IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR K

ENT COUNTY

MICHAEL TEDESC O, : : C.A. No: K14A-09-002 RBY Appellant, : : v. : : BAYHEALTH MEDICAL CENTER, : : Appellee. :

Submitted: February 4, 2015 Decided : March 13, 2015
Upon Con sideration of Appellan t’s Appeal from the Indus trial Acci

dent Board AFFIRMED IN

PART and REMA

NDED IN PAR

T

Ch ristopherA. Am

alfitano, Esquire, Ram

unno & Ram

unno, P.A ., W ilming

t on , Delaware for Appe llant. Keri L. Morris-Johnston, Esquire, Marshall Dennehey Warner Coleman & Goggin , Wilmington, Delaware for Appellee

.

Young, J.Tedescov. Bayhe alth Medic

al Center C.A. No.: K14A-09-002 RBY March 13, 2015

2 SUMMARY The Industrial Accident Board (“T he Board”) ruled against Michael Tedesco (“A

ppellant”) , holding tha

t his current need for

medic al treat

ment with respect t o his left kn ee, did no t arise f rom a fall he su stained w

hile on his emplo yer B ayhealth Healt h Medical Center, Inc.’ s (“A ppellee” ) prem

ises. T hus, the Board denied Ap pellant’ s Petition to Determ ine Additi onal Com

pensation Due. Ap pell ant fu rther alleg es th at the Board deni ed hi s requ est fo r atto rney’s fees, st emm

ing from a purporte dly con solidated m atter. The Boar

d’s dec ision make s no me ntion of this request or its denial. This Cour

t is to reverse the r

uling of theBoard only

if that de cision wa s not based in subs tantial ev idence, or was th e result of legal er ror. Finding neithe r to be true, the Court AFFIRMS this aspec t of the Boa rd’s de cision. With re gard to the

issue conc erning App ellant’ s request f or attorney’s fees, this appears not to have been decided by the Board. Accordingly, the Court REMANDS , with ins truction to the Board to address and clari fy its findings on this subje ct. FACTS AND PROCEDURAL POSTURE The factual circum stances und erlyi ng the pres ent a

ppeal are numerous, a

nd detail many

u nfortunate

happenings in the life of Appell ant. On J anuary 19, 2009, Appellant , at t he t ime emp loye d as a su rgi cal n urs e by Ap pellee, slipped wh ile on dut y, allegedly twis ting his knee. On January 22, 2009, h is superviso r sent him to be examined at Appellee’s Employee Heal th Center, wh ere it wa s determined he had suffered a co ll ate ral lig ame nt strai n. Appel lant retur ned on Janua

ry 29, 2009, andTedescov. Bayhe alth Medic

al Center C.A. No.: K14A-09-002 RBY March 13, 2015

1 Appellee’s Answering Brie f, at p. 2. 3 reported that there

had been a

n 80% resol

ution of, a

t least, part of hi s condition. Appellant was then t

reated by Dr. Ro we, w

hose diagnosis, as of

January 2009,
was left knee patella femoral sy ndrome. He ordered a

n MRI which found “linear meniscal degenera

tion or non d isplaced horizontal tear of the posterior medial meniscus.” 1 However, Dr. R owe did not believe that Appellant’s condition required
sur ger y. App ell ant was i nst ead giv en a regi men of phys ical the rap y, chiropra ctic care, and medicatio n. On July 27, 2009, Appe llant was exam in ed by Dr. Elliot L eitman (“ Dr. Lei tman”), an orthopae dic surgeon , at the r equest of A

ppellee. Dr. L eitma

n is also Appel lee’s expertin this case . Afte r his exam ination of A

ppellant, and

a review of Dr. Row e’ s records, including the MRI, D r. Lei tman c oncluded tha t surgery was not needed. Although the MRI showed a tear, according to Dr. Lei tma n, the pain Appellant complained of was not in the location of the tear. Dr. Leitman further diagnos ed Appellan t as havin g a left knee sprain. After ceasing tr

eatm ent with D r. Rowe

in 200 9, Appel l ant did not seek treatment again unt il 2013. Du rin g this four year gap, Appellant sustained an additional s lip and fal l acciden t at work, in Februa

ry 2010

. This was soon followed by a car ac cident in O ctober 20 10. The f inal event

in this ser

ies of m isfortunes , occurred in September 2013, when Appellant sustained ye t another slip and fall at an
amuse ment park. This last incident pr

ompte d Appella

nt to seek m

edical ca re, in November

2013. Appellant was attended to by Dr. Pilkington, who ordered anotherTedescov. Bayhe alth Medic

al Center C.A. No.: K14A-09-002 RBY March 13, 2015

4 MRI. The MRI revealed a m eniscus tear, which, Dr. Pilk ington found, required surgery. The Appellant then sou ght the car e of Dr. Richard Du Shuttle (“Dr. DuShuttle”), an orthopae dic surgeon , in Febr uary o f 2014. Dr. DuShuttle reviewed the findings of

Dr. Ro we and D r. Lei tman, disagreeing that Appellan t was not du e for knee surgery , follow ing the 2009 incident. It is Dr. DuShuttle’s opinion that a causal link existed between Appellant’s curre nt medic al n eed s, an d th e 20 09 w ork inju ry. Dr. DuShuttle is Appella nt’s expert i n this cas e. Dr. Letiman, again, con ducted an exam of Appellant , a t t he request of Appellee, in Februa

ry of 2014. In so doing, he again reviewed the previous medical findings, as well as the new exams conducted by Dr. Pilkington and Dr. DuShuttle. Dr. Leitman f

ound that A ppel lant ’s curr ent co mplain ts, wh ich le d to Dr . Pilk ingt on’s suggestion

of s urg ery, are in

no way related to the 2009 inj uries. T his is due to t

he fact that, ac cording to D r. Lei tman, the curr ent injur ies and the

injurie s sustained in 2009, are in two differen t places. On January

8, 2014, A

ppellant f

iled a Pe titi on to Determine Additional Compensation

Due, seeking covera g e of ongoing m edical ca re, whi ch he alle ges is necessitatedby the2009 work a ccident. Following ahearing, the Board

ruled in f avor of Appellee , on

August 11, 2014. The Board did not find a causal connection between the 2009 fall and App ellant’s curr ent requir ement of treatment. Although there is some confusion about this, Appellant further alleges that in

a consolidated ac tion, f ollowing A

ppellee’ s withdra

wal of P etition for Review/Ter

mi nation, Appellan

t filed an affidavi t requesting attorney ’s fee s.Tedescov. Bayhe alth Medic

al Center C.A. No.: K14A-09-002 RBY March 13, 2015

2 29 Del. C . §10142( d); Avon Prods. v. Lamparski , 293 A.2d 559, 560 (Del. 1972).

3 Olney v. Cooch , 425 A .2d 61 0, 614 (Del. Super . Ct. 1981) (citi ng Consolo v. Fed. Mar

. Comm’n , 383 U.S. 607, 620 (1966)).

4 Id. (quot ing Cross v. Calfano , 475 F.Supp. 896, 898 (M.D. Fla. 1979)).

5 Johnson v. Chrysler Corp. , 213 A.3d 64, 66 (Del. 1965).

6 Delaware Transit Corp. v. Roane , 2011 WL 3793450, at *5 (Del. Super. Ct. Aug. 24, 2011) (internal quotations omitted). 5 Appellant apparently raised this issue at the Augu st 2014 hear

ing, rega rding the present matt er on appeal. Appellee

avers tha t the Boar d did not consi der this re quest,
as it was not before the Board properly , at that

time . Appell ant’s rendition is e ven less illuminating as to how t

his request

was ha ndled . Whic hever re citation of events is accurate, it i s clear the Bo ard did no t address t his issu e in its op inion. STANDARD OF REVIEW For a dministrative board appeals, this Court is limited to reviewing whether th e Board ’s decision is supported by substantial e vidence an d free f rom l egal err

ors. 2 Substantial evidence is that which “a reasonab le mi nd might accept a s adequate

to support a conclusi on.” 3 It is “more than a scintill a, but les s than prep onderance of the eviden ce.” 4 In revie wing the B oard’s decision, the Court i s to avoid be having as a “trier of fact with authori ty to w eigh the ev idence, determ ine question s of

cred ibi lit y, and make its own factual fin dings an d conclus ions.” 5 An abuse of di scretion will be found if the board “ acts arbi trarily or capri ciously ...ex ceeds thebounds of re ason in view of the circumstances and has ignored recognized rules of law or practice so as to produce in

justice.” 6 Where

an agency

has interp reted and

applied a s tatute, t

heTedescov. Bayhe alth Medic

al Center C.A. No.: K14A-09-002 RBY March 13, 2015

7 Lehman Br

others Ban k v. State

Bank Comm ’r, 937 A.2d 95, 102 (Del. 2007).

8 Anchor M

otor Freig

ht v. Ciaba ttoni, 716 A.2d 154, 156 (Del. 1998).

9 Johnson , 213 A.3d at 66.

10 Kreshtool v. Delmarva Power & Light Co., 310 A.2d 649, 652 (Del. Super. Ct. 1973). 6 court ’s re view is de novo

. 7 In the absence of an error of l aw, la ck of substa ntia l evidence or abuse of discretion, the Court will not disturb the decisi on of the boa rd. 8 DISCUSSION Although present

ing his appea

l in five a rguments , Appellant , ess ent ial ly, make s only tw o points: 1) t

he Board d

id not base i ts decision on substantial evidence ; and 2) the Boa

rd com mitte d an error

of law in not awardin g attorney ’s fee s, pursuan t to 19 Del. C . §2320(10) . As to A ppellant’ s first poin

t , the C ourt finds that the Board sufficie ntly

consider ed the evid ence presen ted it, we ig hed the facts accordingly, as is its pre rogative , and came to a reason able concl usion. With respect to the second cont ention, the Court find s that there

is consider

able confusion regardin g what occurred in th e proceedings below, and, thus, rem ands that portion of this cas e back to th e Board for fu rther cont emplation. When reviewi ng the deci sion of an a dminis trative agency , the Cour t is to avoid behavingas a “trier of fa ctwith autho rity t o weigh the evidence , determ

ine question s of credibili ty, a

ndmake its own factu al findin gs and con clusion s.” 9 Moreover, even
were the Court to have rea ched a dif ferent c onclusion, based upon the record below, the decision of

the Board

is to rem ain undistur

bed. 10 The only requirem ent is that the evidence underlying the ruling be such tha t “a r easonable mind m ight accept [it] asTedescov. Bayhe alth Medic

al Center C.A. No.: K14A-09-002 RBY March 13, 2015

11 Olney, 425 A.2d at 614.

12 2002 WL 31667520, at *1 (Del. Super. Ct. Oct. 29, 2002). 7 adequate t o suppo rt a conclu sion.” 11 Specificto the case

at bar, the eviden ce revie wed b y the Board ca n best be describedas a battl e of the e xp ert s. Appellant’s expert, Dr. DuShuttle, opined that Appel lant ’s current medical ailm ents were causally related to his 200 9 wo rk i njur y. Appellee, meanwhile, presentedthe exper t testimony of D r. Lei tman, which did n ot considerthere to be acausal link. Inde ed, the pr ecise disc ord concer

ns the tim ing of

a menis cal tear , req uir ing left kne e su rge ry. . In coming to its decision, the Board considered the opinions o f all the experts, makin g a credib ility d eterm ination that

the 2009 injury was not the cause of Appellant’ s current health concerns. This ruling was made after c ontem

plating the testim onies of both parties’ experts. There i s no reason to think the decisi on was based on anything but subs tantial ev idence. Appellant seem s to argue t

hat the testim ony of D r. DuS huttle, hi s expert, was “unrebutted,” and thus, p ursuant to Mermelstein v. Lewes Citizens Senior Ctr., Inc. , 12 the Board abu sed its disc retion in r uling agains t him. In partic ular, A ppellant contends that hi s adv ersary n ever p rovi ded ev iden ce to d ispu te tha t Appe llan t’s medical nee ds w ere c aus ed b y h is subsequent a ccidents, as opposed to the 2009 inju ry. Theref

ore, Appellant, without fo undation, c ontends that the Board

based its decision sole ly on Ap pell ee’s Co unse l’s closing ar gument . Although

Appellan t may prefer the findings of Dr. DuShuttle, this does not mean that the record was ber eft of rebutting evidence on which th e Board c ould base it s ruling. T he issue in t

he case wasTedescov. Bayhe alth Medic

al Center C.A. No.: K14A-09-002 RBY March 13, 2015

13 See Board’s Opinion, at p. 11(“[i]in this case, the primary issue is whether the medical treatment (surgery

) required to treat the left knee sy mptomology is causally

related to the 2009 left knee work injury

”).

14 Id., at *3.

15 1992 WL

53435, at *1 (Del. Feb. 28, 1992); 201 0 WL 117 3098, at * 1 (Del. Su per. Ct. Mar. 26, 2010). 8 whether Appellan t’s current t

reatm ent was ne cessitate d by the 2009 accident – not whether the other incidents played a role. 13 Moreover, the Court does not find that a determ ination as to one ne cessaril

y requires a de termination as t o the other. Nor are they mutually exclusive, for that m

atter. Dr. D uShuttle opined that the 2009 accident
wa s t he cau se, whi le App ellee ’s expe rt op ined it was not. Ap pell ee’s ex pert’s testim ony spe a ks directl

y, a nd in opposition

to Dr. DuShuttle’ s conclusion s. Mermel stein is inapposite, as that Court was face d witha situation in which “there
was no contrar

y m edical opinionfor the Board to acce pt.” 14 Conversel y, the findings of Appellee ’s e xperts are, precisely, the contrary medic al opinions lacking in Mermel stein. The comparison i s, simply, not on po int. Appel lant ’s second cont ention conc erns 19 Del. C . §23 20(10). According to Appellant , Lattis v. Blackwe ll , togethe r with Short v. A CME Ma rkets , stand fo r the proposition that pursuant to §2320(10), if a petit ion is withdraw

n within 30 da

ys of

a scheduled h earing, and the em ployee files an a ffidavit f

or attorney’s fees, the Board is to award

such fees

. 15 Appellee

points out, and A

ppellant doe s not dispute, that the Board ’s decision makes no reference to attorney’ s fees, whether denyin g or granting th em. Evi den tly, the partie s settled a separa te matte r conc ernin g Appe llan t’sTedescov. Bayhe alth Medic

al Center C.A. No.: K14A-09-002 RBY March 13, 2015

16 Exhibit B to Appellee’s Answering Brief, at p. 100-102.

17 Hubbard v. Unemployment Ins. Appeal Bd. , 352 A.2d 761, 763 (Del. 1976).

18 Wilmington Trust Co. v. Conner , 415 A.2d 773, 781 (Del. 1980).

19 Reise v. Bd. of Bldg. Appeals of City of Newark, 746 A.2d 2 71, 274 (D el. 2000)(“[i]t is settled law that a quasi-judicial tribunal must state the basis for its decisions, in order to allow judicial review”). 9 tempo r ary

total disab ility ( “TD D Matter ”), prov ided him

by App ellee. Appellant
avers that this matter

was conso lidated w ith the matter cur rently on appeal, to wit the
casu al nature of the 2009 work injury. Further, Appellant alleges that the parties settled the TDD Matter, within 30 day s of ascheduled h earing. Appellan t alleges that as per Lattis , the Boa

rd should hav e awar

ded Appell ant its att orney ’s fee s. As an initial matter, this Court notes that t

he Board’ s decision

did not m ake any reference to whethe r Appella nt was to receive

the attorn ey’ s fees. Furtherm ore, the record, as cited t o by the

parties, shows only

one area in w

hich there is me ntion

of the request for attor ney’ s fees. 16 In facin g this issue, the Court is thwarted by two judicial

r eview principals. The first provides that when reviewing the decision of a n admin istrative

board, th e Court is limit e d to the rec ord below. 17 The sec ond is the related general a

dmoniti on that appe llate cour ts are no t to conside r new issu es on appeal. 18 That is, if the issue wer e not raise d below, it cannot be considere d by the reviewing court. A

t this junc ture, it

is unclear whether the Board ruled upon the issue of attorney ’s fee s, or whether this issue were e ven proper

ly bef ore it. T his is prim

arily because the Board ’s opinion does not addr

ess this top ic. The refore, the Court r eman ds this issue to the Board to clarify its views on the m atter. 19 Specifi cally , the Boa rdTedescov. Bayhe alth Medic

al Center C.A. No.: K14A-09-002 RBY March 13, 2015

20 Gen. Motors Corp. v. Freeman , 164 A.2d 686 (Del. 1960). 10 should determ ine 1)whe ther, as Appellan t claim s, the T DD m atte r and t he present matter, were t ruly consolidated; and 2) if they were, why it is, despite Lattis’ declara tionthat attor

ney’ s fees ar

e to be aw arded, p ursuant to §2 320, the Board did not grant Appellant ’s request. CONCLUSION Based upon the foregoing, the Court will AFFIRM in part, and REMAND in partth e de cis io n o f th e Bo ard . Th e Co urt aff irms the Board ’s ruli ng th at App ellan t’s current needfor medic al t reat ment i s no t cau sal ly rel ated to h is 2 009 work inju ry. That finding wa s base d upon substant ial eviden ce–the w eighing of bo th parties ’ expertopinions. Where substantial evidence supp orts the Bo ard’s findings, the Court will not disturb the decision, absent an error of law. 20 The Court finds no error of law
comm itted by the Board

. As to the issue

regardin g Appella

nt’s af fidavit fo r attorne y’ s fees, the Court REMANDS this iss ue to the Bo ard for furth er clarificat ion. IT IS SO ORDERED

.
/s/ Rober t B. Youn g J.
RBY /l mc oc: Prothonotary cc: Counsel Opinion Di stribution File