           IN THE SUPREME COURT OF THE STATE OF DELAWARE


STEVEN POWELL,                         §
                                       §
      Claimant-Below,                  §      No. 151, 2019
      Appellant,                       §
                                       §      Court Below:
      v.                               §      Superior Court
                                       §      of the State of Delaware
OTAC, INC., d/b/a HARDEE’S,            §
                                       §      C.A. No. K18A-06-001
      Employer-Below,                  §
      Appellee.                        §


                            Submitted: October 16, 2019
                            Decided: December 4, 2019

Before SEITZ, Chief Justice, VALIHURA and TRAYNOR, Justices.

Upon appeal from the Superior Court. AFFIRMED.

Walt F. Schmittinger, Esquire, Candace E. Holmes, Esquire, Schmittinger and Rodriguez,
P.A., Dover, Delaware, for Appellant Steven Powell.

Andrew M. Lukashunas, Esquire, Tybout, Redfearn & Pell, Wilmington, Delaware for
Appellee OTAC, Inc., d/b/a Hardee’s.



VALIHURA, Justice:
          This is an appeal of a March 5, 2019 decision by the Superior Court affirming a

decision by the Delaware Industrial Accident Board (the “IAB”) denying claimant-

appellant Steven Powell’s (“Powell”) petition for workers’ compensation benefits. In his

petition, Powell alleged that he suffered a work injury on December 11, 2016 while

employed by OTAC, Inc. d/b/a Hardee’s (“Hardees”). The IAB held a hearing regarding

Powell’s petition on June 5, 2018. The IAB heard testimony by deposition from a doctor

on Powell’s behalf and from a doctor on Hardees’ behalf. It also heard live testimony from

a Hardees General Manager and from Powell himself. After the hearing, the IAB denied

Powell’s petition, ruling that he had failed to establish that he injured his rotator cuff while

working at Hardees. The IAB concluded that the testimony and evidence was “insufficient

to support a finding that Claimant’s injuries were causally related to his work for

[Hardees].”1 Specifically, the IAB noted that both Powell’s “inability to report a specific

day of injury” as well as his “failure to seek medical treatment immediately” after the

alleged incident detracted from his credibility.2 Further, it found that although “both

medical experts agreed that [Powell’s] treatment was reasonable for his rotator cuff tear,

there was insufficient evidence that the rotator cuff tear occurred as the result of the alleged

work accident.”3 The Superior Court affirmed the decision of the IAB.4




1
    Powell v. OTAC, Inc., No. 1455486, at 12 (Del. I.A.B. June 14, 2018) [hereinafter Powell I].
2
    Id.
3
    Id.
4
  Powell v. OTAC, Inc., 2019 WL 1057857, at *8 (Del. Super. Mar. 5, 2019) [hereinafter Powell
II].


                                                  2
       Powell raises two issues on appeal. First, he asserts that the Board erred as a matter

of law in denying his petition, and he claims that he did present sufficient evidence to

demonstrate that his injuries occurred while working at Hardees. Second, he asserts that

the Superior Court erred in affirming the IAB’s decision and that it exceeded the scope of

review by making findings of fact unsupported by the record below.

       For the reasons set forth below, we AFFIRM the decision of the Superior Court.

          I.      RELEVANT FACTS AND PROCEDURAL BACKGROUND

                                      A. Factual Background

       Hardees employed Powell as a back line cook for a time in 2016. His duties

included cooking and handling boxes weighing approximately twenty pounds.

       On November 4, 2016, Powell fell off of a curb outside his sister’s home and landed

on his right shoulder. After he fell, Powell sought treatment at the emergency room and

had an x-ray. Powell denied receiving any further treatment and reported returning to his

regular job duties quickly following that incident.5

       Powell claims that he subsequently fell again, after slipping on a wet floor, but this

time the fall allegedly occurred while he was working at Hardees. Powell stated that he

reported the incident immediately to a woman named “Catherine,”6 and was unable to



5
  Powell did testify that the November 4, 2016 fall caused his shoulder sufficient pain that he had
to “hold” it. App. to Answering Br. at B34. On reviewing the notes relating to that fall, Dr. Kates
testified that Powell was guarding his right shoulder. Id. at B111.
6
 Powell I, No. 1455486, at 6–7. “Catherine’s” name is spelled two different ways in the decisions
below (the IAB referenced “Catherine,” and the Superior Court referenced “Katherine”). We will
use the spelling referenced in the IAB decision.



                                                3
finish his shift because he was in “too much pain.”7 Powell never returned to work at

Hardees, although he testified that he was told to not return until he was better. An injury

report was not completed at the time of Powell’s fall. Powell also stated that he did not

seek emergency treatment following the alleged work accident because he did not believe

he needed a work excuse, given that he was told to not return until he was better.8

           On December 15, 2016, Powell sought treatment from Dr. Richard DuShuttle (“Dr.

DuShuttle”), a board certified orthopedic surgeon. Dr. DuShuttle ordered an MRI, which

indicated a complete rotator cuff tear. Powell told Dr. DuShuttle about his earlier fall on

November 4, 2016, when he landed on his right shoulder and was unable to lift his arm as

a result.9 Powell also told Dr. DuShuttle that he had not received any further treatment

related to the November 4, 2016 fall other than his initial visit to the emergency room. This

led Dr. DuShuttle to conclude that Powell would not have sustained the rotator cuff tear

had he not fallen at Hardees. He believed that Powell would not have been able to work

following the November 4 fall if that fall resulted in the tearing of his rotator cuff. Dr.

DuShuttle determined that all of Powell’s treatment resulted from his alleged December 11

fall at Hardees. However, Dr. DuShuttle agreed that the November 4, 2016 injury was also

sufficient to cause a rotator cuff tear. Dr. DuShuttle reported that, “an injury as significant

as a rotator cuff tear would require immediate medical attention.”10


7
    Id. at 7.
8
 Id. Powell indicated that he initially sought treatment after his alleged fall at Hardees, but the
provider would not treat him until he obtained an injury report. Id. at 8.
9
    Id. at 6.
10
     Id. at 14.


                                                4
           Dr. DuShuttle saw Powell again on January 25, 2017, and noted that Powell’s

rotator cuff injury was consistent with Powell’s description of the injury. Dr. DuShuttle

agreed that Powell had reported on his Patient Intake Form at his January 25, 2017 visit

that his problem began on December 11, 2016, but that Powell had reported at his initial

December 15, 2016 visit that the injury “occurred several weeks ago.”11 Dr. DuShuttle

agreed that the injury Powell discussed allegedly occurred four days prior to his initial

examination of Powell on December 15, 2106. Dr. DuShuttle believed that errors in his

own notes resulted in the date discrepancies. He agreed that on the December 15, 2016

Patient Intake Form, Powell had indicated that his pain began on November 12, 2016.

           Powell completed an accident report for Hardees in “approximately February after

the alleged incident,” indicating that the alleged work accident occurred on December 11,

2016.12 Powell testified that, “we had [a] discussion that I didn’t know whether it was

November or December” and that he stated that he was not sure, “so we went with

December.”13       Tony Branch (“Branch”), the General Manager of Hardees, was not

employed by Hardees at the time of Powell’s alleged injury; however, he reviewed

Powell’s First Report of Injury. Branch agreed that the First Report of Injury was

completed in February of 2017 and that he wrote what Powell had described as occurring.

Branch determined that Powell had fallen at Hardees “at some point,” but could not confirm



11
     Id. at 5.
12
     Id. at 6.
13
     App. to Answering Br. at B26.



                                               5
the date of the incident.14 That report listed two witnesses, “Catherine” (with no last name

identified) and Jason Adam.15 Branch unsuccessfully attempted to contact Catherine at the

time he completed the First Report of Injury. Branch testified that he did speak with Jason

Adam and confirmed that Powell did fall at Hardees when Powell was in the employee

area behind the counter.16 Branch also noted the last payroll records for Powell were from

the first two weeks of November of 2016. Lastly, Branch testified that the payroll records

also indicated that Powell was terminated on November 4, 2016.17

          Powell underwent surgery on his rotator cuff on March 6, 2017.

          Hardees presented the medical testimony of Dr. Jonathan Kates (“Dr. Kates”) at the

hearing. On June 26, 2017, Dr. Kates, a board certified orthopedic surgeon, examined

Powell. During this examination, Powell represented that the injury occurred on December

11, 2016. Dr. Kates also testified that Powell denied any shoulder problems prior to the

work incident.18 However, Dr. Kates confirmed through Powell’s records that Powell had


14
     Powell I, No. 1455486, at 8.
15
     App. to Opening Br. at A48.
16
     Id. at A49.
17
     Id. at A45.
18
     The record shows that Dr. Kates testified as follows:
          Q. Okay. Now, Doctor, in your report you indicated that the incident of December
          11, 2016, if it occurred as stated and there’s no additional prior history, then it
          would be related to the work accident; is that correct?
          A. Yes.
          Q. Did Mr. Powell represent any prior shoulder problems to you?
          A. He told me he did have not [sic] any previous injury to his shoulder.
App. to Answering Br. at B110.



                                                   6
sought immediate medical attention for his right shoulder after he fell from the curb on

November 4, 2016.19 Dr. Kates reported that Powell’s fall on November 4, 2016 was

sufficient to cause a rotator cuff tear. Dr. Kates agreed that if Powell did not have a prior

history of shoulder problems, and the incident occurred on December 11, 2016 as Powell

alleged, then Powell’s injury would be related to the December 11, 2016 event.

                                       B. The IAB Decision

          On February 2, 2018, Powell filed with the IAB a Petition to Determine

Compensation Due. In his Petition, Powell alleged his right shoulder injury was causally

related to an incident that occurred at Hardees on December 11, 2016.20 Hardees disputed

that the injury was sustained while Powell was working there. The parties did agree that

Powell suffered from a complete rotator cuff tear, for which surgery was reasonable and

necessary. The parties’ pre-trial stipulation listed the date of injury as “12/11/2016.”21 His

hearing was held on June 5, 2018.22

          The IAB denied Powell’s petition, determining that “[t]he testimony and evidence

was insufficient to support a finding that Claimant’s injuries were causally related to his

work for [Hardees].”23 The IAB based its determination, in significant part, on its



19
     Powell I, No. 1455486, at 10.
20
  Id. at 2. When questioned about the date of injury at the hearing, “Claimant’s counsel indicated
the alleged date of injury was November 12, 2016 and NOT December 11, 2016.” Id. at 7
(emphasis in original).
21
     App. to Answering Br. at B126.
22
     Powell I, No. 1455486, at 2.
23
     Id. at 12.



                                                7
assessment of Powell’s credibility. It stated that his “inability to report a specific day of

injury (even close in time to the alleged injury), as well as his failure to seek medical

treatment immediately detracts from the credibility of his allegations.”24 More specifically,

the IAB explained:

           The Board finds it incredible that Claimant would be uncertain if the alleged
           work related fall occurred four days prior (December 11, 2016) to his initial
           visit with Dr. DuShuttle or nearly four weeks prior (November 12, 2016).
           Furthermore, [Powell] admitted that the date of injury on his Petition is also
           December 11, 2016; but alleges that he did not realize the actual date of
           injury, which he claimed to be November 12, 2016 by the time of the hearing,
           until he was involved in a deposition. Moreover, when [Powell] completed
           an accident report for [Hardees] in early 2017, he reported that the incident
           occurred on December 11, 2016. Thus, [Powell’s] inability to determine the
           exact date of the alleged work accident detracts from his credibility.25

           The IAB also concluded that, “[Powell’s] lack of treatment following an alleged

more significant injury detracts from his case further.”26 In this regard, the IAB found it

significant that Powell “sought immediate medical treatment following the fall from the

curb (which he alleges did not cause as severe symptoms as the alleged work accident), but

did not seek treatment for the alleged work accident for at least four weeks, despite his

report that the pain was immediate and so severe he could not complete his shift.”27 The

IAB found that there was insufficient evidence to establish that the rotator cuff injury

occurred from the alleged fall at Hardees, and concluded that Powell “failed to meet his



24
     Id.
25
     Id. at 12-13.
26
     Id. at 13.
27
     Id.



                                                 8
burden of proving that he sustained a work injury on December 11, 2016 or November 12,

2016.”28

                  C. Powell’s Appeal of the IAB Decision to the Superior Court

           Powell appealed the IAB’s decision to the Superior Court. The Superior Court

affirmed, concluding that the IAB’s decision was supported by substantial evidence and

was free of legal error. The Superior Court found that Powell was employed by Hardees

on November 12, 2016, but that Powell had failed to establish a causal connection between

his shoulder injury and an incident at Hardees.

           Although the Superior Court noted the IAB had erred in interpreting certain

evidence impacting Powell’s credibility, it found that the error was not the sole basis for

the IAB’s credibility determination. Specifically, the court said that the IAB was incorrect

in finding that Powell could not definitively state his date of injury on his initial visit to Dr.

DuShuttle on December 15, 2016, because the paperwork indicates “11-12-2016.”29 Thus,

the court found the IAB had incorrectly determined that Powell was confused during his

initial visit with Dr. DuShuttle and that Powell’s confusion occurred at a later time.30

Despite its finding that the IAB had erred in this regard, the Superior Court, nevertheless,

found that substantial evidence supported the IAB’s finding of Powell’s lack of credibility,

including Powell’s failure to seek immediate medical treatment following the alleged



28
     Id. at 14.
29
     Powell II, 2019 WL 1057857, at *6.
30
     Id.



                                                9
December 11 incident. The Superior Court also noted the IAB’s findings of “additional

date of injury discrepancies regarding the Appellant’s assertions, as documented by him

on the 2017 Hardee’s injury report, and his IAB petition.”31 The Superior Court therefore

concluded that, “the record and testimony clearly shows substantial evidence supporting

the Board’s determination regarding the Appellant’s credibility with relation to the date of

injury discrepancy.”32

          On April 4, 2019, Powell filed a timely notice of appeal to this Court.

                                II.    STANDARD OF REVIEW

          “The review of an Industrial Accident Board’s decision is limited to an examination

of the record for errors of law and a determination of whether substantial evidence exists

to support the Board’s findings of fact and conclusions of law.”33 “Substantial evidence is

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

conclusion.’”34 It is “more than a scintilla but less than a preponderance of the evidence.”35

“On appeal, this Court will not weigh the evidence, determine questions of credibility, or

make its own factual findings.”36 “In reviewing an appeal from a decision of the Board,

this Court and the Superior Court must both determine whether the Board’s decision is


31
     Id. at *6.
32
     Id. at *7.
33
  Roos Foods v. Guardado, 152 A.3d 114, 118 (Del. 2016) (citing Stanley v. Kraft Foods, Inc.,
2008 WL 2410212, at *2 (Del. Super. Mar. 24, 2008)) (internal quotation marks omitted).
34
     Id. (citing Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)).
35
     Noel-Liszkiewicz v. La-Z-Boy, 68 A.3d 188, 191 (Del. 2013).
36
     Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009)).



                                                 10
supported by substantial evidence and is free from legal error.”37 “Weighing the evidence,

determining the credibility of witnesses, and resolving any conflicts in the testimony are

functions reserved exclusively for the Board.”38             Further, “[o]nly when there is no

satisfactory proof to support a factual finding of the Board may the Superior Court or this

Court overturn that finding.”39

                                         III.    ANALYSIS

            In this opinion, we focus on the two principal claims of error Powell asserts on

appeal.40 First, he claims that the IAB erred in denying his petition because he presented

sufficient evidence to demonstrate that his injury occurred while working at Hardees.

Powell also contends that the “undisputed scientific evidence” supports his petition, and

that his delay in seeking medical treatment does not render his injury noncompensable.

Second, he contends that the Superior Court exceeded its scope of review and improperly

made findings of fact of its own. We reject Powell’s contentions as explained below.

           A. Substantial Evidence Exists to Support the Board’s Determination that Powell
                                 Failed to Present Sufficient Evidence.

             The Delaware Workers’ Compensation Act provides that employees are entitled

to compensation “for personal injury or death by accident arising out of and in the course




37
     Noel-Liszkiewicz, 68 A.3d at 191.
38
     Id.
39
     Id.
40
     To the extent Powell has raised other issues, we reject them.



                                                  11
of employment.”41 Powell had the burden of proof as the petitioner.42 As such, he had the

burden to establish that the alleged injuries occurred within the course and scope of his

employment.43 Further, “the claimant must demonstrate that a work-accident occurred,

establishing one ‘with a definite referral to time, place and circumstance.’”44 In addition,

“the claimant must also show a causal link between the accident that occurred and the

injuries he sustained.”45 All of this must be established by a preponderance of the

evidence.46

           Against this backdrop, we examine Powell’s argument that the IAB erred in denying

his petition because he presented sufficient evidence to demonstrate that a work accident

occurred causing his rotator cuff injury. He contends that his confusion of dates and failure

to seek treatment should not weigh against him. Whether an injury arose out of and in the

course of employment is essentially a question of fact. Often, as in this case, this factual

finding depends in large measure on the Board’s assessment of the credibility of the

witnesses who testify before it. It is the exclusive function of the Board to evaluate the

credibility of witnesses.47 Here, the IAB found Powell’s testimony lacking in credibility.




41
     19 Del. C. § 2304.
42
     29 Del. C. § 10125(c). (“The burden of proof shall always be upon the applicant or proponent.”).
43
     Hardy v. Eastern Quality Vending, 2015 WL 2378903, at *6 (Del. Super. May 12, 2015).
44
     Id. (citing Johnson v. Chrysler Corp. 213 A.2d 64, 66 (Del. 1965)).
45
     Id.
46
     Id.
47
     Id.



                                                  12
         Powell cites Playtex Products, Inc. v. Leonard48 for the proposition that his

confusion as to the date of the injury should not preclude him from receiving benefits. He

argues before this Court that he “apparently transpos[ed] the accident month and date.”49

In Playtex, the claimant experienced an injury while working within the scope of her duties

and informed her supervisor of the incident. She called her physician the following day,

but could not get an appointment until three or four days later. She was then referred to a

neurologist who saw her approximately a month later.50 After that visit, she was provided

with forms, and due to her injury, she had her husband fill them out. The date of incident

on the forms differed from the date of incident alleged by the claimant. Despite this

discrepancy, the Board found the claimant was credible as to the cause and place of her

injury, and that she was simply confused as to the date of her injury. In reaching this

conclusion, the Board noted that there was no evidence that the claimant had injured herself

in any other manner or location.

         However, Playtex is distinguishable because the IAB in Playtex found the

claimant’s testimony was credible as to the cause and place of her injury. Here, the IAB

found, as a factual matter, that Powell’s testimony was not credible. The IAB focused on

the fact that Powell could not say exactly when the alleged work accident occurred, noting

Powell’s statement that he “did not know if it was November or December.” The IAB also



48
     2002 WL 31814637 (Del. Super. Nov. 14, 2002), aff’d, 823 A.2d 491 (Del. 2003).
49
  Opening Br. at 16; see id. at n.4 (arguing that, “[t]he Court can take judicial notice that the two
dates Claimant identified as his date of accident, 11/12/2016 and 12/11/2016, are transposed”).
50
     Playtex Prods., 2002 WL 31814637, at *6–8.


                                                 13
found that Powell’s failure to seek medical attention immediately after the alleged work

injury negatively impacted his credibility. Even disregarding the error in the IAB’s finding

regarding Powell not identifying a date of injury during his December 15, 2016 visit with

Dr. DuShuttle, the record contains substantial other evidence to support the IAB’s

conclusion that Powell was not credible.

          Powell also argues that his delay in seeking medical treatment does not render his

injury noncompensable. Powell testified during the IAB hearing that he reported to

“Catherine” severe symptoms prohibiting him from finishing his shift; however, there is

no record of Powell pursuing medical treatment for nearly four weeks after his alleged

work incident. In contrast, Powell sought emergency treatment immediately following his

fall on November 4, 2016. Additionally, both doctors agreed that the November 4, 2016,

fall was sufficient to cause Powell’s injuries. But Powell counters that he worked at

Hardees after the November 4 fall, and he would not have been able to work had he torn

his rotator cuff. Nevertheless, the IAB concluded that if the alleged work injury occurred

as Powell testified, Powell would have required treatment immediately, based on Dr.

DuShuttle’s testimony. It concluded further that although Branch’s investigation revealed

Powell fell at Hardees “at some point . . . the evidence is insufficient to establish that that

fall resulted in any injury, much less a rotator cuff tear.”51




51
     Powell I, No. 1455486, at 13.



                                              14
          The IAB, in making its decision, may draw reasonable inferences from the

testimony,52 and considerable deference is given to the IAB's decision.53         The IAB

determined that there was insufficient evidence to show that Powell’s shoulder injury

resulted from the alleged fall at Hardees. Being mindful that “substantial evidence” need

not rise to the level of a preponderance of evidence, we conclude that the IAB’s findings

are sufficiently supported by substantial evidence. The evidence in the record before us is

such that a reasonable mind might accept it as adequate to support the IAB’s decision. The

IAB focused on various inconsistencies in Powell’s testimony as to when the fall at

Hardees occurred. It focused on Powell seeking treatment and a work note for the

November 4 fall, and his portrayal of that fall as minor. It contrasted that evidence with

his work fall that allegedly resulted in a torn rotator cuff, which Dr. DuShuttle testified

would have rendered that arm disabled. And yet, Powell testified that he did not go to the

emergency room, seek a work note, or pursue medical care for a period of weeks thereafter.

Based upon the record before us, we conclude that the IAB’s findings should not be

disturbed on appeal, and that the IAB did not err in determining that Powell failed to meet

his burden of proof.

                     B. The Superior Court Did Not Commit Reversible Error.

          Powell argues that the Superior Court erred by making independent findings of fact

that went beyond the scope of the IAB’s factual determinations. The alleged independent



52
     Playtex, 2002 WL 31814637, at *4.
53
     Christiana Care Health Servs. v. Davis, 127 A.3d 391, 394 (Del. 2015).


                                                15
findings are: mischaracterizing Powell’s confusion as “deception” by determining that

Powell attempted to deceive Dr. Kates by concealing his November 4, 2016 fall; and

concluding that Powell completed documents with date alterations by himself without the

aid of another who might have been mistaken.54 Notwithstanding Powell’s claim of error,

it is clear that the Superior Court was well aware of its scope of review. It stated that it

“defers to the Board’s expertise and competence,” and “does not weigh evidence,

determine questions of credibility, or make its own factual determinations,” which are

functions “reserved exclusively for the [I]AB.”55           Nevertheless, we have examined

carefully Powell’s contention that the Superior Court did not adhere to this standard.

          Powell’s contention that the Superior Court’s characterization of Powell’s conduct

as “deceptive” and “concealing” improperly constitutes independent fact-finding is at least

colorable. The Superior Court stated, “the Appellant continued this deception at Dr.

Kates’s office in June 2017, but went even further by attempting to conceal the November

4, 2016 fall.”56 It further stated, “the Appellant also attempted to deceive Dr. Kates




54
   Powell has not challenged the Superior Court’s independent determination of whether Powell
was employed by Hardees on November 12, 2016—perhaps understandably as that determination
was obviously favorable to him. Powell II, 2019 WL 1057857, at *4–5. Although the Superior
Court noted “the Appellant’s employment status has been raised indirectly,” id. at *4 n.60, because
“the employee must be employed by the employer when that injury occurs,” id. at *4, the IAB did
not explicitly reach this determination in denying Powell’s petition. Because Powell has not raised
this point as an issue on appeal, we do not consider it.
55
     Powell II, 2019 WL 1057857, at *4.
56
     Id. at *7.



                                                16
regarding the prior injury on November 4, 2016 and only admitted the injury when

pressed.”57

           However, the court’s statements are sufficiently supported by findings of fact made

by the IAB. The Superior Court relied upon the IAB’s finding that Powell “denied any

prior shoulder injuries” during his examination with Dr. Kates.58 Dr. Kates did not know

of Powell’s prior fall on November 4, 2016 until he confirmed the injury through Powell’s

records.59 In addition, the court cited to the IAB’s findings regarding additional documents

containing date discrepancies, including the 2017 Hardees injury report, and Powell’s IAB

Petition.60 The IAB decision noted these facts.61 Although the IAB does not characterize

Powell’s conduct as “deceptive,” the Superior Court’s description of his actions is

consistent with the underlying findings made by the IAB. Notwithstanding the stronger

terminology used by the Superior Court, we conclude, based upon our review of the record,

that there was substantial evidence to support the IAB’s finding that Powell lacked




57
     Id.
58
     Powell I, No. 1455486, at 10.
59
  Id. (“Dr. Kates noted that Claimant had denied any prior shoulder injuries at his examination,”
and “Dr. Kates confirmed that Claimant’s records indicated a November 4, 2016 fall from a curb,
for which he sought immediate medical attention for a right shoulder injury.”).
60
     Powell II, 2019 WL 1057857, at *6 n.82.
61
  See Powell I, No. 1455486, at 5–6 , 10, 13. The IAB made findings of fact regarding the different
dates between intake forms at Dr. DuShuttle’s office. See id. at 6, 13 (noting the 2017 Hardees
injury report date discrepancy); id. at 10 (noting Powell’s denial of prior injury); id. (noting Dr.
Kates’ confirmation of Powell’s history including a prior fall); id. at 13 (noting the IAB petition
date discrepancy).



                                                17
credibility. Thus, to the extent the Superior Court’s gloss on the facts is deemed an

independent finding of fact, it is not reversible error.62

           Powell also argues that the IAB did not find that Powell completed documents

himself without the aid of another, and that the Superior Court improperly determined this

on its own. In asserting this claim of error, Powell focuses on the report he completed with

Branch in February 2017. As to this point, the IAB found that, “Claimant completed an

accident report for Employer in early 2017, [and] he reported that the incident occurred on

December 11, 2016.”63 The IAB stated that, “Branch agreed that the First Report of Injury

was completed in February of 2017 and he wrote what Claimant described as occurring.”64

At the IAB hearing, Powell testified that he and Branch completed the report together and

that Branch did the actual writing.65 Powell then confirmed what Branch had written.66

This is consistent with Branch’s testimony where Branch stated that he “wrote down a


62
   Powell relies on Johnson v. Chrysler Corp., 213 A.2d 64 (Del. 1965), as an example of this
Court reversing a trial court’s decision after holding that the trial court erred by weighing evidence
and making its own factual findings and conclusions in reviewing an IAB decision. Id. at 66.
There the Superior Court reversed a decision of the IAB after making its own contrary finding of
credibility. In reversing the Superior Court, this Court said that, “the sole function of the Superior
Court, as is the function of this Court on appeal, is to determine whether or not there was substantial
competent evidence to support the finding of the Board, and, if it finds such in the record, to affirm
the findings of the Board.” Id. However, that was not done in the Johnson case. Instead, “the
trial judge weighed the evidence, determined the question of credibility of witnesses he had not
heard, and reversed the award in the face of evidence which, if accepted, would have supported
the award.” Id. at 67. Here, unlike the situation in Johnson, the Superior Court did not reverse a
decision of the IAB based upon its own contrary findings of credibility.
63
     Powell I, No. 1455486, at 13.
64
     Id. at 8.
65
     App. to Opening Br. at A29–A30; see id. at A24.
66
     Id.



                                                  18
rough draft first,”67 and then they “went over it.”68 Thus, the IAB clearly found that Powell

did have assistance in completing this report. The Superior Court stated that, “the

Appellant completed the documents, along with the date alteration, himself, without the

aid of another that might have been mistaken.”69 In addressing this point, the Superior

Court appeared to contrast the facts here with those presented in the Playtex case. In

Playtex, the claimant’s husband completed short-term disability forms following the

claimant’s visit to a neurologist who saw her a month after her injury. The claimant’s

husband mistakenly checked a box on the form that indicated that the injury was not work

related.70 He also mistakenly wrote that her symptoms first appeared six days before the

visit, rather than approximately one month prior. Here, the Superior Court pointed out that

Powell had identified December 11, 2016 as the date of injury on a number of different

documents, including his Petition,71 and that he never attempted to amend his Petition even

though he claimed the correct date of injury to be November 12, 2016. We read the

Superior Court’s statement that he completed documents himself “without the aid of

another who might have been mistaken” as an attempt to distinguish the facts here from

the claimant’s husband in the Playtex case where the husband clearly did make a mistake.



67
     Id. at A44.
68
     Id.
69
     Powell II, 2019 WL 1057857, at *7 (emphasis added).
70
     Playtex Prods., 2002 WL 31814637, at *1.
71
  Powell II, 2019 WL 1057857, at *7 (stating that Powell “subsequently altered the date of injury
to December 11, 2016 four times, and on four separate documents, including his petition to the
Board”).



                                                19
Although it is correct that the IAB found that Powell did not complete the February 2017

report by himself, the court was emphasizing Powell’s affirmation of the December 11 date

of injury on multiple occasions.        We do not believe the Superior Court committed

reversible error in this regard because under this Court’s standard of review,72 we conclude,

notwithstanding Powell’s assertions regarding the Superior Court’s analysis, the IAB’s

decision is supported by substantial evidence.

                                      IV.     CONCLUSION

       For the foregoing reasons, we AFFIRM the decision below.




72
   See, e.g. Johnson, 213 A.2d at 67 (“Only when there is no satisfactory proof in support of a
factual finding of the Board may the Superior Court, or this Court for that matter, overturn it.”).


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