 (Del. Super. Mar. 23, 1995).
12
    Person-Gaines, 981 A.2d at 1161 (internal quotation omitted); see also K-Mart, Inc., 1995 WL
269872, at *2.


                                               5
                                         Discussion

       This Court must decide whether there is substantial evidence in the record to

support the Board’s Decision to award Claimant four percent (4%) permanency.

This Court must also determine if the Board properly permitted Employer to utilize

photographs taken from Claimant’s public Facebook as impeachment evidence

without prior notice to Claimant or whether admission of that evidence was an

abuse of the Board’s discretion.


A. The Board’s Decision to award Claimant four percent permanency is
supported by substantial evidence.
       If medical evidence is in conflict, the Board, as fact finder, resolves the

conflict. 13 It is well-established that, when parties present competing experts, the

Board may rely on either expert’s opinion.14 Where the Board adopts one medical

opinion over another, the opinion adopted by the Board constitutes substantial

evidence for purposes of appellate review. 15 “It is the duty of the Board, not a

physician, to fix a percentage to a claimant’s disability based on the evidence

before it.”16




13
   Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006).
14
   Harasika v. State, 2013 WL 1411233, at *4 (Del. Super. Feb. 28, 2013) (referring to San Juan
v. Mountaire Farms, 2007 WL 2759490, at *4 (Del. Super. Sept. 18, 2007)).
15
   Person-Gaines, 981 A.2d at 1161; Munyan, 909 A.2d at 136.
16
   Turbitt v. Blue Hen Lines, Inc., 711 A.2d 1214, 1215 (Del. 1998).
                                              6
      The record reflects that the Board was not persuaded by Dr. Meyers, the

expert presented by Claimant. Rather, the Board accepted the expert testimony of

Dr. Kerness, who was presented by Employer. There was substantial evidence to

support the Board’s Decision.      Specifically, Claimant’s expert, Dr. Meyers,

assigned a twenty-four percent (24%) rating to Claimant’s permanency

impairment; however, the Board found that the twenty-four percent (24%) rating

was too high in relation to Claimant’s actual functional limitations. Indeed, in its

Board Decision the Board provide that the “Board was concerned that Dr. Meyer’s

rating process seemed to focus more on the complexity of the 2012 surgical

procedures and the multiple areas involved, as opposed to a true focus on

Claimant’s actual loss of use following her post-operative recovery.” For example,

the Board noted that Dr. Meyers focused on certain symptoms of CRPS, such as

increased hair growth and shininess in the upper left extremity, rather than

explaining Claimant’s actual limitations with respect to permanent impairment.


      The Board described as “perhaps most troubling” that Dr. Meyers testified in

the deposition that he placed Claimant in a Class II category for impairment and

provided that the Claimant “can use the involved extremity for self-care and can

grasp and hold objects with difficulty but has no digital dexterity.” However,

according to the Board, Dr. Meyers failed to adequately explain how he came to

such conclusions or otherwise make clear how often Claimant’s injured extremity

                                         7
would be low or non-functioning compared to when Claimant would be highly

functioning.17


       On the other hand, following his physical examination of Claimant,

Employer’s expert, Dr. Kerness, found there were no objective findings other than

Claimant’s surgical scarring. Claimant’s left shoulder had normal range of motion

in all planes as well as full flexibility of the left elbow and Claimant’s left wrist

showed full range of motion.            Claimant exhibited no discomfort during Dr.

Kerness’s physical examination. Claimant also admitted to Dr. Kerness that she

was not having any difficulty performing her daily activities, including cleaning,

cooking, etc. Dr. Kerness concluded that Claimant could return to regular duty

work without any restrictions and in his opinion, Claimant’s rating for permanent

impairment was only a total of four percent (4%).18 Although the Board did not

find Dr. Kerness’s opinion “all that convincing either” as he provided little

explanation for his rating, the Board accepted that Claimant had suffered four

percent (4%) total impairment.




17
   This is not to say that the Board did not find Dr. Meyers at all credible. Indeed, the Board
found Dr. Meyer’s opinion with respect to causation of Complainant’s condition persuasive.
18
   Dr. Kerness specifically concluded that Claimant’s permanent impairment is a two percent
(2%) rating attributable to left cubital tunnel syndrome and another two percent (2%) attributable
to CTS.
                                                8
       Although the testimony of Dr. Meyers and Dr. Kerness was in conflict, the

Board, as fact finder, was in the best position to resolve the conflict. 19 The Board

had the authority to rely on either expert’s opinion. 20 It is not within this Court’s

purview to determine the credibility of the witnesses or make factual findings.21

Instead, it is well-established that if the Board adopts one medical opinion over

another, the opinion adopted by the Board constitutes substantial evidence for

appellate review. 22


       Accordingly, there was substantial evidence for the Board’s Decision where,

with respect to Claimant’s permanency claim, the Board found Dr. Kerness’

medical opinion more credible than Dr. Meyer’s medical opinion considering Dr.

Meyer’s failure to explain his conclusions and where the burden was on Claimant

to demonstrate such permanency such that Claimant failed to meet her burden.


B. The Board did not abuse its discretion in permitting Employer to utilize
Claimant’s Facebook photographs as impeachment evidence.
       Claimant argues that the Board erred in permitting Employer to use

Claimant’s public Facebook photographs of Claimant holding her grandson with

her injured arm and hand as impeachment evidence against Claimant where

Employer failed to comply with the notice requirement of Board Rule 9. Claimant

19
   See Munyan, 909 A.2d at 136.
20
   See Harasika, 2013 WL 1411233, at *4 (referring to San Juan, 2007 WL 2759490, at *4).
21
   Person-Gaines, 981 A.2d at 1161; Johnson, 213 A.2d at 66.
22
   Person-Gaines, 981 A.2d at 1161; Munyan, 909 A.2d at 136.
                                             9
argues that the admission of Claimant’s Facebook images was prejudicial to

Claimant and, therefore, the Board’s Decision must be reversed.


          As a threshold matter, although Claimant states that Claimant’s Facebook

photographs were admitted into evidence, Claimant is incorrect.         The record

reflects that, during the hearing, the Board considered Claimant’s objection, took a

recess to discuss the matter, and then determined that the photographs would not

be admitted into evidence and would only be utilized for impeachment purposes.

The Board reasoned that impeachment was appropriate because Claimant testified

that she cannot hold her grandchildren or even a teacup with her injured arm and

hand; however, the photographic evidence was to the contrary. In stating that the

photographs limited purpose was for impeachment, the Board noted that

accordingly, it would give the photographs lesser weight than if they were

introduced as substantive evidence.


          Board Rule 9(B)(5)(f) requires pre-trial memorandum to contain “notice of

the intent to use any movie, video or still picture and either a copy of the same or

information as to where the same may be viewed.”23 Board Rule 14(C) gives the

Board broad discretion with respect to evidentiary decisions. Particularly, Rule

14(C) provides:



23
     Industrial Accident Board Rule 9(B)(5)(f).
                                                  10
       The rules of evidence applicable 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 persons in the conduct of their affairs. The Board may, in its
       discretion, disregard any customary rules of evidence and legal
       procedures so long as such a disregard does not amount to an abuse of
       its discretion.24

While Board Rules are to be enforced by this Court, the Court recognizes an

exception to the strict enforcement of a Board Rule where “fairness so requires.”25

Moreover, this Court’s primary focus for review is on the Board’s legal reasoning

and the not the Board’s evidentiary rulings.26


       Claimant relies on Harasika v. State for her argument that Employer was

required to give Claimant notice of its intent to use the photographs even for

impeachment purposes. 27 In Harasika, an employee suffered an injury to her left

ring finger at work.28 The employee filed a Petition for Additional Compensation

Due related to alleged ongoing injuries as a result of her work accident; however,

following a hearing, the Board determined that the employee did not meet her

burden in establishing that the injuries were a result of the original work accident.29

At the Board hearing, the employee sought to introduce photographs to impeach an


24
   Industrial Accident Board Rule 14(C) (emphasis added).
25
   K-Mart, Inc., 1995 WL 269872, at *2.
26
   Walden v. Georgia-Pac. Corp., 1994 WL 534907, at *3 (Del. Super. Aug. 19, 1994).
27
   2013 WL 1411233 at *1, *6-7.
28
   Id. at *1.
29
   Id. at *3.
                                             11
expert physician’s testimony, which suggested that the employee “provided

inconsistent accounts of her mechanism of injury.” 30 At the hearing, the Board did

not permit the employee to use the photographs.31 On appeal, the Superior Court

affirmed the Board’s decision.32 The Superior Court noted that the employee failed

to provide proper notice to use the photographs for impeachment evidence and

held that the Board was “well within its authority in refusing to permit [the

employee’s] use of these photographs.” 33


       While Claimant proposes that Harasika provides for a strict interpretation of

Board Rule 9 even with respect to impeachment, Claimant fails to consider that the

Court in Harasika did not disrupt the Board’s decision. Given this Court’s limited

role in Board decisions, particularly with respect to evidentiary considerations, this

Court also finds that the Board was well within its authority to permit Employer to

use Claimant’s Facebook photos as impeachment evidence in this context.

Particularly, the Board’s decision to permit Employer to use Claimant’s Facebook
                                                                                    34
photos as impeachment evidence was not “clearly unreasonable or capricious”

nor did it “exceeded the bounds of reason in view of the circumstances” or produce




30
   Id.
31
   Id.
32
   Id. at *7.
33
   Id. at *6.
34
   K-Mart, Inc, 1995 WL 269872, at *2.
                                         12
injustice. 35 Rather, in view of the circumstances, the Board was well within its

authority to permit Employer to use Claimant’s public Facebook photographs as

impeachment evidence because Claimant herself testified that she cannot hold her

grandchildren with her injured arm.            Accordingly, fairness so required that

Employer could impeach Claimant, including with photographs of Claimant

holding her grandchildren with her injured arm.


       Moreover, there was substantial evidence to support the Board’s Decision to

award Claimant four percent (4%) permanency independent of the Board’s

consideration of Claimant’s Facebook photographs as impeachment evidence as

discussed above.       Therefore, the use of these photographs as impeachment

evidence did not produce injustice.          According to the Board’s “Statement of

Determination,” the Board’s Decision with respect to permanency was based on

Dr. Kerness’ opinion. Dr. Kerness’ opinion did not consider Claimant’s Facebook

photographs.




35
  Person-Gaines, 981 A.2d at 1161 (internal quotation omitted); see also K-Mart, Inc., 1995 WL
269872, at *2.


                                             13
                                CONCLUSION

      The Court has examined the record below and determined that substantial

evidence supports the Board’s Decision and the Board did not abuse its discretion.

Accordingly, the Board’s Decision must be and hereby is AFFIRMED.


      IT IS SO ORDERED this 15th day of December, 2015.



                                            Andrea L. Rocanelli
                                            _____________________________
                                            The Honorable Andrea L. Rocanelli




                                       14
