Submitted: January 2, 2019
Appeal from the Decision of the Industrial Accident Board.
F. Schmittinger, Esquire and Candace E. Holmes, Esquire of
Schmittinger and Rodriguez, P.A., Dover, Delaware; attorneys
M. Lukashunas, Esquire of Tybout Redfearn & Pell,
Wilmington, Delaware; attorney for Appellee.
William L. Witham. Jr. Resident Judge
the Court is the appeal of Appellant Steven Powell
(hereinafter "Appellant"), from a decision of the
Delaware Industrial Accident Board (hereinafter "the
Board" or "IAB") denying his petition that
sought to determine compensation due. The Appellant's
appeal hinges upon whether the Board erred in its
determination that the Appellant presented insufficient
evidence to demonstrate that his injury occurred during the
course and scope of his employment at a Dover, Delaware
considering the arguments of the parties and the record
before it, the Court finds that the IAB's decision is
supported by substantial evidence and is free of legal error.
As a result, the Board's decision must be
AND PROCEDURAL HISTORY
Appellant was employed by Hardee's as a part-time line
cook for a period of time in 2016.
a visit with his sister on November 4, 2016, the Appellant
fell after misjudging a step on a curb outside and landed on
his right shoulder. The Appellant, who had been absent from
Hardee's for "a couple of days of work,"
visited an emergency room immediately after the fall, not
because of injuries or pain resulting from the fall, but to
obtain a doctor's note to be excused from his previous
work absences. The Appellant was X-rayed, given
ibuprofen, and released without further examination or
diagnosis. He returned to work thereafter, apparently
Appellant fell again on November 12, 2016, while working an
impromptu shift at Hardee's. The Appellant testified that
he reported the injury to his shift manager,
"Katherine" and attempted to finish the shift, but was
sent home. No injury report was completed at the time
of the injury.
Appellant did not attempt to procure documentation excusing
him from work absences after November 12, 2016. However, the
Appellant testified that at some point between November 12,
2016 and December 15, 2016, he sought treatment at Eden Hill
Medical Center as a result of a previous fall. According to
the Appellant, Eden Hill declined to treat him because he did
not have an injury report from Hardee's.
December 15, 2016, approximately forty-two (42) days after
the November 4, 2016 fall and thirty-three (33) days after
the alleged November 12, 2016 fall, the Appellant sought
treatment from Dr. Richard DuShuttle (hereinafter "Dr.
DuShuttle"), a board certified orthopedic
surgeon. At the hearing, Dr. DuShuttle testified
that the Appellant noted that he first started to feel pain
on "11-12-2016."However, notes written by Dr.
DuShuttle documented that the injury occurred on December 11,
2016, only four days before the appointment.
DuShuttle suspected that the Appellant had a torn rotator
cuff in his right shoulder and ordered an MRI that
subsequently confirmed his suspicions. Despite
knowledge of the Appellant's November 4 fall, Dr.
DuShuttle testified that he believed the Appellant's
injury was caused by the fall at Hardee's.
January 25, 2017, over a month later, the Appellant reported
to Dr. DuShuttle that the injury occurred on
February 2017, three to four months after both the November 4
and 12 falls, the Appellant reported the injury to Tony
Branch (hereinafter "Mr. Branch"), the new General
Manager of the Hardee's. The Appellant documented that
the injury occurred on December 11, 2016. However, Mr.
Branch further testified that the Appellant could not
definitively state whether the accident occurred in November
2016 or December 2016. Mr. Branch did speak with Jason Adam
(hereinafter "Adam"), and confirmed that the
Appellant did fall at the Hardee's. Notably,
however, Branch's testimony at the hearing did not
confirm that the Appellant was an employee on November 12,
DuShuttle performed the first surgery on the Appellant's
right shoulder on March 7, 2017.
26, 2017, the Appellant was examined by Dr. Jonathan Kates
(hereinafter "Dr. Kates"), a board certified
orthopaedic surgeon. Dr. Kates testified that the Appellant
stated his injury occurred on December 11, 2016,
and initially denied any past shoulder
injuries. However, after Dr. Kates'
examination of the Appellant's medical history, the
Appellant admitted the November 4 fall. Dr. Kates
opined that the November 4 fall could have been
competent to cause a rotator cuff injury,  despite the
emergency room records from November 4 demonstrating the
Appellant was discharged in stable condition and that any
follow up would be "as needed."
October 2017, the Appellant's condition had not improved
and he was diagnosed with "frozen
shoulder." As a result, Dr. DuShuttle performed a
second shoulder surgery in November 2017, that resulted in
the Appellant's improvement.
February 2, 2018, the Appellant filed a petition to determine
compensation due and alleged that his shoulder injury was
causally related to a work incident that occurred on December
Board conducted a hearing in this case on June 5, 2018 and
considered live testimony from the Appellant and Branch, and
deposition testimony from Dr. DuShuttle and Dr. Kates. Most
notably, and for only the second time, the Appellant asserted
that the date of injury was November 12, 2016, rather than
December 11, 2016.
Board released its decision on June 14, 2018 and denied the
Appellant's petition. The Board found that the
Appellant failed to prove that the alleged work injuries were
causally related to his work activities and that there was
insufficient evidence that demonstrated that the
Appellant's injury occurred during his employment at
Hardee's. The Board specifically noted that the
Appellant's inability to definitively identify the date
of injury and failure to timely seek medical treatment hurt
Appellant filed a timely notice of appeal on June 28, 2018
and a written brief on September 21, 2018. The Appellee's
response, in opposition, was received by the Court on October
22, 2018. The Appellant's reply brief was filed on
November 30, 2018.
grounds for the appeal, the Appellant contends that the Board
erred in denying his petition despite sufficient evidence
presented that the Appellant's injuries were a result of
a workplace accident. The Appellant's argument asserts
(1) the injury occurred as a result of a fall at Hardee's
on November 12, 2016; (2) this injury occurred during the
course and scope of his employment and not from a previous
fall outside his sister's home on November 4,
2016; and (3) a causal link between the work
accident and the injury was established and any
confusion regarding the date of injury,  nor failure
to seek immediate medical treatment, should bar the Appellant
from workers compensation recovery.
Appellee, in opposition, contends that the Board's
decision was supported by substantial evidence and free from
any legal error. The Appellee specifically asserts: (1)
the Appellant did not meet the required burden of
proof; (2) Dr. DuShuttle's testimony was
insufficient to establish causation; and (3) the
inconsistencies of the evidence presented supported the
STANDARD OF REVIEW
Court's review of a decision by the IAB is governed under
Section 6009 of Title 7 of the Delaware Code. Pursuant to
section 6009, this Court may affirm, reverse, or modify the
Board's decision,  but, our review is limited to
determining whether the IAB's decision was supported by
substantial evidence and free from legal error. Alleged
errors of law are reviewed de novo, but in the
absence of legal error, the Board's decisions are
reviewed for an abuse of discretion. Abuse of discretion will
be found only when the Board's decision "exceed [ed]
the bounds of reason given the circumstances, or where rules
of law or practice [were] ignored so as to produce
considering the Board's findings of fact, the Court
defers to the Board's expertise and
competence. As such, the Court does not weigh
evidence, determine questions of credibility, or make its own
factual determinations. These functions are reserved
exclusively for the IAB. However, the Court will review the
record "in the light most favorable to the prevailing
party" and determine if the evidence presented
was legally sufficient to support the IAB's factual
IAB's decision is deemed supported by substantial
evidence when it is based upon "such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion." Substantial evidence is "more than
a scintilla, but less than a preponderance of the
evidence. If the Court finds that the IAB's
findings are supported by substantial evidence, then the
IAB's decision must be affirmed.
Board's decision will be affirmed or reversed based on
whether the Court finds that the Appellant did in fact (1)
suffer an injury on November 12, 2016 and (2) that injury
occurred during the course and scope of his employment with
Hardee's and (3) there is an evident causal connection
between the employment and injury. Here, after consideration
of the record and the parties' assertions, the Court
finds that there is substantial evidence that supports the
Board's decision to deny the Appellant's petition.
The November 12, 2016 "Injury"
The Appellant appears to have been employed by Hardee's
on November 12, 2016.
preliminary matter, the employee must be employed by the
employer when that injury occurs before the employee can have
an injury pursuant to the course and scope of
hand, there is substantial evidence to suggest that the
Appellant was an employee in November 2016. First, the
Appellant testified that he initially went to the emergency
room after the November 4 fall to get a medical excuse for
missed days at work. Second, the Appellant's testimony is
clear in that he arrived at Hardee's on November 12, 2016
to "work." Third, the Appellant further testified
that he was consistently told subsequent to the November 12
fall that he was not to come back to work until he was
"better." The Appellant's testimony clearly
suggests that the Appellant was employed during the first two
weeks of November 2016.
Branch's testimony also supports the notion that the
Appellant was on the Hardee's payroll on November 12,
2016. Additionally, Mr. Branch confirmed that
Adam witnessed the Appellant fall at some point in time at
the restaurant. Thus, without evidence to the contrary,
it appears that the Appellant's November 12 fall falls
within the course and scope of his employment at
other hand, substantial evidence also exists that is
contradictory. Mr. Branch testified that the same
Hardee's payroll records that confirmed the
Appellant's employment, also documented the
Appellant's termination from Hardee's on November 4,
2016. Additionally, when directly asked by the
Board if the Appellant was employed by Hardee's on
November 12, Mr. Branch never confirmed his employment
definitively, and appeared to avoid answering the question,
opting instead to state only that the Appellant had fallen at
the Court notes that the Appellee has never directly argued
on appeal, that the Appellant was not employed by
Hardee's on November 12, 2016. In light of that, and even
when examining the record in a light most favorable to the
Appellee, the Court finds that substantial evidence exists
that demonstrates the Appellant was employed by Hardee's
on November 12, 2016.
Appellant Failed to Establish a Causal Connection
Appellant next argues that he sustained an injury on November
12, 2016, as a result of a fall during the course and scope
of his employment at Hardee's. In its decision, the IAB
found that the Appellant failed to prove that the alleged
work injuries were causally related to his work activities as
the evidence presented was insufficient to demonstrate that
his injury occurred during his employment at
Hardee's. After a review of the record, the Court
agrees and finds the record contains substantial evidence to
support the Board's finding that the Appellant's
shoulder injury was not causally related to any incident that
occurred at Hardee's on November 12, 2016.
employee is entitled to receive workers' compensation
benefits for injuries "arising out of and in the course
of the employment." The injured employee, as the moving
party, has the burden of proof to determine what compensation
he is due.The employee also has the burden to prove
not only that an injury occurred, but when that injury
occurred. The causal link between the
accident's occurrence and injuries sustained is required
to be demonstrated by a preponderance of the
cases of specific and identifiable workplace accidents, this
Court has held that the "but for" definition of
proximate cause is applicable. However, the workplace
accident itself does not have to be the sole cause, or even a
substantial cause of the injury. "If [a] worker has a
pre-existing disposition to a certain physical or emotional
injury which ha[s] not itself manifested prior to the
time of the accident, an injury attributable to the
accident is compensable if the injury would not have occurred
but for the accident." "If the accident
provides the 'setting' or 'trigger,'
causation is satisfied for purposes of
The Board's ruling based in part regarding the
Appellant's credibility is supported by substantial
Board is the sole judge of a witnesses'
credibility. Here, the Board found that the
Appellant's failure to identify a specific day of injury,
coupled with his failure to seek immediate medical treatment,
detracted from his credibility. The Court agrees.
Board first cites that the Appellant's testimony was not
credible, in part, because of a date of injury discrepancy
during his first visit with Dr. DuShuttle. The Board was
specifically troubled because the Appellant could not
definitively state whether the injury took place in
"November or December" of 2016.
this specific basis for the Board's determination, it
appears that the Board misinterpreted the evidence used, in
part, in determining the Appellant's credibility. As a
matter of material fact, the Board incorrectly cited that the
Appellant did not state whether the injury occurred in
November or December 2016 on his first visit to Dr.
DuShuttle. On the contrary, the record clearly demonstrates
that the Appellant noted "11-12-2016" on the
December 15, 2016 intake form, as the date of
the Board's assertion regarding the Appellant's
apparent confusion on his first visit with Dr. DuShuttle also
appears misplaced. The record of the Appellant's
testimony demonstrates the following:
Q: From Dr. Dushuttle's depositon we also know that
there's some discrepancy in the reporting about the date
of your work injury. There's some paperwork from the
employer and in Dr. Dushuttle's office that says December
11-12/11. (sic) There's also some paperwork in Dr.
DuShuttle's office that says November 12, sort of exactly
the flip-flop date, and-was there some confusion at that
point when the date was, having given Dr. Dushuttle both?
A: Yes, because when I took a-when I took the report, gave
him a report of what happened, Mr. Branch, I told him I
didn't know whether it was November or ...