IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

FOOD LINER, )
Appellants, §

v. § C.A. No. Nl6A-09-015 CEB
NICKEYA HARRIS §
Appellees. §

Submitted: January 30, 2017
Decided: May l, 2017

ORDER
Upon Consideration of Appeal from the
Ina’ustrial Accident Board.
AFFIRMED
We are presented With the appeal of Food Liner (“Employer”) from a
decision of` the Industrial Accident Board (the “Board”), finding that a young
Woman should be preapproved to undergo a second surgery on her shoulder.
Finding no error Warranting reversal and substantial evidence in support of` the
decision, the Court Will affirm the Board’s findings.
BACKGROUND
Nickeya Harris (“Ms. Harris”) had a job With Food Liner cleaning out tanker

trucks With a hose. On December 12, 2013, she injured her shoulder While so

occupied, trying to free a hose that had become frozen on the ground in spilled
corn syrup. None of this is particularly noteworthy or disputed.

Ms. Harris collected disability benefits throughout 2014 and eventually
required shoulder surgery, Which Was completed in February, 2015. That surgery
Was performed by Dr. Crain, but the postoperative period remained problematic for
Harris. She continued to complain of pain in her shoulder.

Ms. Harris’ response to the surgery is subject to some dispute that We Will
discuss presently. But the rest of the history is that she eventually contacted Dr.
Morgan, a leading specialist in shoulder surgery, Who examined her and opined
that she needed a second shoulder surgery. Under Board rules, Ms. Harris
submitted a request for a predetermination that the second shoulder surgery Was
“reasonable and necessary” so that it Would be considered a compensable
Workplace related injury. Employer obtained a second medical opinion from a
different surgeon named Dr. Stevens, Who felt that surgery Was not indicated,
noting that she had not fully embraced physical therapy after the initial surgery.

Ms. Harris then consulted a third surgeon - a shoulder specialist - Dr. Craig
Morgan, Who opined that she needed a second surgery on her shoulder. This Was
the surgery for Which Harris sought approval through the Worker’s compensation

rules.

The dispute worked its way to the Industrial Accident Board, which is
empowered to make de novo findings. The Board heard deposition testimony from
Drs. Crain, Morgan and Stevens, as well as the live testimony of Ms. Harris. In a
well written, clear, thirteen page opinion, the Board ruled in favor of Ms. Harris,
finding that the second surgery was “reasonable and necessary” for her recovery
from her workplace injury. Employer has appealed on several grounds.

STANDARD OF REVIEW

The parties are in agreement on the standard of review. This Court’s duty on
appeal from the Board “is to determine whether the Board's decision is supported
by substantial evidence and free from legal error.”1 “Substantial evidence means
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”2 “Substantial evidence requires ‘more than a scintilla but less than a

”3 On appeal, the Superior Court does not sit

preponderance’ to support the finding.
as a trier of fact with authority to weigh the evidence, determine questions of

credibility, and make its own factual findings and conclusions4 The Superior

 

l Miller v. Luthemn Senior Serv., 2010 WL 702424, at *2 (Del. Super. Jan. 5. 2010).
2 Gargano v. Fooa'Lion, 2012 WL 5830695, at *7 (Del. Super. June 19, 2012).

3 Hines v. Delaware Recyclable Proa'., 2003 WL 22293656, at *3 (Del. Super. Oct. l, 2003).

4 Johnson v. Chrysler Corporation, 213 A.2d 64, 66-67 (Del. 1965).

3

Court may not overturn a factual finding of the Board unless there is no
satisfactory proof supporting the Board's finding.5
DISCUSSION

Employer’s first and most vociferous argument is that the Board erred in a
post decision ruling. The basis for this complaint has to do with Ms. Harris’ post-
surgical physical therapy. At the Board hearing, Harris testified on direct
examination that after the surgery with Dr. Crane, she was directed to physical
therapy.6 She went to therapy at ATI, located in the same building as Dr. Crane
and had a therapist named Cathy.7 But she went for “a very short time” because
“the pain was unbearable.”8

There followed cross examination in which Ms. Harris explained that she

first met Dr. Crain in the summer of 20149 and had the surgery in February, 2015.10

She was referred to physical therapy in April, 2015 by Dr. Cranell and accepted

 

5 Id.

6 Board Ex. 3 at 34-35.
7 Board Ex. 3 at 35.

8 Id.

9 Board Ex. 3 at 46.
1014

11 Board Ex. 3 at 46-47.

Employer’s counsel’s suggestion that it was “about a dozen times.”12 A later note
in Crane’s file in July, 2015 regarding Ms. Harris’ physical therapy apparently
indicated that she was doing therapy at horne but could not attend sessions at ATI
due to a transportation issue. This note was contested by Harris at the hearing13
who claimed she did not have a transportation issue with getting to therapy. What
she did have, and testified to, was a bad experience in physical therapy. Ms. Harris
testified that she went to ATI therapy in April and May, although only one bill was
produced, which suggested that she stopped attending. Ms. Harris never disputed
that she stopped attending, but she was able to provide details as to exactly what
exercises she did when she did go to therapy the few times she attended.14

In its decision, the Board found that Ms. Harris did not follow through with
physical therapy after the first surgery. Dr. Morgan, whom the Board found to be
the most credible of the surgeon witnesses to offer testimony in the case, testified
that physical therapy would not have served Harris well anyway, since her
condition would not remediate with physical therapy and she needed surgery to

remove adhesions that had developed after the first surgery. The adhesions would

 

12 Id.
13 Board Ex. 3 at 48-52.

1‘1 Board Ex. 3 at 61-62.

not resolve with physical therapy and her failure to engage made no difference in
Dr. Morgan’s diagnosis and assessment.

Still, Employer complains that after the hearing, Employer secured records
from ATI that indicated Ms. Harris appeared for an evaluation on May 28, 2015
and stopped coming after that, leading her to be discharged as an ATI client.
Employer claims this is proof of Ms. Harris’ “perjury” before the Board and the
Board failed to consider it either in its initial decision or on a motion for
reargument after rendering its initial decision. We think Employer is making a
good bit more of this than is actually there.

According to the record, ATI is a physical therapy office located in the same

5 And it is quite clear from the record that Ms.

building as Dr. Crane’s office.l
Harris underwent some physical therapy, somewhere. She testified, for example,
that she attended a session in April - presumably at ATI - at which “I went to see
Ms. Cathy and that’s when she sat down and made a schedule for me, told, me,
they gave me a pulley, told me to do at home exercises and to start moving my
arm. And basically told me, she gave me charges and everything that I’ll be doing

when l come to physical therapy.”16 Later, she testified “the nerve stimulator was

probably the best part l had. And, actually, it gave me a little bit of a relief that l

 

15 Board Ex. 3 at 60.

16 Board Ex. 3 at 59.

”17 and still later, “I would take my right arm and would

went out and got my own
go like this and they were just simple five times. And by the second time I was
like, hey, can we stop and do something different She was, like, well, l need you
to do that. Like, that hurts. lt felt like it was ripping even more.”18

So, what of all this? The Board found as a fact that Ms. Harris did not really
participate in physical therapy and the Board based its decision largely on the
opinion of the shoulder surgery specialist, Dr. Morgan, who testified that physical
therapy would not have helped anyway. So Employer’s argument that the Board
improperly failed to consider evidence that would have further undercut Ms.
Harris’ credibility as to her efforts at physical therapy simply do not take the
Employer very far.

The issue before the Board was not, as it might be in a “normal’ tort lawsuit,
whether a plaintiff mitigated her damages by doing the mandated physical therapy.
Rather, the question was whether the second surgery was “reasonable and
necessary.” The Board was clear eyed in its analysis; Ms. Harris needed a second

surgery due to adhesions that would not be improved through physical therapy.

Although Employer had a surgeon that opined that one had to do physical therapy

 

17 Board Ex. 3 at 61.

18 Board Ex. 3 at 62.

before reaching that conclusion, Ms. Harris had a surgeon who testified that one
~did not and that was the surgeon the Board chose to believe.

Thus, in response to the Employer’s request to the Board that it reconsider
its initial decision in light of its evidence that Ms. Harris was removed from the
rolls at ATI because she stopped coming, the Board’s decided that “presentation of
additional physical therapy records would not alter the decision or the Board’s
view on Ms. Harris’ credibility.”19 If Harris had testified she was faithful to a
physical therapy regimen and her testimony was credited by the Board, Employer
would have a far more compelling argument. Given the concession, by both Ms.
Harris and the Board, that she was noncompliant with physical therapy and the
credible expert opinion that it would not have mattered anyway, the Court has little
difficulty concluding that the Board acted well within its authority in so concluding
and will not reverse its decision on this basis.

The second claim raised by the Employer here is that Dr. Morgan was
improperly allowed to testify to an MRI result that Morgan identified as having
been taken “post-surgical” even as he incorrectly identified the date of the surgery
as February, 2014 (the surgery actually took place in February, 2015). The

Employer’s complaint is really two-fold: first that the MRI was not produced in

 

19 Board Ex. ll at 2.

discovery and second that Morgan incorrectly identified the date of the surgery and
thus, may have incorrectly identified the date of the MRI.
Morgan testified by way of deposition. The deposition was taken at his

medical office in June of 2016. With regard to the MRI, Dr. Morgan testified to

the following:

Witness: The MRI confirmed the degeneration of the disc material
in the AC joint, and confirmed the presence of
subacromial subdeltoid adhesions, which are tethering
her rotator cuff like the check rein on a horse. lt
wouldn’t let it move right.

Mr. Hunt: Doctor, I’m sorry, let me interject for a second. What
was the date of that MRI?

Witness: Let’s see. It’s a postsurgical MRI, so it’s sometime after
2-23-14. I don’t have the date of it because I don’t have

a copy of it now.

Mr. Hunt: Okay. I’m just going to object for the record that that
MRl report was not produced.

Witness: l don’t care about the report. The report_in my
experience as a shoulder surgeon, seeing about a
thousand shoulders a year, the report -the MRI reports
are wrong over 50 percent of the time. . . So I don’t have
a copy of the report in my chart, nor do l care. But she
brought the disc and l looked at it.20

Like its claim about Ms. Harris’ credibility, Employer would have more to
argue about if Dr. Morgan testified that the MRI was a valuable tool in his

assessment of the need for additional surgery. Would it have been neater if the

 

20 Board Ex. 5 at 9.

date of the MRl had been cleared up on the record? Yes. lt would. But the Court
is not willing to send this case back to the Board because a doctor got the date of
the surgery right but booted the year by one. lndeed, “it’s post surgical, so it’s
sometime after 2-23-14” is not even a reference to the MRl itself`, which the doctor
obviously did not have in front of him, but rather to his own recollection of when
the surgery occurred, uttered in connection with a sentence about consulting the
MRI. Because it was not exploited in cross examination, it is quite likely that in
context, neither side thought much of it until seeing the transcript a good while
later.

ls there any evidence that the MRl was not, in fact, postsurgical? No, there
is not. Moreover, there is no evidence that Morgan relied on the MRl; in fact he
specifically repudiated reliance on the MRl. Had he relied on it, Employer would
have a colorable case to make about its importance in this dispute.

Once again, the Court believes the Employer has gotten lost in its argument.
A bare evidentiary question was raised, but the issue before the Board was whether
the second surgery was “necessary and proper,” not whether the MRl was reliable.
The Board heard from an expert with 35 years of experience, who does “75 to 80
percent” of his surgeries on shoulders and performs approximately 700 shoulder

surgeries each year.21 The Board credited the expert’s opinion, which was

 

211¢1. at19.
10

grounded in a depth of experience and his physical exam of the patient. The
Employer was never going to win the day by resort to an MRl whose reliability the
credible expert repudiated The Court can thus see why the Board ruled that any
error in the recitation of the date of the surgery or his review of the MRl film was
“immaterial” to its decision.

The Board ruled as it did because it was satisfied that Ms. Harris’ request for
a second surgery was reasonable and necessary. lt did so by crediting Ms. Harris’
medical expert and not crediting Employer’s medical expert. Satisfied as we are
that the Board acted properly and substantial evidence supports its decision, the
ruling by the Board will be affirmed.

IT IS SO ORDERED.

 

‘Judge Charles E.¢E§utler

ll

