          IN THE SUPREME COURT OF THE STATE OF DELAWARE

    JUAN TORRES,                            §
                                            §   No. 248, 2014
        Appellant Below-                    §
        Appellant,                          §
                                            §   Court Below—Superior Court
        v.                                  §   of the State of Delaware,
                                            §   in and for New Castle County
    REYBOLD HOMES, INC.,                    §   C.A. No. N13A-07-011
                                            §
        Appellee Below-                     §
        Appellee.                           §

                            Submitted: September 12, 2014
                             Decided: November 6, 2014

Before HOLLAND, RIDGELY, and VALIHURA, Justices.

                                        ORDER

       This 6th day of November 2014, upon consideration of the parties’ briefs and

the record below, it appears to the Court that:

       (1)    The appellant, Juan Torres, filed this appeal from a Superior Court

decision, dated April 24, 2014, which affirmed a decision of the Industrial

Accident Board (“the Board”) terminating Torres’ total disability benefits.1 After

careful consideration, we find no merit to the appeal. Accordingly, we affirm the

Superior Court’s judgment.

       (2)    The record reflects that Torres worked for Reybold Homes (“the

Employer”) as a construction worker. On March 27, 2006, he injured his right knee
1
  The Superior Court also affirmed the Board’s determination that Torres’ medical treatment,
beginning in June 2012, was reasonable and necessary. That ruling is not challenged on appeal.
while on a job site. As a result of his injury, Torres was placed on total disability

and underwent significant medical treatment, including three arthroscopic

surgeries, between 2006 and 2009.         Despite these surgeries, his knee pain

persisted. Between 2010 and 2012, Torres continued to see various doctors for

pain management. He also continued physical therapy.

      (3)    In March 2012, Torres first saw Dr. Patrick Swier who diagnosed

Torres with an injury to part of the saphenous nerve. In June 2012, Dr. Swier

performed denervation surgery. Torres experienced complications following the

surgery, which persisted. Torres walks with a cane and complains of constant

shooting pain and numbness. With pain medication, Torres is able to walk, drive

for short periods, and accomplish minor daily activities independently.

      (4)    In October 2012, the Employer filed a petition to terminate Torres’

total disability benefits. In December 2012, the Employer filed an appeal of a

Utilization Review Decision to dispute the reasonableness and necessity of Torres’

ongoing medical treatment that began in 2012. The Board held a consolidated

hearing on both petitions on April 29, 2013.

      (5)    At the hearing, the Board heard live testimony from Torres, from

Torres’ former supervisor, Paul Zachery, Jr., and from a vocational expert, Mary

Ann Shelli-Palmer. The Board also considered deposition testimony from Dr.

Swier, Dr. Damon Cary, and Dr. Elliot Leitman. Dr. Cary testified that Torres

remains totally disabled because of his constant pain, which requires pain

                                         2
medication. Dr. Leitman testified that Torres could return to work in a sedentary

or light-duty capacity. The Board also watched a videotape, which showed Torres

walking without a cane, getting in and out of a car, walking up hills and bending

his knee at a ninety degree angle.

          (6)     Ultimately, the Board found the Employer’s evidence more credible.

The Board concluded that Torres was no longer completely disabled and thus

terminated his total disability benefits. The Board also found that Torres was not a

displaced worker.           Nonetheless, the Board awarded Torres partial disability

benefits and also found that Torres’ ongoing medical treatment was necessary and

reasonable. The parties filed cross-appeals in the Superior Court. On April 24,

2014, the Superior Court upheld both of the Board’s rulings. Torres then filed the

present appeal.

          (7)     In reviewing an appeal from a decision of the Board, this Court must

determine whether the Board’s decision is supported by substantial evidence and is

free from legal error.2 Substantial evidence means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.3 It means more

than a scintilla and less than a preponderance of the evidence.4 Weighing the




2
    Stoltz Mgmt. Co. v. Consumer Affairs Bd., 616 A.2d 1205, 1208 (Del. 1992).
3
    Streett v. State, 669 A.2d 9, 11 (Del. 1995).
4
    Breeding v. Contractor-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).


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evidence, determining the credibility of witnesses, and resolving any conflicts in

the testimony are functions reserved exclusively to the Board.5

          (8)      Torres’ sole contention on appeal is that the Board erred in failing to

find that he is totally disabled. Torres contends that he is still in pain and remains

unable to work. To the extent Torres is arguing that the Board’s decision is not

supported by substantial evidence, we disagree.6 The Board carefully considered

all of the evidence presented, including the conflicting medical opinions, and found

the Employer’s witnesses were more credible.                We conclude that the Board’s

decision to terminate Torres’ total disability benefits is supported by substantial

evidence and is free from legal error.

          NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                            BY THE COURT:
                                            /s/ Henry duPont Ridgely
                                                  Justice




5
    Id. at 1106.
6
  Torres includes several documents in his appendix that were not presented to or considered by
the Board in reaching its decision below. This new evidence is not part of the record that may be
considered by this Court on appeal. See Delaware Elec. Co-op., Inc. v. Duphily, 703 A.2d 1202,
1207 (Del. 1997).


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