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Estate of Mitchell v. Allen

Superior Court of Delaware

November 28, 2012

The Estate of Herbert Mitchell

Submitted: October 17, 2012

Appeal of a Decision of the Industrial Accident Board.

Gary S. Nitsche, Esquire, Michael B. Galbraith, Esquire

Anthony M. Frabizzio, Esquire John J. Ellis, Esquire Heckler & Frabizzio

Dear Counsel:

This is my decision denying the appeal of a petition filed by the Estate of Herbert Mitchell ("Estate") for permanency benefits. The death of Herbert Mitchell ("Mr. Mitchell" or "Decedent") occurred June 4, 2008 as the result of a compensable work accident. The Estate, consisting of Mr. Mitchell's three daughters after his wife died, receives statutory death benefits. The Board denied the petition for permanency benefits, and the Court affirms.

Facts and posture.

While Mr. Mitchell was working inside an empty grain bin, 20 tons of soybean meal poured over him into the bin, killing Mr. Mitchell within several minutes. An agreement for death benefits pursuant to 19 Del.C. § 2330 was reached by Employer Allen[1] and Decedent's Estate on January 19, 2009. On May 6, 2011 the Estate filed a petition for a 100 percent permanent impairment award for each lung based on the opinion of Stephen J. Rodgers, MD. Employer filed a motion to dismiss the petition, which the Board denied, finding that the issue was a fact question requiring a full hearing.

After having an unnoticed autopsy performed October 10, 2011, the Estate filed a second petition seeking 100 percent permanency awards for the kidneys, brain, heart and digestive systems. Employer motioned to exclude the autopsy results based on the unfair advantage to the Estate.

A hearing was held on Employer's motion to exclude January 4, 2012. The Board found that the prejudice to Employer by lack of notice of the autopsy was not so great as to bar the autopsy results from the hearing. However, the Board ordered that an adverse inference would be applied so that reasonable doubts about the autopsy evidence would be resolved in Employer's favor. Employer filed a motion for reargument.

Hearing on the merits.

On March 14, 2012, the Board convened a hearing on the permanency petitions and the motion for reargument on exclusion of the autopsy results.

Stephen J. Rodgers, MD, testified for the Estate. He was hired to provide a permanency evaluation on the Estate's behalf. He is board certified in disability evaluation and occupational medicine. He generally uses the American Medical Association ("AMA") Guidelines to determine permanency ratings, but the Guidelines do not address cases where the individual dies within minutes of the accident or event. Dr. Rodgers assigned a 100 percent permanency rating to each of Decedent's lungs based on compression of the lungs, which also caused small lacerations on the lungs and lung collapse.

Richard Callery, MD, testified by deposition on behalf of the Estate. He is the State's Chief Medical Examiner, who performed the autopsy acting in his personal capacity. He agreed that the cause of death was suffocation, and stated that Decedent's lungs were irreparably damaged by the accident prior to death and that the lung damage would have caused permanent impairment to the heart, kidneys, brain and digestive system. The lungs were collapsed and a tear was found in each lung consistent with a compression injury. The tears were not consistent with the hole that results from a standard embalming tool called a trocar sword, which drains blood and fluids from the body. Crushed soy meal was present in Decedent's mouth, throat, trachea and bronchi.

Dr. Callery's opinion was that torn, collapsed lungs which are full of grain will never work again, assuming the individual survives the accident. He also stated that without oxygenation, other bodily systems are in turn 100 percent permanently impaired.

Judith Tobin, MD, a forensic pathologist, was acting assistant medical examiner when Mr. Mitchell died. Dr. Tobin examined Decedent's body and completed the death certificate June 5, 2008. She did not perform an autopsy because it was clear that the death was accidental. She found no evidence of crushing of the body by the weight of the grain.

Dr. Tobin testified that Mr. Mitchell died within several minutes of being fully submerged in the grain and that a more specific answer would be speculative. As to the autopsy, she stated that a second medical examiner would be at a disadvantage because of the unnatural state of the organs. Dr. Tobin concluded that the cause of death was asphyxia due to an occlusion of the nose and mouth. That is, the grain blocked the air passage, causing suffocation, and there was no evidence of other injury.

Michael Walkerstein, MD, is board certified in internal medicine, pulmonary medicine and critical care medicine. He testified on Employer's behalf. Dr. Walkerstein agreed that the death was due to suffocation because oxygen could not reach Mr. Mitchell's lungs. Suffocation causes all other bodily organs to fail, and no evidence showed that either the weight of the grain or the presence of grain in the airways caused physical injury to the lungs. In fact, before his head was covered with grain, Mr. Mitchell was speaking to co-workers, showing that he was able to breathe.

The Board's decision.

On April 13, 2012, the Board denied the permanency petition, finding that the Estate failed to show by a preponderance of the evidence that, with or without any adverse inference, Claimant's lungs or other organs were permanently injured apart from failure due to lack of oxygen. The Board found all four expert medical witnesses to be credible and accepted the opinions of Dr. Tobin, the medical examiner who certified Claimant's death, and Dr. Walkerstein, the pulmonologist who testified on Employer's behalf.

Standard of review.

On appeal of a decision of the Board, the Court is bound by the Board's findings if they are supported by substantial evidence and absent abuse of discretion or error of law.[2] Substantial evidence is relevant evident that a reasonable mind might accept as adequate to support a conclusion.[3] The Court does not weigh the evidence, determine questions of credibility, or make factual findings.[4] As the trier of fact, the Board is responsible for resolving conflicts in the testimony[5] and is entitled to accept the testimony of one expert and reject the testimony of another expert.[6]


An employee may claim compensation for certain permanent injuries, pursuant to 19 Del.C. § 2326. The Board may award compensation based on the loss or loss of use of any part of the claimant's body. [7] The claimant bears the burden of proof to show the percentage of permanent impairment.[8]

A decedent's estate which is receiving statutory death benefits may petition for and receive permanency awards pursuant to 19 Del.C. § 2332 and 10 Del.C. § 3707.[9] In Estate of Watts, the Delaware Supreme Court found that when read in light of the purpose of workers' compensation laws, these two statutes permit permanent impairment awards to a claimant's estate.[10] The Watts Court was not presented with the question of the burden of proof on a permanency petition. This Court applies the substantial evidence standard to permanent impairment petitions.[11]

The Estate argues first that the Board found that permanency awards could not be made if an employee dies as a result of a work accident. In fact, the Board correctly stated that such permanency petitions are viable if there is evidence of injury distinct from suffocation, which was without dispute the cause of death. The Estate submits that the Board did not use the correct burden of proof but does not identify an alternative to the preponderance of the evidence standard, which the Board applied.

The Estate also argues that there is substantial evidence to show that the Board erred as a matter of law in finding that the Estate failed to meet its burden of proof. This is an incorrect statement of the standard of review on appeal of an administrative decision. If there is substantial evidence to support the Board's findings, this Court will not disturb those findings on appeal. The Board hears the evidence and is free to accept the opinion of one expert witness over that of another without explanation.[12] This Court does not determine the credibility of experts or other witnesses or make factual findings of its own.

Despite this recognized standard, the Estate argues that Dr. Callery's testimony provided substantial evidence to support a finding in the Estate's favor. This fact, if so it be, is irrelevant. The Board accepted the testimony of Dr. Tobin and Dr. Walkerstein over that of Dr. Rodgers and Dr. Callery. The Board explained its reasoning in full.

The Estate argues that the Board cannot make credibility determinations based on differences presented by deposition testimony as there is no basis to judge the manner and demeanor of the witnesses. Although a credibility determination as to deposition testimony is not given the deference generally ascribed to live testimony because the deponent is not physically present at the hearing and cannot be "sized up" against appearing witnesses, [13] deposition testimony can still be persuasive and carry weight. The Estate's principal expert Dr. Callery testified via deposition. Employer's principal expert, Dr. Walkerstein, testified in like manner. Other experts appeared at the hearing, including Dr. Tobin for Employer and Dr. Rodgers for the Estate. The Board found Drs. Tobin and Walkerstein to be more persuasive and explained its rationale. Dr. Walkerstein is a pulmonologist, and the Board could give weight to his credentials and the live testimony of Dr. Tobin over Dr. Rodgers who testified in person and over the deposition testimony of Dr. Callery.

If the Estate's position were accepted, then the Board will always be constricted to prefer live over deposition testimony. It is central to the Board's function to resolve conflicts in the medical testimony.[14] In this case, the Board performed this function and made clear findings on a wealth of conflicting medical evidence.

Finally, the Estate argues that the Board erroneously ruled that an adverse inference would be applied to any questions about the autopsy results. In its decision, the Board found that with or without an adverse inference, the Estate had not carried its burden of proof. That is, the Board did not use the adverse inference, so questions of its applicability are moot.

The Board's decision is based on substantial evidence and free from legal error. The Board acted well within its discretion in accepting the opinions of Dr. Tobin and Dr. Walkerstein that suffocation that caused the death and that no evidence existed to show permanent impairment distinct from suffocation.


The Board's decision denying the Estate's petition for permanency awards is AFFIRMED, and the Estate's appeal is DENIED.


Very truly yours,


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