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Liner v. Harris

Superior Court of Delaware

May 1, 2017

FOOD LINER, Appellants,

          Submitted: January 30, 2017

         Upon Consideration of Appeal from the Industrial 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.


         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.


         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 preponderance' to support the finding."[3] On appeal, the Superior 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.[4] The Superior Court may not overturn a factual finding of the Board unless there is no satisfactory proof supporting the Board's finding.[5]


         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 of2014[9]and had the surgery in February, 2015.[10] She was referred to physical therapy in April, 2015 by Dr. Crane[11] and accepted 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 home but could not attend sessions at ATI due to a transportation issue. This note was contested by Harris at the hearing[13] 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 ...

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