       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                           )
                                           )
 REGINALD MURPHY,                          )
                                           )
            Appellant                      )
                                           )     C.A. No. N18A-06-003 CLS
             v.                            )
                                           )
 DELAWARE TRANSIT CORP.,                   )
                                           )
             Appellee.                     )
                                           )
                                           )

                         Date Submitted: December 31, 2018
                          Date Decided: February 4, 2019

               Upon Consideration of Appellant’s Appeal from the
                             Industrial Accident Board.
                                   AFFIRMED




A. Dale Bowers, Esquire, Law Office of A. Dale Bowers, P.A., 203 N. Maryland
Avenue, Wilmington, Delaware, 19804. Attorney for Appellant.


John J. Klusman, Esquire, Tybout Redfearn & Pell, 750 Shipyard Drive, Suite 400,
Wilmington, Delaware, 19801. Attorney for Appellee.


Scott, J.
                                    Background

      On January 2, 2017, Reginald Murphy sustained an injury to his cervical spine

and right shoulder due to a work accident. For this injury, Murphy received total

disability benefits based on his average weekly wage at the time of the work

accident. On September 5, 2017, Murphy filed a petition with the Industrial Accident

Board for additional compensation due alleging he sustained a brachial plexus injury

at the time of the accident. Murphy’s employer, Delaware Transit Corp., disputes

the compensability of this injury and related medical expenses as to causation. On

May 14, 2018, The Board denied Murphy’s petition. Before the Court is Murphy’s

appeal from that decision.

                             The Board’s Finding of Fact

      The Board determined that Murphy failed to meet his burden of proof to

support the finding for any compensable brachial plexus injury related to Murphy’s

January 2017 accident.

      The Board found the opinion of Dr. Tadduni, the Defense medical expert, to

be more convincing than that of Murphy’s treating chiropractor. The Board agreed

with the Defense medical expert that Murphy’s subjective complaints did not

comport with the objective findings of two clinical examinations. Dr. Tadduni

performed two defense medical examinations of Murphy in May and November

2017. Dr. Tadduni found that Murphy’s subjective complaints did not comport with
the objective findings of the examination. Dr. Tadduni believed that Murphy’s injury

caused a strain of his bicep at or near the elbow.

      Following his second examination of Murphy, and upon review of an EMG

study performed by another doctor, Dr. Tadduni’s opinion remained that objective

examination results did not support the diagnosis of a brachial plexus injury. Dr.

Tadduni opined that EMG studies have a subjective aspect as to how the test is

performed, and that standing alone, the results will not be diagnostic of the injury

complained.

      The Board determined that the video showing the incident causing injury did

not show the type of traumatic, abnormal movement which would typically cause a

brachial plexus injury.1 The Board noted that typical brachial plexus injuries are

caused when the head or shoulder go in one direction and the arm in the other

direction. The Board noted that the video evidence showed Murphy using his arm

after the incident, taking notes, fastening his seatbelt, and dislodging something from

the side of the bus.

      The Board did not find the causation opinion of Dr. DiCola to be convincing

as to any brachial plexus injury related to the January 2017 accident. The Board also

determined Dr. DiCola’s testimony to be inconsistent. Dr. DiCola treated Murphy



1
 Murphy v. Delaware Transit Corp., IAB Hearing No. 1451879 (May 14, 2018), at
11, 12.
from January 2017 to September 2017 for his work injury. This treatment included

75 visits, treating a cervical disk problem and glenohumeral shoulder compromise.

Only after an EMG study several months after treatment began did Dr. DiCola

diagnose the brachial plexus injury, opining such an injury could result from any

trauma or injury to the lower cervical spine roots. This opinion was inconsistent

with the Defense medical expert. The Board noted that Dr. DiCola did not change

Murphy’s chiropractic treatment after the EMG study, eventually discharging

Murphy from his care “for the work injury.”2

      Additionally, the Board did not find Murphy’s own testimony to be wholly

reliable to support his claimed brachial plexus injury related to the January 2017

injury. The Board noted Murphy’s complaints of worsening pain were based on

diffuse and multiple subjective complaints.3 The Board relied on Murphy’s lack of

credibility in discounting the testimony of Dr. DiCola, as a physician’s diagnosis

and opinion are based on the veracity of a claimant’s complaints.4

                               Standard of Review

      On appeal from the Industrial Accident Board this Court does not sit as a trier

of fact with authority to weigh evidence, determine credibility, and make its own




2
  Murphy v. Delaware Transit Corp., at 13.
3
  Id. at 14.
4
  Id.
factual findings and conclusions.5 The Court’s role is limited to determining whether

the IAB’s conclusions are supported by substantial evidence and free from legal

error.6 Substantial evidence is “such reasonable evidence as a reasonable mind might

accept as adequate to support a conclusion.”7 When factual determinations are at

issue, the Court will take into account the experience and specialized competence of

the Board, and limit its review to a determination of whether the Board’s decision is

supported by substantial evidence.8

                                      Analysis

      In this case the Board has supported its decision with substantial evidence,

and that decision is free from legal error. The Board determined that Murphy failed

to meet his burden of proof that a brachial plexus injury accompanied the January,

2017 work injury.

      In cases where there is a substantial amount of medical evidence and the

experts disagree, the need for clearly articulated findings is crucial, as it is the

Board's function to resolve conflicts in the evidence presented.9 When the Board’s



5
  Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
6
  Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007).
7
  Roos Foods v. Guardado, 2016 WL 6958703, at *3 (Del. 2016); Olney v.
Cooch, 42 A.2d 610, 614 (Del. 1981).
8
  29 Del. C. § 10142 (d), see also Lopez v. Parkview Nursing Home, 2011 WL
900674, at *3 (Del. Super. Ct. 2015).
9
  Carey v. H & H Maint., Inc., 2001 WL 985114, at *2 (Del. Super. Ct. 2001), aff'd,
792 A.2d 188 (Del. 2002).
decision rests solely on the persuasiveness of deposition testimony, and not specific

findings of fact, there is an insufficient foundation for appellate review.10

      In its May 14, 2018 decision, the Board specified that it found the testimony

of Dr. Tadduni more convincing than that of Dr. DiCola. The Board articulated the

evidence it relied upon to reach its decision, addressing conflicts in the witnesses’

testimony as necessary. The Board found that Dr. Tadduni’s examinations of the

Claimant did not yield an objective diagnosis of a brachial plexus injury, despite the

Claimant’s subjective complaint otherwise. The Board found that as of Dr.

Tadduni’s first medical exam in May 2017, objective testing did not support the

diagnosis of a brachial plexus injury. At that time Dr. Tadduni believed that the work

injury caused a strain of the biceps at or near the elbow.11

      Dr. Tadduni’s opinion after his second examination in November 2017, was

consistent with his initial opinion; the objective results of the examination did not

support a brachial plexus diagnosis.12 Dr. Tadduni and the Board agree that the

results of Murphy’s EMG study, standing alone, are insufficient to diagnose a

brachial plexus injury.

      The Board agreed with Dr. Tadduni’s observation that the video of the

accident causing injury did not show the type of traumatic jarring or abnormal


10
   Carey v. H & H Maint., Inc., at *2.
11
   Murphy, at 11.
12
   Id.
movement normally associated with a brachial plexus injury. 13 In agreeing with Dr.

Tadduni, the Board stated that it was not convinced by Dr. DiCola’s causation

opinion that a brachial plexus injury could result from any trauma to the lower

cervical spine roots.

      The Board expressed skepticism of Dr. DiCola’s diagnosis and causation

opinion. The Board noted Dr. DiCola’s treatment did not change as a result of the

EMG study. However, after a July 2017 MRI showed pre-existing cervical spine

herniation and radiculitis, Dr. DiCola referred Murphy for a surgical diagnosis.14

The Board further noted the confusing discord between Dr. DiCola’s opinion that

Murphy is not fully recovered from the work accident, despite discharging him from

care “for the work injury,” and his recommendation of continued twice weekly

chiropractic maintenance visits.15

      The Board also took note of the discrepancy between the testimony by Dr.

DiCola and Murphy. The Board determined that Murphy’s own testimony was not

wholly reliable.16 While Dr. DiCola agreed that his monthly reports indicated

chiropractic treatment continued to improve cervical range of motion, Murphy’s

own testimony was that his symptoms continued to worsen during the same period.



13
   Id. at 12.
14
   Murphy, at 13.
15
   Id.
16
   Id. at 14.
        The Board is free to reject an expert’s conclusion as to causation when the

expert's opinion is based upon the patient's subjective complaints and the Board finds

the underlying facts to be different.17 The Board determined Murphy’s “diffuse and

multiple subjective complaints” did not support a finding that a brachial plexus

injury accompanied the injuries previously accepted by the employer.18

                                     Conclusion

        The Industrial Accident Board’s decision to deny additional benefits due for

a brachial plexus injury is supported by substantial evidence. The decision is

unambiguous and free from legal error. Therefore, the Board’s decision to deny

additional benefits on the January 2017, injury claim is Affirmed.



                                                    /s/ Calvin L. Scott
                                                    Judge Calvin L. Scott, Jr.




17
     Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
18
     Murphy, at 14.
