IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

GENESIS HEALTHCARE : SERVICES, :

: Appellant, : K20A

- 04

- 003 JJC

:

v. :

: OTASIA CEPHAS, :

: Appellee. :

ORDER

Submitted: January 21, 2021
Decided: March 1 2

, 2021

Upon Consideration of an Appeal from the Industrial Accident Board
REMANDED

AND NOW TO WIT, this 1 2 th day of March 2021, upon consideration of

the record and the briefing by the parties, IT APPEARS THAT :

1. Appellant Genesis Healthcare Services (hereinafter “Genesis”) appeals a

decision that the Industrial Accident Board (hereinafter “ Board” or “IAB”) issued

on March 1 1 , 2020. In the IAB’s decision, it granted Appellee Otasia Cephas ’

petition to determine additional compensation due. The Board then ordered Genesis

to pay for lower back treatment that Dr. Scott Roberts provided to Ms. Cephas

.
2. As backgr ound

, Ms. Cephas worked for Genesis as a certified nursing

assistant

. On February 16, 20 0 8, she suffered a compensable work injury to her

lower back. W h en she assisted a patient to her room, the patient fell and caused Ms.

Cephas to fall with her and injure her back

. Thereafter, she received conservative2

treatment from the time of the injury until she underwent a lower back surgery in

January 2016. The re was no dispute that the work accident necessitated her low

back treatment from 2008 through the 2016 surgery.

3. Ms. Cephas’s initial treatment with Dr. Roberts spanned from 2013

through her 2016 surgery . After that surgery, she resumed treatm ent with Dr.

Roberts when either new back pain emerged or her previous pain reemerged

(her einafter, the di sputed condition referenced as “ post

- 2016 back pain”)

. The post

2016 back pain came from a congenital condition that preexisted her work injury.

Moreover, that congenital condition existed at a level in her spine below the lowest

level addressed by her 2016 surgery

.
4. Important t o this appeal, Genesis nevertheless paid some of Dr. Roberts ’

post

- 2016 b ills

. It also paid the facility and medication charges that accompanied

some of Dr. Roberts’ post

- 2016 treatment. Genesis stopped paying the disputed

bills, in large part , after August 3, 2018. Her unpaid bills generate the current

dispute.

5. In the IAB’s decision, it focused on whether the post

- 2016 back treatment

was related to the work accident. It correctly recognized that the work injury could

have also been a cause of Ms. Cephas’ treatment notwithstanding a n undisputedly

concurrent congenital c ause. The following record evidence , viewed in the light

most favorable to Ms. Cephas, addressed wh ether the work injury constituted a “but

for” cause of the disputed treatment: (1) Dr. Roberts testi fied that he treated Ms.

Cephas for back pain before and after the 2016 surgery ; (2) but, Dr. Roberts could

not opine whether hi s post

- 2 01 6 treatment was related to the work injury ; ( 3 ) Ms.

Cephas test ified that she coul d perform certified nursing assistant duties prior to her

2008 injury , but could not perform them afterward because of her back pain ; and ( 4 )

Genesis’ carrier paid a significant number of bills for her post

- 2016 treatment, but

declined to pay others.3

6. In its O rder, the IAB referred to the correct standard : that is, but for the

2008 injury, would the disputed post

- 2016 treatment have been necessary ? 1 It then

found t he treatment to be related for one principal reason: the carrier pa id many of

Dr. Roberts ’ post

- 2016 bills and other post

- 2016 bills. 2 The Board found those

payments to demonstrate Genesis’ acceptance of responsibility for her treatment. 3

7. Genesis now appeals the IAB’s decision. It contends that because Dr.

Roberts did not testify that the work injury necessitated Ms. Cephas’ treatment, she

failed to meet her burden at the hearing. No other expert other than Dr. Roberts

testified at the hearing.

8. In response, Ms. Cephas argues that there is substantial evidence in the

record to support the Board’s finding that she met her burden

. She identifies

evidence that includes (1) the carrier ’ s payment s , (2) and an earlier

acknowledgement before the Board that Ms. Cephas suffered a low back injury that

required the 2016 low back surgery.

9. This Court’s appellate review of the IAB’s factual findings is limited to

determining whether the Board’s decision i s supported by substantial evidence and

is free from legal error

. 4 Substantial evidence means “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” 5 On appeal, the

Court views the facts in the light most favora ble to the prevailing party below. 6

Moreover, the Court does not weigh the evidence, determine questions of credibility

1 Cephas v. Genesis Healthcare Services, No. 1316891, at *9 (Del. IAB March 11, 2020) [hereinafter “IAB Order”].

2 Id. at * 12.

3 Id.

4 Bullock v. K

- Mart Corp ., 1995 WL 339025, at *2 (Del. Super. Ct. May 5, 1995) (citing General

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

5 Olney v. Cooch , 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Fed. Mar. Comm’n , 383 U.S. 607, 620 (1966)).

6 Chudnofsky v. Edwards , 208 A.2d 516, 518 (Del. 1965) (citing Turner v. Vineyard , 80 A.2d 177, 179 (Del. 1951)).4

or make its own factual findings. 7 Absent an error of law, which would be reviewed

de novo , a decision of the IAB supported by substantial evidence will be upheld

unless the Board abused its discretion. 8 The Board abuses its discretion when its

decision exceeds the bounds of reason in view of the circumstances. 9

10. At the outset, the Board recognized the correct causation standard

. Namely, it applied the “but for” standard articulated in Reese v. Home Budget

Center

. 10 The central issue in this appeal, however, turns on whether the Board erred

by applying an incorrect standard when finding Genesis to have enter ed an implied

agreement to compensate Ms. Cephas

. This potential error of law impacts whether

Genesis’ payment of some of the post

- 2016 bill s constitute s credible evidence of

compensability. Because Dr. Roberts testified that he could not relate the post

- 2016

treatment to the work accident, how to treat those payments will impact the Court’s

substantial evidence review.

11. T he IAB explained its finding that Genesis’ payment of the bills

demonstrated that they were compensable as follows:

[t] here is not evidence that Employer/carrier’s partial payments of Dr.
Roberts’ treatment was simple inadvertence or was made under a feeling of compulsion.

. . . Furthermore, there is no evidence that the payment of
Claimant’s low back treatment was . . . [a] gift flowing merely from a generosity of spirits by a carrier . . .. Thus, the board finds that Employer/carrier’s payment of Claimant’s low back treatment

. . . is indicative of its acceptance of that treatment as compensable. . . . [T]he Board concludes that the evidence supports a finding that Claimant’s low back treatment with Dr. Roberts, including any unpaid charges, is compensable. 11

7 Bullock , 1995 WL 339025, at *2 (citing Johnson v. Chrysler Corp ., 213 A.2d 64, 66 (Del. 1965)).

8 Hoffecker v. Lexus of Wilmington , 2012 WL 341714, at *1 (Del. Feb. 1, 2012) (citation omitted).

9 Id.

10 Reese v. Home Budget Center , 619 A.2d 907, 910 (Del. 1992) ( describing the standard for
causation in a workers’ compensation claim involving a claimant’s preexisting injury as asking
whether the injury would not have occurred but for the accident ).

11 IAB Order at * 12 (emphasis added).5

Th e above

- mentioned reasoning is unclea r

. The Court is unable to determine

whether it inadvertently omit s language , contradic ts itself, or demonstra tes a

misunderstanding of the applicable standard.

12. Delaware mandatory authority provides the standard that the Board must

consider when it decides wh en an employer’s payment of bills constitutes an

acceptance of responsibility

. Examining three Delaware Supreme Court decisions

illustrate the law’s evolution regarding this issu e. Their holdings culminate with the

rule that requires this remand.

13. First, i n its decision in Starun v. All Am. Engineering Co

. 12 , the Delaware

Supreme Court e xamined a carrier ’s paymen t of medical bills in a significantly

different context than the one in Ms. Cephas’ case

. There

, the Court held that an

implied agreement to pay compensation extended the statute of limitations in a
compensation claim from two to five years

. 13 Section 2361 (a) of Title 19 of the

Delaware Code provides a two

- year statute of limitations for presenting claims for

workers’ compensati on benefits

. 14 W here a carrier and a claimant agree that

benefits are payable, however, the statute of limitations extends to five years from

the date of the last payment. 15 T he Court in Starun held that if an employer ’s

payment of benefits was not gratuitous, the carrier’s payment created an implied

agreement to continue to pay benefits . That finding, in turn, triggered the lengthened

statute of limitation s o f 19 Del. C. § 2361(b)

. 16

12 350 A.2d 765 (Del. 1978).

13 Id. at 76 8

. 14 19 Del.C . § 2361(a).

15 See 19 Del.C. § 2361 (b) (providing that “where payments have been made . . . under an agreement approved by the Board or by an award of the Board, no statute of limitations shall take effect until the expiration of 5 years from the time of the making of the last payment[.]”)

16 S tarun , 350 A.2d at 768; s ee a lso McCarnan v. New Castle County , 521 A.2d 611, 613 (Del. 1987) (exa mining the issue of an implied agreement to pay benefits and finding an implied
agreement to pay benefits to extend only the statute of limitations pursuant to 19 Del. C. §2361(b))6

14. Next, in Tenaglia

- Evans v. State Francis Hosp ital

, 17 the Delaware

Supreme Court e x panded this approach from the procedural statute of limitations

context to the substantive context in a substantial evidence review. There , the Court

affirmed an IAB finding that a carrier’s payment of bills could not be considered

credible evidence that supported compensability

. 18 T he record in that case

demonstrated that the carrier had mistakenly paid a substantial number of bills

submitted on behalf of the claimant. 19 Give n th at mistake, the Court held that the

carrier did not pay the bills under “ compulsion.” 20 Absent that finding, the Board

could not consider the payment of bills to have supported compensability.

15. Finally, in Andreason v. Royal Pest Control

, 21 the Delaware Supreme

Court further explained why it exten ded this reasoning to the substantive review of

evidence

. It named the approach the “feeling of compulsion” doctrine. Pursuant to

that doctrine, the IAB must find that an employer made payments under a feeling of

compulsion before it may consider them to be credible evidence of compensability. 22

It directly follows that because a payment made without compulsion does not qualify

as credible evidence

, such payment cannot be considered in a court’s s ubstantial

evidence review on appeal. Notably, in other contexts, a finder of fact would be free

to draw an inference regarding whether a part y’s conduct , including payments made

toward an alleged obligation, constitute an admission of responsibility

. Regardless,

and New Castle County v. Goodman

, 461 A.2d 1012 , 1014 (Del. 1983) (also focusing only up on the applicable statute of limitations issue when examining the “feeling of compulsion” issue).

17 2006 WL 3590385 (Del. Dec. 11, 2006).

18 Id. at *3.

19 Id.

20 Id.

21 73 A.3d 115 (Del. 2013).

22 Id. at 119.7

t here is common law rule that limits what constitute s credible evidence of

compensability in this IAB

- specific context

. 23

16. Here, the Board found that Genesis’ payments of some of Ms. Cephas’

b ills meant Genesis accepted the disputed treatment to be compensable. 24

Consistent with those observations , the IAB also found that (1) the payments were

not gifts , and (2) they were not based upon simple inadvertence. 25 On the other

hand , the IAB’s O rder provides that “ [t]here is no evidence that [Genesis’] partial

payments of Dr. Roberts’ treatment

. . . [were] made under a feeling of

compulsion .” 26 It would be error for the Board to find an implied agreement to pay,

which in turn demonstrated an acceptance of responsibility, absent a finding of

compulsion. Because the Board ’s Order demonstrates that it made other findings

con sistent with compulsion, however, the Court requires further explanation from

the Board.

17. Pursuant to contr olling law, an employer’s payment of bills without a

feeling of compulsion are eviden tiarily insufficient to support a Board’s

compensability finding. Here

, the evidence regarding these payment s is central

. Accordingly, the IAB must clarify its findings on remand. When doing so, the IAB

shall provide its findings regarding whether Genesis or its carrier made these

payments under a feeling of compulsion

.

23 See id . at 125 (holding (1) that the “feeling of compulsion doctrine ” was not abrogated by 19
Del. C. § 2322 (h)

, (2) applying the doctrine during a substantial evidence review, and (3) affirming the Board’s finding that future bills were not compensable because other bills were paid without a feeling of compulsion ). Ms. Cephas argues, in part, that the failure of Genes is to take advantage of the mechanism present in 19 Del. C. § 2322 (h) , that permits a carrier to identify its payments as being without prejudice to dispute future payments, provides further support for the Board’s finding of an implied agreement. The De laware Supreme Court’s holding in Andreason , however,
would make that subsection irrelevant when the Board finds no compulsion.

24 IAB Order at * 12.

25 Id.

26 Id. (emphasis added).8

WHEREFORE

, for the foregoing reasons, the matter is REMANDED with

direction that

, within sixty days of the date of this Order, the IAB provide the Court

with a supplemental order clarifying its findings regarding the issue of compulsion

and implied acceptance of re sponsi bility. Jurisdiction is retained.

IT IS SO ORDERED.

/s/Jeffrey J Clark Judge

cc: Na ncy Chrissinger Cobb, Esquire Walt Schmittinger, Esquire
Industrial Accident Board Prothonotary