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Powell v. OTAC, Inc.,

Supreme Court of Delaware

December 4, 2019

STEVEN POWELL, Claimant-Below, Appellant,
OTAC, INC., d/b/a HARDEE'S, Employer-Below, Appellee.

          Submitted: October 16, 2019

          Court Below: Superior Court of the State of Delaware C. A. No. K18A-06-001

          Upon appeal from the Superior Court. AFFIRMED.

          Walt F. Schmittinger, Esquire, Candace E. Holmes, Esquire, Schmittinger and Rodriguez, P.A., Dover, Delaware, for Appellant Steven Powell.

          Andrew M. Lukashunas, Esquire, Tybout, Redfearn & Pell, Wilmington, Delaware for Appellee OTAC, Inc., d/b/a Hardee's.

          Before SEITZ, Chief Justice, VALIHURA and TRAYNOR, Justices.


         This is an appeal of a March 5, 2019 decision by the Superior Court affirming a decision by the Delaware Industrial Accident Board (the "IAB") denying claimant-appellant Steven Powell's ("Powell") petition for workers' compensation benefits. In his petition, Powell alleged that he suffered a work injury on December 11, 2016 while employed by OTAC, Inc. d/b/a Hardee's ("Hardees"). The IAB held a hearing regarding Powell's petition on June 5, 2018. The IAB heard testimony by deposition from a doctor on Powell's behalf and from a doctor on Hardees' behalf. It also heard live testimony from a Hardees General Manager and from Powell himself. After the hearing, the IAB denied Powell's petition, ruling that he had failed to establish that he injured his rotator cuff while working at Hardees. The IAB concluded that the testimony and evidence was "insufficient to support a finding that Claimant's injuries were causally related to his work for [Hardees]."[1] Specifically, the IAB noted that both Powell's "inability to report a specific day of injury" as well as his "failure to seek medical treatment immediately" after the alleged incident detracted from his credibility.[2] Further, it found that although "both medical experts agreed that [Powell's] treatment was reasonable for his rotator cuff tear, there was insufficient evidence that the rotator cuff tear occurred as the result of the alleged work accident."[3] The Superior Court affirmed the decision of the IAB.[4]

         Powell raises two issues on appeal. First, he asserts that the Board erred as a matter of law in denying his petition, and he claims that he did present sufficient evidence to demonstrate that his injuries occurred while working at Hardees. Second, he asserts that the Superior Court erred in affirming the IAB's decision and that it exceeded the scope of review by making findings of fact unsupported by the record below.

         For the reasons set forth below, we AFFIRM the decision of the Superior Court.


         A. Factual Background

         Hardees employed Powell as a back line cook for a time in 2016. His duties included cooking and handling boxes weighing approximately twenty pounds.

         On November 4, 2016, Powell fell off of a curb outside his sister's home and landed on his right shoulder. After he fell, Powell sought treatment at the emergency room and had an x-ray. Powell denied receiving any further treatment and reported returning to his regular job duties quickly following that incident.[5]

         Powell claims that he subsequently fell again, after slipping on a wet floor, but this time the fall allegedly occurred while he was working at Hardees. Powell stated that he reported the incident immediately to a woman named "Catherine, "[6] and was unable to finish his shift because he was in "too much pain."[7] Powell never returned to work at Hardees, although he testified that he was told to not return until he was better. An injury report was not completed at the time of Powell's fall. Powell also stated that he did not seek emergency treatment following the alleged work accident because he did not believe he needed a work excuse, given that he was told to not return until he was better.[8]

         On December 15, 2016, Powell sought treatment from Dr. Richard DuShuttle ("Dr. DuShuttle"), a board certified orthopedic surgeon. Dr. DuShuttle ordered an MRI, which indicated a complete rotator cuff tear. Powell told Dr. DuShuttle about his earlier fall on November 4, 2016, when he landed on his right shoulder and was unable to lift his arm as a result.[9] Powell also told Dr. DuShuttle that he had not received any further treatment related to the November 4, 2016 fall other than his initial visit to the emergency room. This led Dr. DuShuttle to conclude that Powell would not have sustained the rotator cuff tear had he not fallen at Hardees. He believed that Powell would not have been able to work following the November 4 fall if that fall resulted in the tearing of his rotator cuff. Dr. DuShuttle determined that all of Powell's treatment resulted from his alleged December 11 fall at Hardees. However, Dr. DuShuttle agreed that the November 4, 2016 injury was also sufficient to cause a rotator cuff tear. Dr. DuShuttle reported that, "an injury as significant as a rotator cuff tear would require immediate medical attention."[10]

         Dr. DuShuttle saw Powell again on January 25, 2017, and noted that Powell's rotator cuff injury was consistent with Powell's description of the injury. Dr. DuShuttle agreed that Powell had reported on his Patient Intake Form at his January 25, 2017 visit that his problem began on December 11, 2016, but that Powell had reported at his initial December 15, 2016 visit that the injury "occurred several weeks ago."[11] Dr. DuShuttle agreed that the injury Powell discussed allegedly occurred four days prior to his initial examination of Powell on December 15, 2106. Dr. DuShuttle believed that errors in his own notes resulted in the date discrepancies. He agreed that on the December 15, 2016 Patient Intake Form, Powell had indicated that his pain began on November 12, 2016.

         Powell completed an accident report for Hardees in "approximately February after the alleged incident," indicating that the alleged work accident occurred on December 11, 2016.[12] Powell testified that, "we had [a] discussion that I didn't know whether it was November or December" and that he stated that he was not sure, "so we went with December."[13] Tony Branch ("Branch"), the General Manager of Hardees, was not employed by Hardees at the time of Powell's alleged injury; however, he reviewed Powell's First Report of Injury. Branch agreed that the First Report of Injury was completed in February of 2017 and that he wrote what Powell had described as occurring. Branch determined that Powell had fallen at Hardees "at some point," but could not confirm the date of the incident.[14] That report listed two witnesses, "Catherine" (with no last name identified) and Jason Adam.[15] Branch unsuccessfully attempted to contact Catherine at the time he completed the First Report of Injury. Branch testified that he did speak with Jason Adam and confirmed that Powell did fall at Hardees when Powell was in the employee area behind the counter.[16] Branch also noted the last payroll records for Powell were from the first two weeks of November of 2016. Lastly, Branch testified that the payroll records also indicated that Powell was terminated on November 4, 2016.[17]

         Powell underwent surgery on his rotator cuff on March 6, 2017.

         Hardees presented the medical testimony of Dr. Jonathan Kates ("Dr. Kates") at the hearing. On June 26, 2017, Dr. Kates, a board certified orthopedic surgeon, examined Powell. During this examination, Powell represented that the injury occurred on December 11, 2016. Dr. Kates also testified that Powell denied any shoulder problems prior to the work incident.[18] However, Dr. Kates confirmed through Powell's records that Powell had sought immediate medical attention for his right shoulder after he fell from the curb on November 4, 2016.[19] Dr. Kates reported that Powell's fall on November 4, 2016 was sufficient to cause a rotator cuff tear. Dr. Kates agreed that if Powell did not have a prior history of shoulder problems, and the incident occurred on December 11, 2016 as Powell alleged, then Powell's injury would be related to the December 11, 2016 event.

         B. The IAB Decision

         On February 2, 2018, Powell filed with the IAB a Petition to Determine Compensation Due. In his Petition, Powell alleged his right shoulder injury was causally related to an incident that occurred at Hardees on December 11, 2016.[20] Hardees disputed that the injury was sustained while Powell was working there. The parties did agree that Powell suffered from a complete rotator cuff tear, for which surgery was reasonable and necessary. The parties' pre-trial stipulation listed the date of injury as "12/11/2016."[21] His hearing was held on June 5, 2018.[22]

         The IAB denied Powell's petition, determining that "[t]he testimony and evidence was insufficient to support a finding that Claimant's injuries were causally related to his work for [Hardees]."[23] The IAB based its determination, in significant part, on its assessment of Powell's credibility. It stated that his "inability to report a specific day of injury (even close in time to the alleged injury), as well as his failure to seek medical treatment immediately detracts from the credibility of his allegations."[24] More specifically, the IAB explained:

The Board finds it incredible that Claimant would be uncertain if the alleged work related fall occurred four days prior (December 11, 2016) to his initial visit with Dr. DuShuttle or nearly four weeks prior (November 12, 2016). Furthermore, [Powell] admitted that the date of injury on his Petition is also December 11, 2016; but alleges that he did not realize the actual date of injury, which he claimed to be November 12, 2016 by the time of the hearing, until he was involved in a deposition. Moreover, when [Powell] completed an accident report for [Hardees] in early 2017, he reported that the incident occurred on December 11, 2016. Thus, [Powell's] inability to determine the exact date of the alleged work accident detracts from his credibility.[25]

         The IAB also concluded that, "[Powell's] lack of treatment following an alleged more significant injury detracts from his case further."[26] In this regard, the IAB found it significant that Powell "sought immediate medical treatment following the fall from the curb (which he alleges did not cause as severe symptoms as the alleged work accident), but did not seek treatment for the alleged work accident for at least four weeks, despite his report that the pain was immediate and so severe he could not complete his shift."[27] The IAB found that there was insufficient evidence to establish that the rotator cuff injury occurred from the alleged fall at Hardees, and concluded that Powell "failed to meet his burden of proving that he sustained a work injury on December 11, 2016 or November 12, 2016."[28]

         C. Powell's Appeal of the IAB Decision to the Superior Court

         Powell appealed the IAB's decision to the Superior Court. The Superior Court affirmed, concluding that the IAB's decision was supported by substantial evidence and was free of legal error. The Superior Court found that Powell was employed by Hardees on November 12, 2016, but that Powell had failed to establish a causal connection between his shoulder injury and an incident at Hardees.

         Although the Superior Court noted the IAB had erred in interpreting certain evidence impacting Powell's credibility, it found that the error was not the sole basis for the IAB's credibility determination. Specifically, the court said that the IAB was incorrect in finding that Powell could not definitively state his date of injury on his initial visit to Dr. DuShuttle on December 15, 2016, because the paperwork indicates "11-12-2016."[29] Thus, the court found the IAB had incorrectly determined that Powell was confused during his initial visit with Dr. DuShuttle and that Powell's confusion occurred at a later time.[30]Despite its finding that the IAB had erred in this regard, the Superior Court, nevertheless, found that substantial evidence supported the IAB's finding of Powell's lack of credibility, including Powell's failure to seek immediate medical treatment following the alleged December 11 incident. The Superior Court also noted the IAB's findings of "additional date of injury discrepancies regarding the Appellant's assertions, as documented by him on the 2017 Hardee's injury report, and his IAB petition."[31] The Superior Court therefore concluded that, "the record and testimony clearly shows substantial evidence supporting the Board's determination regarding the Appellant's credibility with relation to the date of injury discrepancy."[32]

         On April 4, 2019, Powell filed a timely notice of appeal to this Court.


         "The review of an Industrial Accident Board's decision is limited to an examination of the record for errors of law and a determination of whether substantial evidence exists to support the Board's findings of fact and conclusions of law."[33] "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"[34] It is "more than a scintilla but less than a preponderance of the evidence."[35]"On appeal, this Court will not weigh the evidence, determine questions of credibility, or make its own factual findings."[36] "In reviewing an appeal from a decision of the Board, this Court and the Superior Court must both determine whether the Board's decision is supported by substantial evidence and is free from legal error."[37] "Weighing the evidence, determining the credibility of witnesses, and resolving any conflicts in the testimony are functions reserved exclusively for the Board."[38] Further, "[o]nly when there is no satisfactory proof to support a factual finding of the Board may the Superior Court or this Court overturn that finding."[39]

         III. ANALYSIS

         In this opinion, we focus on the two principal claims of error Powell asserts on appeal.[40] First, he claims that the IAB erred in denying his petition because he presented sufficient evidence to demonstrate that his injury occurred while working at Hardees. Powell also contends that the "undisputed scientific evidence" supports his petition, and that his delay in seeking medical treatment does not render his injury noncompensable. Second, he contends that the Superior Court exceeded its scope of review and improperly made findings of fact of its own. We reject Powell's contentions as explained below.

         A. Substantial Evidence Exists to Support the Board's Determination that Powell Failed to Present Sufficient Evidence.

         The Delaware Workers' Compensation Act provides that employees are entitled to compensation "for personal injury or death by accident arising out of and in the course of employment."[41] Powell had the burden of proof as the petitioner.[42] As such, he had the burden to establish that the alleged injuries occurred within the course and scope of his employment.[43] Further, "the claimant must demonstrate that a work-accident occurred, establishing one 'with a definite referral to time, place and circumstance.'"[44] In addition, "the claimant must also show a causal link between the accident that occurred and the injuries he sustained."[45] All of this must be established by a preponderance of the evidence.[46]

         Against this backdrop, we examine Powell's argument that the IAB erred in denying his petition because he presented sufficient evidence to demonstrate that a work accident occurred causing his rotator cuff injury. He contends that his confusion of dates and failure to seek treatment should not weigh against him. Whether an injury arose out of and in the course of employment is essentially a question of fact. Often, as in this case, this factual finding depends in large measure on the Board's assessment of the credibility of the witnesses who testify before it. It is the exclusive function of the Board to evaluate the credibility of witnesses.[47] Here, the IAB found Powell's testimony lacking in credibility.

         Powell cites Playtex Products, Inc. v. Leonard[48] for the proposition that his confusion as to the date of the injury should not preclude him from receiving benefits. He argues before this Court that he "apparently transpos[ed] the accident month and date."[49]In Playtex, the claimant experienced an injury while working within the scope of her duties and informed her supervisor of the incident. She called her physician the following day, but could not get an appointment until three or four days later. She was then referred to a neurologist who saw her approximately a month later.[50] After that visit, she was provided with forms, and due to her injury, she had her husband fill them out. The date of incident on the forms differed from the date of incident alleged by the claimant. Despite this discrepancy, the Board found the claimant was credible as to the cause and ...

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