IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

HARVEY HANNA ASSOCIATES, _)
Appellant, 5

Vv. 5 C.A. No. N19A-08-001 CLS
WILLIAM SHEEHAN,
Appellee.

Date Submitted: March 2, 2020
Date Decided: June 5, 2020

Upon Consideration of Appellant Harvey Hanna Associate's Appeal from the
Industrial Accident Board
Affirmed.

Andrew J. Carmine, Esquire, Elzufon Austin & Mondell, Wilmington, Delaware,
Attorney for Appellant.

Frederick S. Freibott, Esquire, The Freibott Law Firm, P.A., Wilmington, Delaware,
Attorney for Appellee.

SCOTT, J.
Before this Court is Appellant Harvey Hanna Associates’ (“Appellant”)
appeal from a decision of the Industrial Accident Board (“Board”)! finding that
Appellee William Sheehan was due additional compensation. For the following
reasons, the Board’s decision is AFFIRMED.

Background’

William Sheehan injured his head while working for Appellant on August 5,
2013. Sheehan received total disability benefits from August 5, 2013 through
December 11, 2015, at which time Sheehan voluntarily terminated his entitlement
to total disability benefits. On July 3, 2018, Sheehan filed a Petition to Determine
Additional Compensation Due, seeking a finding that he suffered a recurrence of
total disability effective January 25, 2018. After the Board held a hearing on
Sheehan’s petition, the Board found that Sheehan suffered a recurrence of total
disability and that Sheehan was entitled to additional compensation.

Parties’ Assertions
Appellant argues that the Board committed legal error when it found

Sheehan’s total disability recurred on January 25, 2018. Appellant argues that there

 

' The Court acknowledges that the instant case is an appeal from a decision of a
hearing officer and not the Industrial Accident Board. For brevity’s sake, the
Court will use the term “Board” to refer to the decision-making body. See 19 Del.
C. § 2301 B(a)(3) (“{T]he hearing officer’s decision has the same authority as a
decision of the Board and is subject to judicial review on the same basis as a
decision of the Board.”).

2 All the facts laid out herein are from the Board’s Decision on July 1, 2019.

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was not substantial evidence supporting the Board’s decision; in fact, Appellant
argues, there was sufficient evidence to the contrary. Appellant contends that the
Board made inconsistent findings when it found that Sheehan suffered a recurrence
of total disability when it had already found, in 2018, that Sheehan’s treatment was
improving his condition.

In response, Sheehan argues that the Board’s decision was free from legal
error and was supported by substantial evidence. Sheehan contends that the Board
properly found the change in his condition to be the four, week-long hospitalizations
that Sheehan has had to endure since he voluntarily agreed to “partial disability”
status in December 2015, Sheehan acknowledges that the Board received conflicting
medical testimony about Sheehan’s ability to work. However, Sheehan argues that
the Board decides issues of credibility; thus, Sheehan contends that the Board
permissibly found his witnesses to be more credible than Appellant’s witness.

In reply, Appellant argues that the Board applied the wrong legal standard
when it found a recurrence of Sheehan’s total disability. According to Appellant,
the Board needed to evaluate whether Sheehan’s condition worsened; instead, the
Board evaluated whether there was a change in Sheehan’s treatment, which,
Appellant argues, is not the legal standard. Finally, Appellant reiterates its argument
that there was no evidence in the record showing Sheehan’s condition worsened and

that, instead, there was substantial evidence to the contrary.
Standard of Review

On an appeal from a decision of the Industrial Accident Board, this Court
determines whether the Board’s conclusions are supported by substantial evidence
and are free from legal error.? The Court does not weigh the evidence, determine
questions of credibility, or make its own factual findings. Instead, it evaluates
whether the evidence is legally adequate to support the Board’s factual findings.
“If the record supports the Board’s findings, the [C]ourt must accept them even
though, acting independently, the [Court might reach different conclusions.”°

Discussion

After a claimant voluntarily terminates his benefits, the claimant bears the
burden of establishing his right to additional benefits by showing that he suffered a
recurrence of total disability.© The Delaware Supreme Court defines “recurrence”
as “the return of an impairment without the intervention of a new or independent
accident.”’ Work restrictions that continue to impair an individual in the same

manner do not support a finding that the individual had a recurrence of total

 

3 Bedwell v. Brandywine Carpet Cleaners, 684 A.2d 302, 304 (Del. Super. 1996)
(citing General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960)).

429 Del. C. § 10142(d); Bedwell, 684 A.2d at 304.

5 Parke v. Sunrise Assisted Living, Inc., 2005 WL 268044, at *1 (Del. Super. Jan.
31, 2005).

6 Chubb v. State, 961 A.2d 530, 535 (Del. 2008); Cullen v. State, 2007 WL
1241841, at *1 (Del. Apr. 30, 2007).

7 Chubb, 961 A.2d at 535 (emphasis in original); DiSabatino & Sons, Ine. v.
Facciolo, 306 A.2d 716, 719 (Del. 1973).

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disability. If a condition has not changed for the worse, then no “recurrence” has
occurred.”

The Board did not commit legal error when it concluded that Sheehan suffered
a recurrence of total disability. The Board identified Sheehan’s “somewhat regular
yearly weeklong hospitalizations” as the change in Sheehan’s condition. Sheehan
had not undergone these hospitalizations prior to his voluntary termination of
benefits on December 11, 2015. Appellant would like this Court to conclude that
the Board applied the wrong legal standard because new treatment does not equate
to a worsened condition. However, the necessity of these hospitalizations evidences
how Sheehan’s condition worsened since he voluntarily terminated his benefits.'°
Prior to his voluntary termination of benefits, Sheehan was not hospitalized for a
week on an almost annual basis. After his voluntary termination of benefits,

Sheehan needed to be hospitalized for a week on an almost annual basis. Therefore,

 

8 Id. at 535-36 (“Furthermore, a slight change in impairment will not support a
finding of recurrence in total disability. Because a slight change in impairment
does not support a finding of recurrence, neither does a continuation of
impairment.”).

9 Robbins v. Helmark Steel, 2011 WL 4436762, at *3 (Del. Sept. 26, 2011); Chubb,

961 A.2d at 535.

10 Cf Publisher’s Circulation Fulfillment v. Humber, 2003 WL 1903777, at *3
(Del. Super. Apr. 17, 2003) (finding that there needed to be evidence of a change
in circumstances before the Board could find recurrence); Bradley v. Waco
Scaffolding & Equip., 1997 WL 819131, at *2 (Del. Super. Dec. 8, 1997)
(requiring evidence of a change in condition between the time of voluntary
termination and the filing of the petition in order to find recurrence).

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the Board did not commit legal error when it concluded that Sheehan’s condition
worsened and he suffered a recurrence of total disability.

Furthermore, there was substantial evidence supporting the Board’s
conclusion that Sheehan suffered a recurrence of total disability. Dr. Cramer,
Sheehan’s family physician, testified during the hearing about Sheehan’s
hospitalizations. Appellant does not dispute that these hospitalizations occurred;
instead, Appellant highlights other evidence in the record showing that Sheehan’s
condition was improving. Although Sheehan’s treatment might have been helping
reduce his everyday pain, this does not mean that Sheehan’s condition was not worse
on January 25, 2018 than it was on December 11, 2015. There is some evidence in
the record showing that on January 24, 2018 Sheehan fe/t the best that he had felt
since the accident, but this does not mean that Sheehan’s condition was not worse.
By January 25, 2018, Sheehan had already been hospitalized three times to treat
headaches that were “totally out-of-control” and could not be treated by any other
method. Sheehan also had to be hospitalized for a fourth time on April 10, 2018.
Further, Sheehan had “mostly bad days” in July 2018 and during the winter holidays
in 2018. Although one doctor found that Sheehan was not “totally disabled,” three

other doctors found that Sheehan was “totally disabled.”'! Accordingly, the Court

 

'| See Popken v. State, 2013 WL 1871754, at *3 (Del. Super. Apr. 23, 2013) (“The
role of the Court is not to overturn the Board's credibility determinations where, as
here, such determinations are supported by substantial evidence.”); Parke, 2005

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finds that there was substantial evidence in the record supporting the Board’s finding
that Sheehan suffered a recurrence of total disability.
Conclusion
For the forgoing reasons, Appellant’s Appeal from the Board’s decision is
DENIED and the Board’s decision is AFFIRMED.

IT IS SO ORDERED.

aie)

The Honorable Calvin L. Scott, Jr.

 

WL 268044, at *2 (“In a battle of the experts, the Board is free to choose between
the opinions and the court’s role is limited to determining whether the evidence
relied upon is legally adequate to support the Board’s findings.”).

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