IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

PERDUE FARMS, INC.,

Appellant,
v. : C.A. No. S19A-07-003 RFS
JOHN ATKINSON,

Appellee.

ORDER

Submitted: 11/18/2019
Decided: 12/30/2019

On Appeal from a Decision of the Industrial Accident Board.
Affirmed.

Kristen 8. Swift, Esq. and Francis X. Nardo, Esq., 750 Shipyard Drive, Suite 400,
Wilmington, DE 19801, Attorneys for Appellant.

Andrea G. Green, Esq., 28412 Dupont Boulevard, Suite 104, Millsboro, DE 19966,
Attorney for Appellee.

I. INTRODUCTION
This an appeal from the Industrial Accident Board (“Board”). Appellant Perdue Farms,

Inc. (“Employer”) appeals from the June 26, 2019 Board decision, awarding John Atkinson
(“Atkinson”) total disability benefits. For the reasons stated herein, the Board’s decision is

AFFIRMED.
Il. FACTUAL AND PROCEDURAL HISTORY

Atkinson alleged that he suffered an injury while working for Employer on September
10, 2018. Atkinson had worked for Employer for approximately one year at the time of the
alleged work accident. He had worked as a jack driver for two to three weeks when the accident
occurred. Atkinson’s job duties included moving tanks filled with poultry wings. On September
10, 2018, while moving tanks, Atkinson struck his head on a piece of pipe. He was wearing his
hard hat when he struck the bar. The strike caused his head to “jolt back.”! Following the
incident, Atkinson reported pain and vibration from his right ear to his right shoulder.

Atkinson reported the incident to his supervisor and continued working. On September
11, 2018, upon completing his shift, Atkinson sought treatment at Beebe Medical Center.
Atkinson also completed a report of the incident at Employer’s Wellness Center which is
required for all accidents that occur on Employer’s premises. He saw a doctor at the Wellness
Center on September 24, 2018 and reported pain in his ear and shoulder and tingling in his
fingers. Atkinson was referred to a neurologist. Treatment records indicated that, in October,
2018, Claimant treated with a neurologist and was found to have abnormal skin sensation, night
pain, pins and needles, and tingling sensation on the right neck, shoulder and right arm.” In
December, 2018, Atkinson had a neck MRI and, based on those results, Atkinson’s primary care
provider took him out of work and referred him to Dr. Bohman.?

On cross-examination, Atkinson further provided that he went to the hospital in

December after another neck injury sustained while working at home. Atkinson testified that he

experienced muscle pain to his neck when he was looking up while painting his wall.* Both

 

' Appellant’s Br. Ex. A at 20.
2 Id.
3 Atkinson had an upper extremity EMG on December 5, 2018. Dr. Bohman reported that the EMG findings neither

supported nor refuted his diagnosis of Atkinson. /d. at 9.
* Appellant’s Br. Ex. B at 63.
medical experts were unaware of this subsequent injury. Atkinson did not report the subsequent
injury, claiming it was a muscle strain.°

Dr. Bohman, testifying on behalf of Atkinson, concluded that Atkinson’s work
restrictions were reasonable and necessary and related to the work injury that occurred in
September, 2018.° Dr. Bohman testified that he was unaware of any prior or subsequent neck
injury. Both Atkinson and Dr. Bohman testified that Atkinson’s symptoms began following the
work accident and progressively worsened until Atkinson had surgery in January, 2019. Dr.
Bohman placed Atkinson on a no work restriction on January 10, 2019.

Employer also provided medical expert testimony at the Board hearing. Dr. Rushton,
testifying on behalf of Employer, determined that Atkinson had sustained a cervical spine sprain
or strain as a result of the work injury. Both Dr. Rushton and Dr. Bohman agreed that Atkinson’s
treatment records did not indicate cervical spine complaints prior to the work accident. However,
Dr. Rushton claimed that the neck symptoms were outside of the expected time frame post-
injury.’ Dr. Rushton further claimed that Atkinson’s progressively worsening symptoms are
inconsistent with a conclusion of a cervical spine strain or sprain as a result of the work injury.

Considering the testimony of both medical experts and the testimony of Atkinson, the
Board determined that Atkinson was entitled to compensation for the work injury. The Board
concluded that Atkinson’s treatment history, since the work accident, indicated continued and
progressively worsening cervical spine symptoms. The Board found Dr. Bohman’s testimony

persuasive and concluded that Atkinson had proven that his alleged work injuries were causally

 

> Appellant’s Br. Ex B at 55.

° Dr. Bohman concluded that Atkinson had multilevel stenosis which had been asymptomatic before the work
accident but was rendered symptomatic by the work accident.

7 Dr. Rushton determined that Atkinson, who Dr. Rushton reports had pre-existing cervical stenosis, had a high risk
of developing cervical myelopathy at some point in his lifetime and the work incident did not impact his need for
treatment or surgery. Appellant’s Br. Ex. A at 16-17.

8 Id. at 21.
related to his work activities, therefore, he was entitled to total disability benefits.” The Board
explained:

Claimant’s treating surgeon, Dr. Bohman, is in a better position to evaluate

Claimant’s symptoms and assess his need for treatment and the Board finds his

testimony persuasive. Furthermore, as detailed above, Claimant’s treatment

history since the work accident indicates continued and progressively worsening

cervical spine symptoms, which did not begin to improve until Claimant’s

January 30, 2019 surgery.!°

Employer now appeals the Board’s decision claiming that the Board’s decision is not
supported by substantial evidence and the Board committed legal error by relying on Dr.
Bohman’s testimony because he was unaware of Atkinson’s subsequent injury that occurred at
home in December, 2018.

iI. DISCUSSION

On appeal from a Board decision, the Court's role is limited to determining whether the
Board's conclusions are supported by substantial evidence and free from legal error.'! Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”'” Legal issues decided by the Board are reviewed de novo.'? “On appeal, this Court
does not sit as trier of fact with authority to weigh the evidence, determine questions of
credibility, or make its own factual findings. It merely determines if the evidence is legally
adequate to support the Board's findings.” !* “Weighing the evidence, determining the credibility

of witnesses, and resolving any conflicts in the testimony are functions reserved exclusively to

the Board.”>

 

° Id. at 25.

10 7q at 21,

"' Morgan Properties Payroll Servs., Inc. v. Bowers, 2017 WL 2350108, at *2 (Del. Super. Ct. May 31, 2017).
'2 Olney v. Cooch, 425 A.2d 610, 614 (Del.1981).

3 Whitney v. Bearing Const., Inc., 93 A.3d 655 (Del. 2014).

‘4 Lecompte v. Christiana Care Health Sys., 2002 WL 31186551, at *2 (Del. Super. Ct. Oct. 2, 2002).

5 Noel-Liszkiewicz v. La-Z-Boy, 68 A.3d 188, 191 (Del. 2013).

4
This case comes down to whether the Board abused its discretion by relying on an
expert’s testimony where that expert was unaware of a subsequent injury. Employer challenges
the weight and credibility afforded by the Board to Dr. Bohman’s testimony because Dr.
Bohman was unaware of an injury Atkinson sustained in December, 2018 while working at
home.

Employer contends that Dr. Bohman’s opinion could not sustain Atkinson’s burden of
proof because he was missing a critical piece of information — the subsequent injury. Dr.
Bohman was unaware of the subsequent injury, however, he reviewed Atkinson’s treatment
records immediately following the work accident and confirmed that the treatment records from
the day after the work accident confirmed his findings.'® Dr. Bohman did not exclusively rely on
Atkinson’s medical records following the December, 2018 injury in forming an opinion. He
considered Atkinson’s treatment following the work accident when making his conclusion.

Furthermore, “the absence of evidence, as long as it is considered by the Board, is not
necessarily dispositive of a particular issue.”!” In Whitney v. Bearing Const, Inc., the Supreme
Court addressed a Board decision where the expert, on whose testimony the Board relied, was

unaware of a subsequent injury.'® The Court stated that “[t]he Board is free to make its own

inferences, weigh evidence, determine questions of credibility, and make its own factual findings

 

'© Appellant’s Br. Ex. A at 11.

'’ Whitney v, Bearing Const., Inc., 93 A.3d 655 (Del. 2014) (citing Steppi v. Conti Elec., Inc., 991 A.2d 19 (Del.

2010)).

18 Tq. Reversing the Superior Court’s decision, the Court stated:
The Board chose to rely on the testimony of Dr. Uthaman, the results of the MRI, and Whitney's
own testimony over the testimony of Dr. Piccioni. Although we do not condone the fact that
Whitney kept information about the 2010 Incidents from Doctors Uthaman and Piccioni, the
record indicates that the Board fully considered the 2010 Incidents and relied on substantial
evidence to conclude that they were nothing more than temporary aggravations. [T]he Board is
entrusted to find the facts in any given case, and its findings of fact must be affirmed if supported
by any evidence, even if the reviewing court thinks the evidence points the other way.

5
and conclusions.”!? The Board, in this case, determined that the disability related back to the
work accident. The Board, while relying on the evidence and testimony before them, is free to
draw that conclusion.

Employer also contends that the Board failed to consider the impact of the subsequent
injury. The Board made reference to the December injury; however, in making its determination,
it found the testimony and evidence indicated that Atkinson’s injury was related to the work
accident.° The Board was presented with testimony from both Atkinson and his treating
surgeon, Dr. Bohman. The evidence showed that Atkinson did not treat for neck symptoms prior
to the work accident but immediately began treatment following the work accident. Both Dr.
Bohman and Atkinson testified that Atkinson’s neck symptoms progressively worsened
following the work accident. In addition, the Board found that Atkinson’s treatment history
indicated that his symptoms had progressively worsened since the work accident in September.
“When medical testimony is supplemented by other credible evidence, such evidence is
sufficient to sustain an award under the substantial evidence standard.”*!

The Board chose to rely on the medical testimony of Dr. Bohman and Atkinson.” The
Board may give whatever weight it chooses to a claimant’s testimony. The Board gave little
weight to the subsequent injury in determining if Atkinson’s disability related to his work injury.
Though Employer disagrees with this, it is within the Board’s discretion. There is sufficient
evidence to support the Board’s finding and, therefore, the Board’s decision is supported by

substantial evidence.

 

'9 Id.

20 The Board noted “[w]hile doing work around his home in December 2018, Claimant ‘strained’ his neck.”
Appellant’s Br. Ex. A at 5.

21 Whitney v. Bearing Const., Inc., 93 A.3d 655 (Del. 2014).

°? The Board noted that the “testimony and evidence was consistent and supports a finding that, on September 10,
2018, Claimant sustained an injury which causally related to his work for Employer.” Appellant’s Br. Ex. A at 20.

6
V. CONCLUSION

Considering the foregoing, the Board’s decision is AFFIRMED. The Board’s decision

was supported by substantial evidence and free from legal error.

IT IS SO ORDERED.

 

 

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