IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
BANK OF AMERICA,

Appellant/Employer-Below,
C.A. No.: N19A-03-007 SKR

V.

VALERIE A. BROWN,

New Nee Nee Noe Nee Nee” ree “eee” eee”

Appellee/Employee-Below.

Submitted: June 5, 2019
Decided: October 10, 2019

Upon Appeal from the Industrial Accident Board:
REVERSED and REMANDED.

Paul V. Tatlow, Esq., Marshall, Dennehey, Warner, Coleman, & Goggin, Attorney
for Appellant.

Gary S. Nitsche, Esq., Katherine L. Hemming, Esq., Weik, Nitsche & Dougherty,
LLC, Attorneys for Appellee.

Rennie, J.

MEMORANDUM OPINION

Before the Court is an appeal from a February 22, 2019 Decision of the

Industrial Accident Board (the “Board” or “IAB”).! This appeal originated from

 

! Notice of Appeal from 2/22/2019 Industrial Accident Board Decision (Trans. ID. 63103334).
Valerie A. Brown’s (claimant-below, “Brown”) Petition to Determine
Compensation Due (the “Petition”) against Bank of America Corporation (“Bank of
America”). On February 22, 2019, the Board issued a written decision on the
Petition and awarded Brown compensation for past and future medical expenses.”
Bank of America promptly appealed on March 26, 2019.3 Now before the Court is
an appeal of the Board’s decision. The issue involved here is a purely legal one:
whether the IAB applied the correct legal standard to award compensation. The
Court finds that it did not and hereby REVERSES and REMANDS.
IL. FACTUAL AND PROCEDURAL BACKGROUND‘

Claimant-below, Valerie A. Brown, worked full-time for Bank of America
from 2007 to 2018.° Brown held multiple positions during this time, all of which
consisted of sitting at a desk, typing, and answering telephone calls for seven hours
per day.® Most recently, Brown worked as a Fraud Analyst by taking incoming calls

on a headset while typing on her computer.’

 

2 Record on Appeal (“R. on Appeal”), Tab 8, Industrial Accident Board’s February 22, 2019
Decision (the “IAB Decision”).

3 R. on Appeal, Tab 9, Superior Court Appeal.

* The Court will provide a brief review of the facts material in resolving the legal question involved
in this appeal. A more detailed recitation of the facts can be gleaned from the IAB Decision below.
> IAB Decision at 11.

° Id.

1 Id.
In 2017, Brown reported to her family doctor that she felt pain in her left wrist
while typing at work.® In January 2018, she began to feel numbness in her left wrist
in addition to the pain while typing.? On March 12, 2018, Brown’s left wrist
“locked-up” while typing and she reported it to her supervisor.'? She continued
working until March 20, 2018, when she began disability leave.'! On July 2, 2018,
Brown filed a Petition for Compensation Due with the IAB.”

Between June and November of 2018, a series of medical specialists
examined Brown for her pain, which was increasing and spreading up her arms and
into her neck.!? Dr. Newell, a physician certified in physical medicine and
rehabilitation, saw Brown beginning in June of 2018 and administered two injections
to Brown that were largely unsuccessful.'4 Dr. Newell diagnosed Brown with
cervical radiculopathy and referred her to Dr. Zaslavsky, an orthopedic surgeon.!°
On October 16, 2018, Dr. Zaslavsky examined Brown, concluded that she had a

substantial disc herniation in her neck and ultimately recommended spinal fusion

 

8 Id. at 2.

? Id. at 3.

'° TAB Decision at 6.

'!R. on Appeal, Tab 2, Transcript of Hearing Held January 24, 2019 (the “Transcript”) at 43.
2 R. on Appeal, Tab 1, Petition for Compensation Due.

3 TAB Decision at 2-6.

14 Td. at 3.

'S Td. at 3-5.
surgery.'© Dr. Errol Ger, an orthopedic surgeon, examined Brown in September of
2018. Dr. Ger testified on behalf of Bank of America at the Board hearing.!”

The Board held a hearing on January 24, 2019 to determine whether Brown’s
medical issues qualified as compensable injuries under Delaware law.'* The issue
in contention was whether Brown’s injuries were causally related to her work
duties.!? The parties presented opposing expert testimony on the causal relationship
of Brown’s work duties to her injuries.2? For Brown, Dr. Zaslavsky described in
medical terms how leaning forward in a seated position can slowly cause the type of
injury that Brown sustained and testified that Brown’s disc herniation was “related
to cumulative trauma from her work.”?! For Bank of America, Dr. Errol Ger opined
that any movement of the cervical spine during daily activities can cause the
progression of the underlying degenerative disease, but Brown’s work duties were
not a “significant contributing factor.”

The Board decided that the lack of a discrete work accident in Brown’s case

meant that they should assess Brown’s claim under an alternative causation standard

 

16 Td. at 6-8.

"7 Td. at 14.

18 TAB Decision at 2.

19 Td. (“Employer disputes the casual [sic] relationship of the symptoms to Claimant’s work
duties.”); Id. at 19 (‘The issue in this case was whether Claimant’s job duties or activities at work
were a substantial cause of her cervical spine disc injury.”).

20 Td. at 2-19.

2l Td. at 7-8.

22 TAB Decision at 16.
which requires a claimant to prove that her work duties were a substantial cause of
her injury.” The Board weighed the evidence and found that, “Claimant has met
her burden of proof to show that her injury is causally related to her employment.”™
The Board then awarded Brown with compensation for incurred medical expenses,
ongoing total disability payments, and expenses for a future surgery that are
contingent upon a second opinion by a medical professional.”°
II. STANDARD OF REVIEW

This Court has appellate jurisdiction over IAB decisions under Title 29 Del.C.
§ 10142. On appeal, the Court’s review is limited to determining whether the
Board’s decision is “supported by substantial evidence” and “free from legal
error.” When the issue raised on appeal from a Board decision involves
exclusively a question of law, the Court’s review is de novo.’ The Court must
consider the record in the light most favorable to the party prevailing below.”®

TI. LEGAL ANALYSIS

Brown filed her Petition pursuant to Delaware’s Workers’ Compensation

statute, Title 19 Del.C. § 2304, Compensation as Exclusive Remedy. That statute

 

23 Id. at 19 (“Because this claim is based on the ordinary stress and strain of employment, rather
than a discrete work accident, Claimant must prove that her work activities were ‘a substantial
cause of her injuries.””).

24 Id.

25 LAB Decision at 22.

26 Arrants v. Home Depot, 65 A.3d 601, 604 (Del. 2013).

27 Td. at 605.

28 Weitzel v. State, 2016 WL 4249766 (Del. Super. Aug. 9, 2016).

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requires employers to compensate employees for injuries “arising out of and in the
course of employment” regardless of fault by either party.”? Therefore, if an
employee is injured, she need only prove that the injury was caused by an event in
the normal course of her employment to receive compensation. The employee has
the burden of proving causation by a preponderance of the evidence.*®
The causation standard the Board applies depends upon whether the injury is
allegedly caused by a single incident or by work duties over time. When the injury
is allegedly caused by a distinct, identifiable work accident, the Board must find that
the injury would not have occurred but for that accident.*! In contrast, when the
injury is allegedly caused by work duties over time, the Board applies the “usual
exertion rule”, which provides that “irrespective of previous condition, an injury is
compensable if the ordinary stress and strain of employment is a substantial cause
of the injury.”
Here, the Board purportedly applied the “usual exertion rule” to assess
causation. Brown alleged, and her experts testified, that the seated posture she

maintained while performing her job put stress on her cervical spine, which slowly

wore away at the outer layers of her spinal disc until the disc ultimately herniated

 

9 19 Del.C. § 2304.

30 Goicuria v. Kauffman’s Furniture, 706 A.2d 26, 1 (Del. 1998).

31 Reese v. Home Budget Center, 619 A.2d 907, 910 (Del.1992).

32 Duvall y. Charles Connell Roofing, 564 A.2d 1132, 1136 (Del. 1989).

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when the last layer ruptured.*? Neither Brown nor her experts testified that there was
a distinct accident that caused her injury. Hence, the Board correctly identified that
the “usual exertion” rule applied when it stated, “[b]ecause this claim is based on the
ordinary stress and strain of employment, rather than on a discrete work
accident,...{t]he issue in this case [is] whether Claimant’s job duties or activities at
work were a substantial cause of her cervical spine disc injury.”**

In addressing the issue before it, however, the Board in its Decision did not
clearly answer whether Brown’s work duties were a substantial cause of her injury.
Immediately after describing the standard, the Board stated, “Claimant has met her
burden of proof to show that her injury is causally related to her employment.”*
However, the Board further stated that, “[a]lthough the Board will not go so far to
say that Claimant’s work duties were the substantial cause of the herniated disc, the
Board does find that Claimant’s degenerative disc disease in the cervical spine was
aggravated primarily by her work duties.”°° Then, in the “Statement of the
Determination”, the Board found “that Claimant sustained an aggravation of her
cervical spine degenerative condition as a cumulative result of her job duties over

time.’?”

 

33 YAB Decision at 7 (“Dr. Zaslavsky then testified about the different ways that a herniation can
occur including very slowly over time...”).

3 Td. at 19.

35 Id.

36 Td. at 19-20.

37 Id. at 22.
In these three iterations of the Board’s pronouncement on causation, the Board
employed the “substantial cause” language only once. Notably, in that sentence, the
language is used to state that Brown has not met the standard. Notwithstanding, the
Board attempted to find a sufficient causation nexus by stating that Brown’s work
duties primarily aggravated her degenerative disc disease. However, in the context
of Delaware workers’ compensation law, the causal nexus between an injury and
work duties engaged in over time is sufficient to compensate a claim only when
finding that the work duties were the “substantial cause” of the injury.** The facts
in this case do not establish a distinct, identifiable work accident, but rather an injury
caused by work duties over time. Hence, there must be a clear, unequivocal
identification by the Board that Brown’s work duties were the “substantial cause” of
her injury. The Board’s Decision fails to make such an unequivocal finding. This
Court cannot affirm a decision by the IAB that states, but fails to clearly apply, the
requisite standard to award compensation.*

Further, the Board’s finding, that Brown’s work duties were not the
substantial cause of her herniated disc but were the primary aggravator of her
degenerative disc disease, is also troubling because it made a significant distinction

between a herniated disc and degenerative disc disease. Throughout the Decision,

 

38 Duvall, 564 A.2d at 1136.
39 Tt may be that the Board simply needs to make clear its finding on “substantial cause”, but as it
stands, the Decision is unclear and creates more questions than answers.

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the Board refers to Brown’s injuries in various ways, such as “cervical spine injury”,
“cervical spine disc injury”, and “cervical spine degenerative condition”, but never
distinguishes one injury from another until discussing causation.“° The Board
appears to distinguish them by holding that the herniated disc does not meet the
relevant causation standard, but the degenerative disc disease meets a different
causation standard. Because the sentence in question*! is the only instance in the
Decision that makes this distinction, it raises questions about the relationship of the
different injuries to the evidence, testimony, and medical expenses.
IV. CONCLUSION

For the reasons stated above, the Board’s February 22, 2019 Decision is
REVERSED and REMANDED to determine whether Brown’s work duties were a
substantial cause of her injuries.

IT IS SO ORDERED.

Ax
c\. —
~Sheleerck7 Rennie

Rennie, Judge

 

40 TAB decision at 18-22.

41 Td. at 19 (“Although the Board will not go so far to say that Claimant’s work duties were the
substantial cause of the herniated disc, the Board does find that Claimant’s degenerative disc
disease in the cervical spine was aggravated primarily by her work duties.”).

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