IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WAYLON MABREY, :

 :

Appellant, :

 : C.A. No.: K22A-06-001 JJC

 :

v. :

 :

STATE OF DELAWARE, :

 :

Appellee. :

Submitted: June 21, 2023

Decided: September 21, 2023

ORDER

On this 21

st day of September 2023, after considering the record and the 

parties briefing, it appears that:

1. Appellant Waylon Mabrey appeals a decision of the Industrial Accident

Board (hereinafter the “Board” or the “IAB”) denying his petition to determine 

compensation due. Mr. Mabrey worked for the State as a DART Equipment 

Operator. Before the IAB hearing, the parties stipulated that he suffered a 

compensable work injury to his head and cervical spine after a tire struck him in the 

head while at work on February 27, 2019 (hereinafter the “accident”).1 His petition 

sought compensation for permanent impairment to his cervical spine related to the 

accident. The stipulation also recognized that the parties’ two competing experts 

1 The Court refers to the certified record before the IAB as [“R. at”]. R. at Ex. 5.
2

had contrary opinions regarding permanent impairment: Mr. Mabrey’s expert 

opined that he suffered a twenty-percent impairment of the cervical spine, and the

State’s expert opined that he suffered no permanent impairment as a result of the 

accident.2 

2. After the accident, through June 1, 2022, Mr. Mabrey received medical 

treatment for his injuries. His treatment included, inter alia, physical therapy and 

neck injections.3 At some point between November 4, 2019, and April 5, 2021, Mr. 

Mabrey’s medical provider released him to full-duty work with no restrictions.

4

Despite his release to full-duty, Mr. Mabrey testified that he continued to avoid 

lifting objects weighing more than thirty pounds both at work and at home.5

3. Mr. Mabrey also had a previous workers’ compensation claim for a 

work accident in 2014 (his “prior accident”).

6 There, he suffered injuries to his right 

upper extremity.

7 During Mr. Mabrey’s treatment for injuries from the prior 

accident, however, no medical provider or retained expert diagnosed him with a 

cervical spine injury related to the prior accident.

8

 Nevertheless, his medical records

reference neck pain and radiculopathy dating back to at least 2014.

9

 

4. At the hearing, the parties presented deposition testimony from two 

expert medical witnesses. Dr. Steve Rodgers testified on behalf of Mr. Mabrey and 

Dr. Andrew Gelman testified as a defense medical expert for the State. First, Dr. 

Rodgers testified to a reasonable degree of medical probability that Mr. Mabrey 

2

Id.

3 Mabrey v. State of Delaware, No. 1482408, at 3 (Del. IAB June 9, 2022) [hereinafter “IAB 

Order”].

4

Id. at 7.

5

Id. at 8.

6

Id. at 2.

7

Id.

8

Id.

9 Emp.’s Ex. 1, R. at 24:1–4; 28:9–17 [hereinafter “Dr. Gelman’s Dep. at . . .”]; see id. 43:8–15 

(stating that his records evidence radiculopathy as far back as 2014).
3

suffered a twenty-percent impairment to the cervical spine caused by the accident.10 

He acknowledged, however, that Mr. Mabrey’s treatment records included 

documented neck pain throughout 2018 and into early 2019 immediately before the 

accident.11 In his testimony, he also conceded that Mr. Mabrey had remained highly 

active and was doing quite well.

12

5. Dr. Gelman testified on behalf of the State. He acknowledged that Mr. 

Mabrey had cervical spondylosis with radiculopathy but testified to a reasonable 

degree of medical probability that the accident was not the cause of those conditions. 

Rather, he opined that the accident caused only a concussion and “strain and sprain”

to his neck that resolved by 2022.

13 Furthermore, he opined that Mr. Mabrey’s 

injuries required treatment from February 2019 through April 2021, which was 

approximately six months before Dr. Gelman’s exam.14 Finally, he focused on the 

entries in Mr. Mabrey’s medical records that referenced his cervical complaints 

before the 2019 accident.15

6. In a written decision, the IAB found Dr. Rodgers’ testimony regarding

causation of permanency unpersuasive for three reasons.16 First, it discredited his 

opinion because it relied on the fact that Mr. Mabrey had only a single positive 

Spurling’s test finding in September 2019. In contrast, Mr. Mabrey’s treating 

physician performed seven Spurling’s tests over his two-year course of treatment for 

10 Claimant’s Ex. 1, R. at 22 [hereinafter “Dr. Rodgers’ Dep . . . ”].

11 See id. 29:3–4 (acknowledging in testimony that Dr. Gondolfo’s chiropractic records “address 

both the cervical spine and the shoulder on a continuing basis,” before the accident.); Id. 31:18–

23 (acknowledging that Dr. Gondolfo’s chiropractic records reported neck pain throughout 2018 

and 2019).

12 Dr. Rodgers’ Dep. 35:1–22. 

13 Dr. Gelman’s Dep. 26:22–24; 27:1–5. 

14 Id. 51:8–21.

15 See id. 21–22 (referencing Mr. Mabrey’s prior chiropractic records that recorded “moderate neck 

pain” and noted “muscle spasm bilaterally, C4-C5 and T1” which became worse when “lifting, 

pushing, pulling with his hands, reaching out up and down”).

16 IAB Order at 12.
4

the accident which produced all negative results.

17

 Second, the Board found that Dr. 

Rodgers assigned too little weight to the chiropractic reports that described Mr. 

Mabrey’s significant prior neck pain.18 Third, the IAB took issue with Dr. Rodgers’ 

blanket discounting of other cervical related entries in Mr. Mabrey’s early 2019 and 

2018 medical records that predated the accident. Those entries included one entered 

immediately before the accident that referenced his history of “moderate neck pain 

symptoms, achiness, and tightness.”

19

 

7. The Board also considered Mr. Mabrey’s current activity level when 

assessing whether he suffered permanent impairment related to the accident.

20

 Mr. 

Mabrey testified that he was able to perform most of his job duties with minimal 

accommodations and now requires only over-the-counter medication for headaches 

and prescription muscle relaxers to help with sleep.21 Furthermore, treatment 

records from Mr. Mabrey’s physician recorded that Mr. Mabrey continued to enjoy 

a high level of activity and had no upper extremity numbness or weakness.22 Given 

this evidence of record coupled with Dr. Gelman’s opinion that all injuries related 

to the accident resolved before the hearing, the Board found that Mr. Mabrey had 

failed to meet his burden of establishing that he suffered any permanent impairment

related to the accident.

23

 

8. Mr. Mabrey now appeals the Board’s decision. On appeal, he urges the 

Court to give no deference to the Board’s expert credibility determinations because 

17 Id. at 7. 

18 Id. 

19 Id.

20 Id.

21 See id. at 12, 14 (finding Mr. Mabrey suffered no permanent impairment causally related to the 

work accident); see also id. at 13 (finding that Mr. Mabrey failed to prove his minimal limitations 

warranted a twenty-percent permanent impairment).

22 Id. at 13.

23 Id.
5

both experts testified via deposition.24 Separately, Mr. Mabrey contends that the 

Board erred as a matter of law in two ways. First, he contends that the Board erred 

by not concluding that the 2019 accident aggravated his pre-existing injuries.

25

 

Second, he alleges that the evidence of record required the Board to award at least a 

lower permanent impairment percentage, even if Mr. Mabrey failed to prove a 

twenty-percent impairment.26

9. The State counters that the Board permissibly exercised its discretion 

when discrediting Dr. Rodgers’ opinion.27 The State further contends that the record 

contains substantial evidence to support the IAB’s finding that Mr. Mabrey suffered 

no permanent impairment related to the accident.

28

 

10. In this appeal, the Court’s review of the IAB’s factual findings is 

limited to determining whether the Board’s decision is supported by substantial 

evidence.29 Substantial evidence means “such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.”30 It is “more than a scintilla 

but less than a preponderance of the evidence.”31 Furthermore, on appeal, the Court 

views the facts in the light most favorable to the prevailing party below.32 Moreover, 

the Court does not determine questions of credibility or make its own factual 

findings.33 Absent an error of law, which the Court reviews de novo, the Court must 

24 Id. at 12–13.

25 Appellant’s Opening Br. at 14–15. 

26 Id. at 18.

27 Appellee’s Answering Br. at 17.

28 Id.

29 Bullock v. K-Mart Corp., 1995 WL 339025, at *2 (Del. Super. May 5, 1995) (citing General 

Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960)).

30 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Fed. Mar. Comm’n, 383 

U.S. 607, 620 (1966)). 

31 Washington v. Delaware Transit Corp., 226 A.3d 202, 210 (Del. 2020) (citation omitted). 

32 Chudnofsky v. Edwards, 208 A.2d 516, 518 (Del. 1965).

33 Bullock, 1995 WL 339025, at *2 (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 

1965)).
6

uphold a decision of the IAB supported by substantial evidence unless the Board 

abused its discretion.34 The Board abuses its discretion when its decision exceeds 

the bounds of reason in view of the circumstances.35 

11. The Court first addresses Mr. Mabrey's argument that the Court should 

give no deference to the Board’s expert credibility determinations.

36

 For that 

premise, he relies on the Superior Court decision Lindsay v. Chrysler.

37

 In Lindsay, 

the court refused to give deference to the Board’s conclusory preference for one 

doctor’s testimony over another. There, the Board had recognized that one doctor’s 

testimony was merely “persuasive,” without further explanation.38 Under that 

circumstance, the court remanded the matter to the IAB for additional explanation.

12. Mr. Mabrey’s case is more analogous to the appeal considered in 

Glanden v. Land Prep, Inc.,

39

 however. There, the Delaware Supreme Court 

examined contrary expert witness opinions as to permanent impairment. When 

doing so, the Supreme Court distinguished Lindsay and limited its holding to the 

recognition that the Board must explain its decision to discredit an expert’s opinion

with more than a single conclusory statement.

40 More importantly, the Supreme 

Court in Glanden reaffirmed the principle that the “board is free to choose between 

conflicting medical expert opinions” and that reliance upon expert testimony itself 

constitutes substantial evidence.41

13. Here, unlike in Lindsay, the Board specifically outlined its basis for 

discrediting Dr. Rodgers’ opinion by citing significant evidence of record to support 

34 Hoffecker v. Lexus of Wilmington, 2012 WL 341714, at *1 (Del. Feb. 1, 2012) (TABLE).

35 Id. 

36 Appellant’s Opening Br. at 16.

37 1994 WL 750345 (Del. Super. Dec. 7, 1994).

38 Id. at *3.

39 918 A.2d 1098 (Del. 1997).

40 Id. at 1101.

41 Id. at 1102.
7

its decision. Namely, the Board explained why it rejected Dr. Rodgers’ opinion that 

Mr. Mabrey’s cervical spondylosis with radiculopathy worsened after the accident. 

When rejecting Dr. Rogers’ opinion in favor of Dr. Gelman’s, the Board explained 

how it placed significant weight on the seven negative Spurling’s tests performed by 

Mr. Mabrey’s treating physician. Those seven negative tests both pre-dated and 

post-dated the single positive test performed by Dr. Rodgers. Furthermore, the 

Board explained that it rejected Dr. Rodgers’ opinion that the accident caused 

permanent cervical impairment because Dr. Rogers had disregarded Mr. Mabrey’s 

prior medical records dating back to 2013.

42

 Finally, the Board recognized that Mr. 

Mabrey’s current capabilities – full-time work with no restrictions and minimal 

accommodations – further cut against a finding that the accident caused him 

permanent cervical impairment.

43

 With those explanations, the Board articulated 

why it assigned no weight to Dr. Rodgers’ opinion. Given those adequate 

explanations, the analysis settles upon a review for substantial evidence. Dr. 

Gelman’s testimony that Mr. Mabrey suffered no permanent impairment related to 

the accident constituted substantial evidence to support the IAB’s decision. 

14. Mr. Mabrey separately contends that the Board erred as a matter of law

because it failed to articulate what causal link existed between Mr. Mabrey’s preexisting impairment and a post-accident aggravation.

44

 In support, Mr. Mabrey

emphasizes that he never required an EMG, spinal injections, or had a physician 

diagnose him with radiculopathy before the 2019 accident.

45

 He further stresses

that his neck-related treatment, including the need for injections in the first instance, 

increased after the accident.

46

 When focusing on his aggravation of injuries, he 

42 IAB Order at 10, 12.

43 Id. at 13.

44 Appellant’s Opening Br. at 18. 

45 Id. at 16–17.

46 Id. at 17.
8

relies on Reese v. Home Budget Center.

47 That decision provides the proper

causation test in a workers’ compensation claim involving a pre-existing injury. In 

Reese, the Delaware Supreme Court explained that a worker’s predisposition to a 

particular injury does not bar his or her claim for worker’s compensation if jobrelated duties aggravated or contributed to a resulting injury or disability.48

15. There is an important distinction between Mr. Mabrey’s claim and the 

claim examined in Reese. Namely, the Reese decision merely clarifies that the 

accident need be neither the sole cause nor a substantial cause of the injury to be 

compensable.

49

 In Mr. Mabrey’s case, there is no issue regarding causation of 

initial injury. The parties stipulated that he sustained a compensable work-related 

injury to his neck. Here, his petition for additional compensation due seeks 

compensation for permanent impairment to his neck. In other words, the potential 

“injury” that the IAB examined in this petition was potential permanent impairment 

in the area of injury. 

16. The Court acknowledges that Mr. Mabrey cites significant evidence 

that could have supported a Board finding that the accident aggravated a pre-existing 

cervical condition to the extent that the accident caused new (or increased)

permanent impairment. The record also contains substantial evidence to support 

the Board’s finding to the contrary. Again, Dr. Gelman testified that the accident 

caused no permanent impairment. Furthermore, Mr. Mabrey’s medical history

recorded years of neck discomfort and impairment that predated the 2019 accident. 

As recently as January 21, 2019 – immediately before the accident – chiropractic 

47 619 A.2d 907, 910 (Del. 1992). (holding that “[i]f the worker had a preexisting disposition to a 

certain physical or emotional injury which had not manifested itself prior to the time of the 

accident, an injury [...] is compensable if the injury would not have occurred but for the accident.”)

48 Id.

49 Id.
9

records recorded significant cervical limitations.

50

 Finally, Mr. Mabrey’s treatment 

had completely waned by the time of the hearing other than his use of over-thecounter medicines and the occasional use of muscle relaxers at bedtime. The record 

demonstrates that Mr. Mabrey (1) had not received a spinal injection since 2021, 

approximately a year before the hearing, and (2) Mr. Mabrey was able to return to 

his job on a full-time basis after the accident with only minimal accommodations.

17. Finally, Mr. Mabrey contends that the Board erred as a matter of law 

by failing to award some lesser percentage of permanent impairment. For this 

argument, he focuses on Dr. Gelman’s testimony where he posited that Mr. Mabrey

may have had a ten-percent permanent impairment that preexisted the accident.

51

 

That testimony, Mr. Mabrey contends, required the Board to find that he suffered at 

least some degree of accident-related permanent impairment. Dr. Gelman’s 

testimony, at its best for Mr. Mabrey, supported that he had a ten-percent preexisting 

permanent impairment that the accident did not aggravate, accelerate or contribute 

to producing further impairment above that pre-existing ten percent.52 Admittedly, 

had the record contained uncontroverted expert testimony that the accident had

contributed (in a but for sense) to an increase in permanency, then the Board would 

have been required to either (1) determine the exact percentage of permanency to

50 See Dr. Gelman Dep. 21:8-24 (testifying based upon Mr. Mabrey’s records that Mr. Mabrey told 

the chiropractor treating him before the accident he suffered from moderate neck tightness and had 

limited “lifting, pushing, pulling with his hands, and reaching out up and down;” and that the 

chiropractor recorded observing spasms bilaterally in his spine and appreciated tenderness in the 

area).

51 See Dr. Gelman’s Deposition 33:6–11 (opining that Mr. Mabrey had a ten-percent cervical 

impairment related only to his condition that existed prior to the accident).

52 See Reese v. Home Budget, 619 A.2d at 910 (recognizing that the principle in Reese applies 

only if (1) the work accident “aggravated, accelerated, or in in combination with the [preexisting] 

infirmity produced the disability, and (2) the injury had not manifested itself prior to the time of 

the accident). Here, the “injury” considered is permanency. Dr. Gelman maintained that even if 

Mr. Mabrey had a ten-percent cervical impairment before the accident, such a permanent 

impairment did not increase after the accident to any degree. 
10

award by keeping within the expert’s ranges, or (2) independently and clearly 

articulate the facts upon which it based a different conclusion.53 In this case,

however, Dr. Gelman’s opinions and the evidence regarding Mr. Mabrey’s 

preexisting cervical complaints and limitations freed the Board to apply its judgment 

in favor of assigning weight to only Dr. Gelman’s opinions. As a result, the IAB

committed no error of law when it declined to find any degree of permanent 

impairment related to the accident.

54

 While the Court may have reached a different 

conclusion under the facts of this case, the Board’s decision was also based upon 

substantial evidence, and was not an abuse of discretion. 

NOW THERFORE, for the reasons above, the Board’s decision in this 

matter must be AFFIRMED.

IT IS SO ORDERED.

/s/ Jeffrey J Clark

 Resident Judge

cc: Walt F. Schmittinger, Esquire

Andre M. Lukashunas, Esquire

Megan E. Traynor, Esquire

Industrial Accident Board

Prothonotary

53 Bedwell v. A&P Tea Co., 1988 WL 102986, at *2 (Del. Super. Sept. 28, 1988); See also Whaley

v. Shellady, Inc., 161 A.2d 422, 423–24 (Del. 1960) (“The credibility of witnesses is usually a 

question for the finders of fact. Even uncontradicted evidence need not necessarily be accepted as 

true, where there is evidence or circumstances from which a contrary inference may be drawn.”). 

54 See Shipmon v. State, 275 A.3d 755, 2022 WL 984396, at *3 (Del. Apr. 1, 2022) (TABLE) (“the 

Board is not required to, and should not, make a determination that a permanent partial impairment 

is of a certain degree when there is no evidence in the record to support that finding.”).