Submitted: January 24, 2019
Appeal from the Industrial Accident Board. AFFIRMED.
Heather A. Long, Esquire, Kimmel, Carter, Roman, Peltz &
O'Neill P.A., Newark, Delaware, Attorney for Appellant
V. Gin, Esquire, Esquire, Elzufon Austin & Mondell, P.A.,
Wilmington, Delaware, Attorney for Appellee Jamestown
RICHARD R. COOCH, R.J.
Ezequiel Gutierrez' ("Employee" or
"Appellant") appeal from an October 3, 2018,
decision of the Industrial Accident Board ("Board")
denying Employee's Petition to Determine Additional
Compensation Due. Employee had sought additional compensation
for a right shoulder injury and a cervical spine injury
allegedly related to a work accident in which Employee's
right hand was crushed by a large steel elevator door.
Employee argues that the Board's decision to deny his
Petition is not supported by substantial evidence, and could
not have been fairly and reasonably reached in light of the
evidence Employee presented. Further, Employee contends that
the Board abused its discretion because the Board did not
accord Employee's treating physicians substantial weight.
Painting ("Employer" or
"Appellee") argues that the Board's decision is
supported by substantial evidence, that the Board did not
abuse its discretion when it found Employer's expert more
persuasive than Employee's experts, and that the Board
did not otherwise err as a matter of law.
review of the parties' contentions and the record, the
Court concludes that the Board's decision was supported
by substantial evidence and that the Board otherwise
committed no error of law. Accordingly, the decision of the
Board is affirmed.
FACTS AND PROCEDURAL HISTORY
December 2, 2016, Employee was working for Employer when
Employee suffered a crush injury to his right hand and
wrist. Employee was standing in an elevator door
frame helping a coworker install a large, oversized steel
elevator control door, when the coworker dropped the steel
door. The door fell towards Employee. In quick succession,
Employee flung his arms out to avoid being completely crushed
and caught the steel door falling towards him, but the steel
door forced his right arm in between the door and the
doorframe, crushing his wrist and hand. After Employee was
dislodged from the doorframe, Employee's supervisor
advised Employee to apply ice to the injury. Experiencing
continued pain, Employee requested medical attention. On
December 30, 2016, Employee presented to Work Pro for medical
initial Work Pro appointments, Employee complained of pain in
his right hand and wrist, and indicated upper extremity
numbness. At a subsequent visit, Employee reasserted his
previous complaints, and added a complaint of weakness in his
right upper extremity. On February 4, 2017, Work Pro
transferred Employee to the care of Dr. Peter Townsend. An
injection into Employee's right wrist failed to alleviate
the pain. Dr. Townsend then performed a wrist fusion surgery
on May 4, 2017, "wherein Dr. Townsend removed a bone
from the wrist and fused it. Dr. Townsend also moved one of
[Employee's] thumb tendons and performed a cleanup around
one of the nerves in the wrist."
days following the wrist surgery, Employee was rushed to the
emergency room twice because of "uncontrollable... 10
out of 10" pain. At this time, six months post-accident,
Employee complained of a sharp, burning, electrical shoulder
pain that extended to his fingers; of a separate shoulder
pain with spasms in his right bicep; and of neck pain that
radiated down into the shoulder. Over the next few days
Employee received treatment at Christiana Care where he
eventually underwent a right axillary nerve block to stymie
the neck and shoulder pain. After discharge from Christiana
Hospital, Employee continued treatment with Dr. Townsend from
May 26, 2017 until August 8, 2017. Employee continued to
complain of pain and stiffness in his neck and right
shoulder. At some point thereafter,  Employee formally indicated
to Employer that he would seek additional compensation for
the cervical spine and right shoulder pain, alleging that the
pain was related to the work accident.
December 28, 2017, Employer filed a Petition to Terminate
Benefits, alleging Employee was no longer totally disabled
from the work accident. In connection with this petition,
Employer tasked Dr. Eric Schwartz, an orthopedic surgeon, to
examine Employee and to review Employee's prior medical
records. Dr. Schwartz' review of Employee's prior
medical records revealed that Employee has been treated
"for approximately 15 years for pain management of the
neck and back." However, when Employee spoke with Dr.
Schwartz, Employee denied prior treatment to his neck or
right shoulder, contrary to his medical
records. From his evaluation Dr. Schwartz opined
that the specific mechanism of the injury, a crush injury to
the right wrist, could not cause the pain in Employee's
right shoulder and cervical spine. According to Dr. Schwartz,
there was no evidence of a fall or twist, no complaints of
neck or shoulder pain at the initial medical examinations
after the injury, and the initial medical examinations noted
"normal sensation to light touch and normal"
reflexes of the upper extremities.
January 2018, Employee began treatment with Dr. Joseph Mesa,
an orthopedic surgeon, and Dr. Mark Eskander, an orthopedic
surgeon. Employee underwent an MRI of his right shoulder for
further diagnosis. According to Dr. Mesa, the MRI showed a
superior labral tear in the right shoulder with a small cyst.
Dr. Mesa opined that the tear was related to the work injury.
Dr. Eskander's separate examination and treatment of
Employee led Dr. Eskander to opine that Employee suffered
from cervical disc herniation with spinal cord compression
and nerve root compression, caused by the work accident. Dr.
Eskander was of the opinion that the wrist injury was severe
enough to be a "distracting injury" from the
shoulder and cervical spine injuries. Dr. Schwartz disagreed
with Drs. Mesa and Eskander that the wrist injury would be a
distracting injury, and opined that if the work accident
caused a neck or shoulder injury Employee would have
indicated pain immediately. Therefore, Dr. Schwartz opined,
it was not possible to relate Employee's neck and
shoulder pain to the work accident.
March 15, 2018, Drs. Mesa and Eskander released Employee to
work full-time in a sedentary capacity. On July 9, 2018, the
Board heard testimony from Employee, Dr. Mesa, Dr. Eskander,
Dr. Schwartz, and various witnesses regarding Employee's
skills and future employability. The Board ultimately found
Employee lacked credibility, especially in regards to his
prior pain medication use. The Board further found Dr.
Schwartz more persuasive than Employee's treating
physicians, primarily because the Board found that Dr.
Schwartz reviewed Employee's prior medical records in a
more comprehensive manner than had the other doctors.
Board by decision dated October 4, 2018 denied Employee's
Petition for Additional Compensation and granted
Employer's Petition for Termination of Benefits. Based on
the persuasiveness of the experts' opinions and the
extent of medical records reviewed, the Board found that
Employee failed to establish that his neck and shoulder
injuries were related to the work accident. Further, the
Board found that Employee's wrist injury no longer
warranted total disability benefits of "$689.45 per
week." The Board terminated Employee's total
disability status. The Board placed Employee on partial
disability status, based on the then existing disabling
effect of Employee's wrist injury, with compensation at
the rate of "$466.55 per week." Employee was
also awarded payment of his medical witness fees in
accordance with 19 Del. C 2322(e). This appeal
THE PARTIES' CONTENTIONS
Employee contends that the Board abused its discretion by
concluding that Employee's right shoulder and cervical
spine injuries were unrelated to the work injury. Employee
argues that the Board improperly ignored the testimony of Dr.
Eskander and Dr. Mesa, and relied exclusively on Dr.
Schwartz' opinions. Employee argues that the Board
"exceeded the bounds of reason" and acted
contrary to Delaware law because it did not accord
Employee's treating physicians with "substantial
Employee argues that the Board's decision finding his
cervical spine and right shoulder injuries were unrelated to
the work accident is not supported by substantial evidence.
Employee contends that the Board "relied exclusively on
the testimony of Dr. Schwartz" while essentially
ignoring the testimony of Dr. Eskander and Dr.
Mesa. Employee argues that there is an
"exceeding amount of evidence" to support a finding
that the neck and shoulder injuries were related to the work
accident. Essentially, Employee contends that the
total weight of all the evidence presented to the Board
weighed in favor of his petition, and thus the Board's
contrary decision cannot be supported by substantial
argues that the Board was permitted to reject the testimony
of Employee, Dr. Mesa, and Dr. Eskander on the basis of
credibility. Employer contends that the Board, in its
discretion as trier of fact, gave more weight to certain
evidence presented by Employer than the Board gave to
evidence presented by Employee. As such, the issue is wholly
factual in nature. Employer argues that Dr. Schwartz'
credible testimony is substantial evidence which supports the