IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

Employer-Appellee.

SARAH DAVIS, )
) C.A. No. Nl7A-11-005 RRC

Employee-Appellant, )

)

v. )

)

HEALTHSOUTH, )

)

)

)

)

Submitted: March 13 , 2018
Decided: June 6, 2018

On Appeal From a Decision of the Industrial Accident Board.
AFFIRMED.

MEMORANDUM OPINION

Heather A. Long, Esquire, Kimmel, Carter, Roman, Peltz & O’Neill P.A., Newark,
Delaware, Attorney for Appellant Sarah Davis.

Morgan A. Sack, Esquire, Cipriani & Werner, P.C., Wilmington, Delaware,
Attorney for Appellee HealthSouth.

COOCH, R.J.

I. INTRODUCTION

This is an appeal from the October 23, 2017 decision of the Industrial
Accident Board (the “Board”) to deny Sarah Davis’ (the “Appellant”) claim for
permanent impairment. Appellant asserts that the Board erred by erroneously relying
on the testimony of her employer’s, HealthSouthl (the “Appellee”), expert over
Appellant’s expert. Appellee argues that the decision should be upheld because
substantial evidence supports the decision.

This Court concludes that the Board’s decision was supported by substantial
evidence and that the Board otherwise committed no error of law. Accordingly, this
Court AFFIRMS the decision of the Board.

II. FACTS AND PROCEDURAL HISTORY

On August 27, 2015, Appellant injured her back in an accident while in the
course and scope of her employment with Appellee. The Appellant suffered an
injury to her lumbar spine while working as a certified nursing assistant for Appellee.
While transferring a paraplegic patient from a rehabilitation chair to his bed, the
patient began to fall. In the midst of his fall, Appellant caught him and injured her
back in the process. As a result, the Appellant went to Christiana Care Emergency
Room for treatment. After being released from Christiana Care Emergency Room
and subsequent medical centers, Appellee placed Appellant on work restrictions
Appellant later received a full duty release in order to return to work.

On April 17, 2017, Appellant filed a Petition seeking benefits for sixteen
percent (16%) impairment to the lumbar spine and outstanding medical expenses.
After Appellant received a full duty release in order to return to work, she sought
further treatment from another physician, Dr. James Zaslavsky, when she still felt
pain in her legs and buttocks. In assessing Appellant’s permanency, Dr. Zaslavsky
rated Claimant’s permanent impairment to the lumbar spine using the Sth Edition
AMA Guides to the Evaluation of Permanent Impairs. Dr. Zaslavsky believed that
Appellant belonged in Diagnosis Related Estimate (hereinaf`ter “DRE”) Category III
because of his observation of radiculopathy. Dr. Zaslavsky further elaborated that
this rating assigns the Appellant a sixteen percent (16%) whole person impairment
for the regional impairment for the lumbar spine.

 

' The exact name of this entity is unclear from the record.

At Appellee’s request, Appellant was examined by Dr. Robert Smith (“Dr.
Smit ”) for a Defense Medical Examination. Dr. Smith’s evaluation of Appellant
differed from that of Dr. Zaslavsky. Dr. Smith believed, relying on the lack of
electro-diagnostic testing, that Appellant showed no significant signs of
radiculopathy. Based on Appellant’s benign exam in February 2016 and Appellant’s
reported score of ninety-five percent (95%) at the end of 201 5, Dr. Smith opined that
Appellant had Zero percent (0%) permanent impairment and required no further
treatment.

The Board found Dr. Smith’s opinion “more credible and reliable than Dr.
Zaslavsky’s opinion.”2 On October 23, 2017, the Board denied the permanent
impairment claim on grounds that Appellant failed to meet her burden of proof to
“prove that she sustained a permanent impairment to the lumbar spine as a result of
the August 27, 2015 accident.” 3 The Board found that “some of Appellant’s
treatment and outstanding medical expenses were reasonable, necessary, and
causally related to the work injury.” 4 The Board awarded Appellant medical
expenses predating February 2016 in accordance with the fee schedule set forth in

19 Del. C. § 2322B.5

Appellant now appeals the Board’s decision “as it relates to [her] Permanent
Impairment claim”6 and outstanding medical expenses “incurred after Dr. Smith’s
Defense Medical Examination.”7

III. THE PARTIES’ CONTENTIONS
A. Appellant’s Contentz'ons

Appellant’s argument is that “the Board erred when it accepted the Appellee’s
expert conclusion that the [Appellant] has 0% permanent impairment to the lumbar
spine, when that same expert agreed that [Appellant] has a disc bulge with an annular
tear, which has been accepted by the employer as related to her work injury.” 8

 

2 Appellant’s Op. Br., Ex. A at 16.
3 Ia'.

4 Id. at l8.

5 Id.

6 Appellant’s Op. Br. at 3.

7 la'. 3124.

8 Id. at l4.

Appellant argues that Dr. Zaslavsky based his opinions on his examination of
Appellant, his review of Appellant’s medical records before and after the accident,
defense medical exam reports, and the MRI scan that presented both a bulging disc
with an annular tear and a high intensity zone lesion. 9 Appellant argues that the
diagnosis made by Dr. Zaslavsky is consistent with the results of the MRI. 10

Appellant argues that Dr. Zaslavsky rated Appellant’s permanent impairment
to the lumbar spine using the AMA Guides to the Evaluation of Permanent
Impairments.11 With his observation of radiculopathy, Dr. Zaslavsky placed
Appellant in a different category than Dr. Smith. Additionally, Appellant argues that
“Dr. Smith’s evaluation lasted less than 10 minutes, and his testimony was offered
based not on medical records reviewed, but rather a medical records summary that
left out many important details[.]”12 Based on these alleged “errors of law and
defects in the decision[,]”Appellant requests that this Court “revers[e] the Board’s
decision and a remand for an award of permanent impairment benefits and medical
expenses associated with [Appellant’s] treatment with First State Orthopedics, Spine
Care Delaware and Premiere Physical Therapy, which were incurred after Dr.
Smith’s Defense Medical Examination.”13

B. Appellee ’s Contentions

Appellee argues that the Board’s decision should be affirmed.14 Appellee’s
contends that “the Board properly denied the claim for permanent impairment
because substantial evidence supported that Dr. Smith’s opinions were more credible
and reliable than those of Dr. Zaslavsky and [Appellant’s] testimony regarding her
symptoms and limitations lacked credibility[.]”15 Additionally, Appellee argues that
“[t]he Board properly found that [Appellant] failed to satisfy her burden to show that
expenses incurred after February 2016 were reasonable, necessary and related to the
work injury.”16

Appellee stresses that the Board found Dr. Zaslavsky’s testimony “less
credible and less reliable” than Dr. Smith’s testimony because “[1] Dr. Zaslavsky

 

9 Id.

10 Id. at 15.

11 AMA Guides to the Evaluation of Perm. Impairments 5111 Edition, Table 5-13 at 384.
12 Appellant’s Op. Br. at 19.

13 Ia’. at 24.

14 Appellee’s Answ. Br. at 2.

15 Id. at 15.

16 Ia'. at 25.

failed to follow the AMA Guides; [2] he based his opinion on past treatment and
office visits rather than [Appellant’s] condition as assessed at MMI; [3] he relied on
an MRI scan that did not correlate with [Appellant’s] subjective complaints; and [4]
he relied on [Appellant’s] unverified radicular complaints.”17

Appellee also argues that the Board believed Appellant’s testimony lacked
credibility due to inconsistent record evidence. Specifically, the Board believed that
Appellant had failed to prove permanent impairment to her lumbar spine due to her
conversation with a physical therapist that she had been pain free for one week and
the Appellant’s failure to return to therapy after leaving her job in January 2016. 18

IV. STANDARD OF REVIEW

In reviewing a decision of the Board, “[t]he function [of this] Court is limited
to determining whether substantial evidence supports the Board’s decision regarding
findings of fact and conclusions of law and is free from legal error.” 19 Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.20 If the Board’s decision is supported by substantial evidence,
this Court must sustain the Board’s decision even if this Court would have decided
the case differently if it had come before it in the first instance.21 This Court does not
sit as trier of fact, nor should this Court replace its judgment for that of the Board. 22
“The Court, when factual determinations are at issue, shall take due account of the
experience and specialized competence of the agency and of the purposes of the
basic law under which the agency has acted.”23 “The burden of persuasion is on the
party seeking to overturn a decision of the Board to show that the decision was
arbitrary and unreasonable.”24 In this process, “the Court will consider the record in
the light most favorable to the prevailing party below.” 25

 

17 Id. at 19; See Appellant’s Op. Br., Ex. A at 16-17.

18 Appellee’s Answ. Br. at 19; See Appellant’s Op. Br., Ex. A at 17.

19 Holowka v. New Castle Cly. Ba'. OfAdjustment, 2003 WL 21001026, at *3 (Del. Super. Ct. Apr.
15, 2003) (citing 29 Del. C. § 10142).

20 Forrey v. Sussex Cty. Ba’. oan'justment, 2017 WL 2480754, at *3 (Del. Super. Ct. June 7, 2017).
21 Id

22 Holowka, 2003 WL 21001026, at *4.

23 29 Del. C. § 10142(d).

24Forrey, 2017 WL 2480754, at *3 (quoting Mellow v. Bd. of Aa’justment of New Castle Cty., 565
A.2d 947, 955 (Del. Super. Ct. 1988)).

25 Holowka, 2003 WL 21001026, at *4 (quoting Gen. Motors Corp. v. Guy, 1991 WL 190491, at
*3 (Del. Super. Ct. Aug. 16, 1991)) (internal brackets omitted).

V. DISCUSSION

The Board’s decision is supported by substantial evidence because the Board
took into account the testimony provided by both doctors, in addition to Appellant’s
testimony, and based their decision on such evidence. Even if this Court may have
decided the case differently in the first instance, deference is owed to the Board is
required unless the decision lacks substantial evidence that supports the Board’s
decision regarding findings of fact and conclusions of law or contains a legal error.26

Appellant’s primary contention is that the Board erred in choosing Appellee’s
expert over Appellant’s expert. In its order, the Board stated that it “accept[ed] Dr.
Smith’s opinion as more credible and reliable than Dr. Zaslavsky’s opinion in this
case.”27 The Board believed that “[m]uch of what Dr. Zaslavsky relie[d] on [was]
[Appellant’s] subjective presentation Which is incongruous because the medical
records prior to [Dr. Zaslavsky’s] treatment suggest that she had significantly
improved and returned to work full duty.”28 The Board is free to choose between
conflicting medical opinions.29

Absent a specific showing of legal error, this Court deems the issue at hand to
be factual in nature. As such, this Court is required to give deference to the
specialized competency of the Board. The Board considered both experts and the
evidence they provided. The Board, well within its discretion, chose one expert over
another. This decision was not arbitrary or unreasonable, but rather was founded on
the basis of the evidence presented. There was sufficient evidence to support the
Board’s finding that Dr. Smith’s opinions were credible and reliable.

VI. CONCLUSION

The Court finds that the decision by the Board is supported by substantial
evidence and is free from legal error,

Accordingly, the decision of the Board is AFFIRMED.

 

29 HOlOchZ, 2003 WL 2l00l026, at *3 (Cifil'lg 29 Del. C. § lOl42).
27 Appellant’s Op. Br., Ex. A at 16.

28 Id. at 17.
29 DiSabatino Brothers, lnc. v. Wortman, Del. Supr., 453 A.2d 102, 106 (1982) (finding that when
faced with conflicting evidence, the Board was free to choose between conflicting medical

opinions).

"l»\,OM§L\/(mé\

Richard R. Cooch, J.

cc: Prothonotary
Industrial Accident Board

