       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE/DART,                     )
                                            )
              Employer-Appellant,           )
                                            )
      v.                                    )         C.A. No.: N18A-04-004 ALR
                                            )
LYNETTE REID,                               )
                                            )
              Claimant-Appellee.            )

                            Submitted: October 30, 2018
                             Decided: January 9, 2019

                  On Appeal from the Industrial Accident Board
                                 AFFIRMED

                                       ORDER

      This is an appeal from the Industrial Accident Board (“IAB”).               Upon

consideration of the facts, arguments, and legal authorities set forth by the parties;

statutory and decisional law; and the entire record in this case, the Court hereby finds

as follows:

      1.      Claimant-Appellee, Lynette Reid (“Claimant”) sustained an injury to

her right shoulder on August 10, 2017, while working as a bus cleaner for Appellant-

Employer, the State of Delaware/DART (“Employer”). Claimant sustained the

injury when she lifted a trash bag out of a garbage bin.

      2.      Following the incident, Claimant was taken to Wilmington Hospital for

tests and X-rays. Claimant was instructed to follow up with an orthopedist.
      3.     On August 11, 2017, Claimant sought treatment with Michael

Pushkarewicz, M.D. (“Dr. Pushkarewicz”), an orthopedic surgeon.                    Dr.

Pushkarewicz placed Claimant on total disability pending a diagnosis for Claimant’s

injury. An MRI on August 24, 2017 revealed tearing in the labrum and tendon of

Claimant’s right shoulder. The treatment recommended by Dr. Pushkarewicz was

cortisone injections and physical therapy.

      4.     Claimant received an injection in her right shoulder on September 7,

2017. Dr. Pushkarewicz released Claimant to light duty work that same day.

      5.     After leaving from her appointment with Dr. Pushkarewicz on

September 7, 2017, Claimant was involved in a motor vehicle accident. As a result

of the accident, Claimant experienced body aches, back aches, and an aggravation

of her right shoulder injury. Dr. Pushkarewicz’s treatment recommendations for

Claimant’s work-related injury did not change after the accident. Due to the motor

vehicle accident, Claimant did not return to work until November 25, 2017.

      6.     Claimant received a second cortisone injection on January 8, 2018.

      7.     On September 28, 2017, Claimant filed a Petition to Determine

Compensation Due (“Petition”) with the IAB, seeking acknowledgement of the

accident and injury, medical expenses, and a closed period of total disability benefits

from August 11, 2017 through September 7, 2017.




                                          2
      8.    Employer disputes that an accident or injury occurred at the workplace

on August 10, 2017.

      9.    A hearing was held on Claimant’s Petition on February 1, 2018

(“Hearing”). During the Hearing, the IAB considered the testimony of (1) Claimant;

(2) Claimant’s expert, Dr. Pushkarewicz; and (3) Employer’s expert, Gregory

Tadduni, M.D. (“Dr. Tadduni”), an orthopedic surgeon who evaluated Claimant on

December 7, 2017 at Employer’s request.          The IAB also considered video

surveillance footage from Employer’s facility taken on August 10, 2017.

      10.   Claimant’s expert, Dr. Pushkarewicz, opined that Claimant sustained

an injury as a result of the August 10, 2017 work incident. Claimant reported to Dr.

Pushkarewicz that she was in immediate pain and Dr. Pushkarewicz considers this

to be strong evidence of an injury. Dr. Pushkarewicz testified that the tears shown

on Claimant’s August 24, 2017 MRI are normally degenerative, caused by “falling

on your outstretched arm,” or by “trying to lift something which is too heavy.”

Although Claimant’s prior medical records revealed a history of neck pain across

Claimant’s shoulder blades, in Dr. Pushkarewicz’s opinion, these references are

symptoms emanating from a cervical spine condition. Claimant had never been

diagnosed with a shoulder joint condition before August 10, 2017. Dr. Pushkarewicz

opined that, but for the incident on August 10, 2017, Claimant would not have




                                         3
sustained tearing in her right shoulder, would not have required two injections, and

would not have been placed on total disability.

      11.    After reviewing medical records and evaluating Claimant on December

7, 2017, Dr. Tadduni found that Claimant had a significant history of cervical and

lumbar spine symptoms as a result of motor vehicle and previous work-related

accidents. Dr. Tadduni noted shoulder complaints in medical records pre-dating the

August 10, 2017 work accident. Dr. Tadduni agrees with Dr. Pushkarewicz that

Claimant’s August 24, 2017 MRI reveals two tears in Claimant’s right shoulder.

Claimant did not report feeling immediate pain to Dr. Tadduni. Dr. Tadduni testified

that, in his opinion, Claimant would not have been totally disabled between the date

of the alleged work incident through the date of Claimant’s motor vehicle accident

on September 7, 2017. Finally, Dr. Tadduni opined that the conservative medical

treatment has been reasonable, necessary, and related to the injury.

      12.    By Order dated March 29, 2018, the IAB granted Claimant’s Petition

(“IAB Decision”), concluding that Claimant sustained a compensable injury in the

August 10, 2017 work accident, and therefore is entitled to payment of medical

expenses and total disability benefits.

      13.    Employer appeals from the IAB Decision, seeking reversal on the basis

that the IAB committed two errors.        First, Employer contends that the IAB

mischaracterized the opinion of Dr. Tadduni when it found that Dr. Tadduni agreed


                                          4
that Claimant injured her right shoulder in a work-related accident on August 10,

2017. Second, Employer contends that the IAB improperly reconciled Claimant’s

inconsistent statements made to treating medical providers regarding whether

Claimant felt immediate pain following the alleged injury. Employer argues that the

IAB Decision finding that Claimant sustained a right shoulder injury on August 10,

2017, was an abuse of discretion and not supported by substantial evidence.

      14.    Claimant opposes Employer’s appeal, arguing that substantial evidence

supports the IAB Decision.

      15.    On appeal from an IAB decision, this Court’s role is limited to

determining whether the IAB’s conclusions are supported by substantial evidence

and free from legal error.1 Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”2 This Court

reviews the IAB’s legal determinations de novo.3 “Absent errors of law, however,

the standard of appellate review of the IAB’s decision is abuse of discretion.”4




1
  Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007); Johnson v. Chrysler
Corp., 213 A.2d 64, 66 (Del. 1965).
2
  Roos Foods v. Guardado, 2016 WL 6958703, at *3 (Del. Nov. 29, 2016); Olney v.
Cooch, 42 A.2d 610, 614 (Del. 1981).
3
  Guardado, 2016 WL 6958703, at *3; Munyan v. Daimler Chrysler Corp., 909 A.2d
133, 136 (Del. 2006).
4
  Glanden, 918 A.2d at 1101 (citing Digiacomo v. Bd. of Pub. Educ., 507 A.2d 542,
546 (Del. 1986)).

                                          5
      16.    It is well-established that the IAB may reconcile competing medical

testimony by crediting the opinion of one expert over another.5 Where the IAB elects

to adopt one expert opinion over another, the adopted opinion constitutes substantial

evidence for the purpose of appellate review.6 This Court “does not sit as a trier of

fact with authority to weigh the evidence, determine questions of credibility, and

make its own factual findings and conclusions.”7 “[T]he sole function of the

Superior Court, as is the function of [the Delaware Supreme Court] on appeal, is to

determine whether or not there was substantial evidence to support the finding of the

Board, and, if it finds such in the record, to affirm the findings of the Board.”8

      17.    The IAB found substantial evidence to support: (1) Claimant sustained

a compensable right shoulder injury in a work-related accident on August 10, 2017;

(2) the medical treatment for Claimant’s right shoulder was reasonable, necessary,

and causally related to the injury; and (3) it was reasonable for Dr. Pushkarewicz to

place Claimant on total disability from August 11, 2017 through September 7, 2017

while Claimant underwent testing to diagnose her shoulder injury and received a

cortisone injection. A review of the record reveals that both Dr. Pushkarewicz and


5
  Whitney v. Bearing Const., Inc., 2014 WL 2526484, at *2 (Del. May 30, 2014);
Steppi v. Conti Elec., Inc., 2010 WL 718012, at *3 (Del. Mar. 2, 2010).
6
  Munyan, 909 A.2d at 136; Bacon v. City of Wilmington, 2014 WL 1268649, at *2
(Del. Super. Jan. 31, 2014).
7
  Christiana Care Health Servs. v. Davis, 127 A.2d 391, 394 (Del. 2015); Johnson,
213 A.2d at 66.
8
  Johnson, 213 A.2d at 66.

                                           6
Dr. Tadduni were in agreement as to the IAB’s first two findings. As to the third,

by accepting Dr. Pushkarewicz’s opinion that it was reasonable to place Claimant

on total disability, the IAB made a permissible credibility determination in order to

reconcile competing medical theories.9 It is not the duty of this Court to weigh the

evidence or make credibility determinations in the context of an administrative

appeal.10   Rather, “[t]he function of reconciling inconsistent testimony or

determining credibility is exclusively reserved for the [IAB].”11

      18.    This Court is satisfied that there is sufficient record evidence to support

the IAB’s factual conclusions and that the IAB Decision is free from legal error.

      NOW, THEREFORE, this 9th day of January, 2019, the March 29, 2018

Industrial Accident Board Decision granting Claimant’s Petition to Determine

Compensation Due is hereby AFFIRMED.

      IT IS SO ORDERED.

                                                                                                                                  Andrea L. Rocanelli
                                               ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____




                                               The Honorable Andrea L. Rocanelli




9
  See Whitney, 2014 WL 2526484, at *2; Steppi, 2010 WL 718012, at *3.
10
   Davis, 127 A.2d at 394; Johnson, 213 A.2d at 66.
11
   Simmons v. Delaware State Hosp., 660 A.2d 384, 388 (Del. 1995) (citing Breeding
v. Contractors—One—Inc., 549 A.2d 1102, 1106 (Del. 1988)); Martin v. State, 2015
WL 1548877, at *3 (Del. Super. Mar. 27, 2015).

                                           7
