       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                 IN AND FOR NEW CASTLE COUNTY


RUSSELL VAUGHAN,            )
                            )
             Appellant,     )                         C.A. No. N13A-10-012 RRC
     v.                     )
                            )
FIRESTONE HOTEL GROUP, INC, )
                            )
             Appellee.      )

                                    Submitted: April 21, 2014
                                     Decided: July 18, 2014

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

                                            ORDER

Tara E. Bustard, Esquire, Doroshow, Pasquale, Krawitz & Bhaya,
Wilmington, Delaware, Attorney for Appellant.

Amy M. Taylor, Esquire, Heckler & Frabizzio, Wilmington, Delaware,
Attorney for Appellee

COOCH, R.J.

     This 18th day of July 2014, upon consideration of Appellant’s Appeal
from the Industrial Accident Board (“the Board”), it appears to the Court
that:

        1. Appellant Russell Vaughan (“Appellant”) was employed by
           Firestone Hotel (“Appellee”) and injured his lower back while lifting
           a heavy box at work on February 14, 2012. 1 He sustained a limited



1
    Appellant’s Opening Br. at 4.
          lumbar strain and continued to work despite the injury until he was
          laid off on March 19, 2012.2

     2. Appellant worked for Appellee for thirty-four years prior to his
        termination.3 Appellant experienced back pain prior to the injury but
        described it as the type a person would experience after working on
        his or her feet all day. 4 The pain after sustaining the injury was much
        more severe. Appellant described it as “pain that I could not bear. I
        could not. . . sit, could barely walk.”5

     3. Appellant saw Dr. Arnold Glassman about five or six weeks after the
        injury and had a MRI of his back completed in May. 6 In October,
        Appellant experienced increased pain and Dr. Glassman ordered
        another MRI, which was performed on November 29, 2012. 7 Dr.
        Stephen Rodgers, who testified for Appellant, examined him on
        March 5, 2013.8 Dr. Rodgers reviewed Dr. Glassman’s files and MRI
        results and found that in November Appellant had new left far
        annular tears and disc herniation that was, in his opinion, most likely
        a result of his prior disc pathology and causally related to the
        February 12 injury. 9

     4. Dr. Evan Crain, who testified on behalf of Appellee, examined
        Appellant on two occasions: June 20, 2012 and one year later on
        June 12, 2013. 10 Dr. Crain reviewed Appellant’s medical records and
        found a history of back pain. 11 Dr. Crain testified that at the time of
        the first examination Appellant suffered a lumbar sprain but that he
        had completely recovered from that injury. 12 In his opinion, the May
        MRI showed evidence of a long-standing degenerative condition that
        is consistent with ten years of back pain.13 During the second
        examination, Dr. Crain determined that the November MRI did show

2
  Appellee’s Ans. Br. at 4.
3
  Appellant’s Opening Br. at 4.
4
  Id.
5
  Id.
6
  Ex. A to Appellee’s Opening Br. at 3.
7
  Appellant’s Opening Br. at 4-5.
8
  Id.
9
  Id.
10
   Appellee’s Ans. Br. at 5.
11
   Id. at 6.
12
   Id.
13
   Id.


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          a subsequent new injury, but it was a result of his pre-existing
          condition and confirmed the Appellant fully recovered from his
          February 2012 injury. 14 Dr. Crain also determined that Appellant did
          not have a permanent injury as a result of the February 2012
          incident.15

     5. The Board denied Appellant’s Petition to Determine Additional
        Compensation Due.16 It found Dr. Crain’s opinion more persuasive
        than Dr. Rodgers and that Appellant did not meet the burden of
        showing causation between the work incident and his current lumbar
        spine condition. 17 Ultimately, Dr. Crain convinced the Board that
        Appellant “returned to his baseline” condition before the June 2012
        exam and therefore the ongoing injuries are unrelated to the original
        work accident.18

     6. The Delaware Supreme Court and this Court have repeatedly
        emphasized the limited appellate review of an administrative
        agency’s factual findings. 19 The Court’s role is limited to
        determining whether the Board made an error of law and whether
        substantial evidence supported the Board’s findings. 20 If substantial
        evidence supports the administrative decision, it must be affirmed
        unless there is an abuse of discretion or clear error of law. 21
        “Substantial evidence means such relevant evidence as a reasonable
        mind might accept as adequate to support a conclusion.” 22
        Additionally, when the Board accepts the testimony of one expert
        over that of another, that expert’s opinion constitutes substantial
        evidence for the purpose of an appeal.23 The appellate court does not
        weigh evidence, resolve credibility questions, or make its own
        factual findings.24 Only when there is no satisfactory factual
        evidence to support the Board’s finding will the Superior Court

14
   Id. at 7.
15
   Id.
16
   Ex. A to Appellee’s Ans. Br. at 16.
17
   Id. at 15.
18
   Id. at 15-16.
19
   Elswick v. B.F. Rich Co., 1998 Del. Super. LEXIS 512, at *6 (Del. Super. Oct. 23, 1998).
20
   Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006).
21
   Id.
22
   Oceanport Ind. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994) (internal quotation marks
omitted).
23
   Cottman v. Burris Fence Constr., 2006 Del. Super. LEXIS 299, at *8 (Del. Super. Dec. 19, 2006).
24
   Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).


                                                    3
          overturn the Board’s decision.25 The Court merely determines if the
          evidence is legally adequate to support the Board’s factual findings. 26
          When considering the facts, the Court defers to the Board’s expertise
          and competence.27 The Court is bound by the Board’s decision even
          if it would have reached a contrary conclusion based on the same
          facts. 28 The Court will review the record in the light most favorable
          to the prevailing party below when considering substantial
          evidence.29

     7. Appellant contends that (1) the Board should have implemented the
        “direct and natural consequences” test to determine causation and (2)
        the determination that Appellant’s ongoing injury is not causally
        related to his work injury was not supported by substantial evidence
        in the record.30 Appellee argues that the Court should affirm the
        Board’s decision because (1) Appellant recovered from his original
        work injury; therefore, it used the correct legal standard and (2) the
        Board’s decision was supported by substantial and competent
        evidence.31

     8. The “direct and natural consequences” test was not appropriate for
        the Board to have applied in this case because the Appellant returned
        to his “baseline” status. The “direct and natural consequences” test is
        used to determine whether a subsequent injury is causally related to
        the original compensable injury. In this instance, the Board found
        that Appellant recovered from his original injury. Therefore, the
        continuing back pain could not have been causally related to the
        original injury of February 14. The Board found Dr. Crain’s
        testimony was more persuasive than Dr. Rodgers’ testimony, which
        is in its power of discretion. Dr. Crain, and subsequently the Board,
        concluded that Appellant’s pain resulted from a degenerative
        condition, despite his perfect work record and the absence of medical
        treatment. There is substantial evidence in addition to Dr. Crain’s
        testimony, such as chiropractor medical records and MRI results, to

25
   Noel-Liszkiewicz v. La-Z-Boy, 68 A.3d 188, 191 (Del. 2013).
26
   29 Del. C. § 10142(d).
27
   Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993). See also 29 Del. C. §
10142(d).
28
   Kreshtool v. Delmarva Power & Light Co., 310 A.2d 649, 652 (Del. Super. 1973).
29
   Thomas v. Christiana Excavating Co., 1994 WL 750325, at *4 (Del. Super. Nov. 15, 1994).
30
   Appellant’s Opening Br. at 2-3.
31
   Appellee’s Ans. Br. at 2.


                                                   4
         show that the Appellant suffers from such a condition. It is true that
         Dr. Crain did not use the MRI films; however, he did examine the
         Appellant on two occasions. Therefore, the Board’s decision is
         supported by substantial evidence and this Court will defer to its
         expertise.

      9. This Court finds that the Board used the appropriate analysis and that
         its decision was supported by substantial evidence; further, the Board
         did not commit any legal error. Therefore, the Board’s decision is
         AFFIRMED.

IT IS SO ORDERED.


                                                    ______________________
                                                      Richard R. Cooch, R.J.
cc:     Prothonotary
        Industrial Accident Board




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