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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

BARRY MULLINS (DECEASED),

Claimant-Below,

 Appellant,

v.

CITY OF WILMINGTON,

Employer-Below, 

 Appellee.

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) C.A. No. N23A-01-004 CLS

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Date Submitted: May 25, 2023

Date Decided: August 18, 2023

Upon Appellant’s Appeal from the Order of the Industrial Accident Board.

AFFIRMED.

ORDER

Walt F. Schmittinger, Esquire, and Gary E. Junge, Esquire, Schmittinger & 

Rodriguez, P.A., Dover, Delaware, 19903, Attorney for Claimant BelowAppellant. 

Nicholas E. Bittner, Esquire, Heckler & Fabrizzio, Wilmington, Delaware, 19899, 

Attorney for Employer-Below/Appellee. 

SCOTT, J.
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INTRODUCTION

Before this Court is Appellant Barry Mullins’ (“Claimant”) appeal from the 

decision of the Industrial Accident Board (“Board”). The Court has reviewed the

parties’ submissions. For the following reasons, the Board’s decision is 

AFFIRMED.

BACKGROUND

The Claimant-Below/Appellant, Barry Mullins (deceased), (hereinafter

“Claimant”), was diagnosed with ocular melanoma in 2010 and passed away on

April 19, 2021. Claimant’s widow, Melissa Mullins, (hereinafter “Mrs. Mullins”)

filed a Petition with the Industrial Accident Board (hereinafter the “Board”) on April

22, 2022, seeking workers’ compensation survivor benefits, based upon the City of

Wilmington Pension Code (hereinafter the “Code”).

On December 8, 2022, a Hearing before the Board took place. Mrs. Mullins

testified on behalf of Claimant. She testified it was her understanding the disability

pension would be an untaxable benefit. She was allegedly unaware about any

paperwork completed in the April 2021 timeframe, including an April 16, 2021,

letter where information was completed with the intention to apply for a disability 

pension as per the Code. The City of Wilmington (hereinafter the “Employer”) 

called Bruno Battaglia (hereinafter “Mr. Battaglia”) to testify, and it also relied upon 

the deposition testimony of Dr. John Parkerson. Mr. Battaglia testified he does not 
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have any say or input in disability pensions in his capacity as it relates to workers’

compensation matters. Disability pensions are completely separate from whether the 

Employer approves a workers’ compensation claim. Further, the Code is not even 

considered when assessing the validity of an alleged workers’ compensation claim.

Mr. Battaglia stated he was not aware of the City ever accepting or being instructed 

to accept a workers’ compensation claim on the basis of the Code. Usually when 

alleging a workers’ compensation claim, an employee will notify the City

Dispensary if the injury is alleged to be work related, and the Dispensary then starts 

an investigation.

As for Claimant’s workers’ compensation claim, the Employer was not made

aware he was seeking such benefits until the Petition was filed. Mr. Battaglia also

testified the April 14, 2021, letter relating to a disability pension would not trigger

anything leading Claimant to believe he is entitled to workers’ compensation

benefits. A City employee can receive a service-related disability pension without

having a corresponding workers’ compensation claim. Lastly, he confirmed the

Code only applies to pensions, and not to workers’ compensation claims.

Dr. Parkerson testified via deposition on behalf of the Employer. Claimant

had a tumor of his eye that spread to his liver, and the progression of the tumor was

the ultimate cause of his demise. Dr. Parkerson was not able to identify any scientific

or medical studies that correlate employment as a police officer with development 
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of ocular melanoma. A review of medical literature did not show anything that 

mentioned police officers having increased risk of ocular melanoma. Dr. Parkerson 

testified to a case study regarding firefighters in the United States; this study was 

relevant to the case at hand, because when considering causation, one looks at other 

groups of people that may be similarly affected. The study involves 30,000 

firefighters and focused on incidence of cancer, and yet not a single case of ocular 

melanoma was identified.

Dr. Parkerson also testified when looking at scientific studies which document 

correlation between occupation and ocular melanoma, there was no mention of any 

police officers with ocular melanoma. Dr. Parkerson concluded Claimant’s work as 

a police officer did not place him at a greater risk than the general public for 

developing ocular melanoma. He did not believe Claimant’s cause of death was 

related to the employment as a police officer. He also testified he never saw a record 

from a treating physician or anyone else which related the condition to his 

employment as a police officer.

The Board issued a Decision on December 30, 2022 (hereinafter the

“Decision”). The Board found Claimant failed to prove entitlement to workers’

compensation benefits in relation to his death from ocular melanoma, the Board

discussed and considered Claimant’s argument, in which he contended the City’s 

decision to classify his pension as a disability pension versus a regular pension was 
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an admission the ocular melanoma was causally related to his work as a police 

officer. The Board found Claimant did not offer any medical testimony 

demonstrating an actual relationship between his cancer and his work. While 

Claimant argued the Employer is estopped from challenging the causal relationship 

in the pending workers’ compensation claim, due to the decision made under the 

Code, the Board found this unavailing. The Board explicitly found Claimant failed 

to prove a causal relationship between the ocular melanoma that led to his death and 

his work as a police officer. The Board also found the City’s decision to grant a 

disability pension to Mr. Mullins did not preclude the Employer from arguing in a 

workers’ compensation case that the cancer was not related to Mr. Mullins’ work as 

a police officer. The Board also noted there are likely reasons for not challenging a 

disability pension, which are unrelated to whether the condition was actually related 

to the employment. The Board concluded by ruling Claimant failed to prove 

entitlement to workers’ compensation benefits in relation to his death from ocular

melanoma while employed as a City police officer.

Following the Board’s Decision, on January 25, 2023, Claimant filed the 

instant appeal, challenging the Board’s Decision as to its finding of Claimant’s 

failure to prove entitlement to workers’ compensation benefits due to the ocular 

melanoma. Claimant argues the Board erred by not giving weight to the Employer’s 

decision to award and subsequently pay disability pension based on the “unrebutted 
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presumption that the ocular cancer was an injury incurred in the line of duty” and 

the Board erred by relying on assumptions regarding the Employer’s rationale for 

awarding a disability pension.

STANDARD OF REVIEW

On appeal from the Industrial Accident Board, the Superior Court must 

determine if the Board's factual findings are supported by substantial evidence in the 

record and free from legal error.1 In reviewing the actions of the agency, the Court 

is required “to search the entire record to determine whether, on the basis of all the 

testimony and exhibits before the agency, it could fairly and reasonably reach the 

conclusion that it did.”2 The Court does not “weigh evidence, determine questions 

of credibility or make its own factual evidence findings.”3 When a discretionary 

ruling of the Board is appealed, the Court’s scope of review is “limited to whether 

the Board abused its discretion.”4 The Court reviews the agency's legal 

determinations de novo.

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1 Bedwell v. Brandywine Carpet Cleaners, 684 A.2d 302, 304 (Del. Super. 1996) 

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

2 Nat'l Cash Register v. Riner, 424 A.2d 669, 674–75 (Del.Super.1980).

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Johnson v. Chrysler Corp., 213 A.2d 64, 67 (Del.1965).

4 Funk v. Unemployment Ins. Appeal Bd., Del.Supr., 591 A.2d 222, 225 (1991).

5 Roos Foods v. Guardado, 152 A.3d 114, 118 (Del. 2016); Munyan v. Daimler 

Chrysler Corp., 909 A.2d 133, 136 (Del. 2006).
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DISCUSSION

The main issue before this Court is whether the Board erred as a matter of law 

in not considering by not giving weight to the Employer’s decision to award and 

subsequently pay disability pension in this matter involving the Worker’s 

Compensation Act. Claimant cites Hirneisen v. Champlain Cable Corp.

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as support 

in this argument. In Hirneisen, it was not disputed the claimant’s death was related 

to his employment – specifically, exposure to asbestos.7 The sole dispute was 

whether benefits to the surviving spouse were wage replacement benefits or if they 

were available even when the claimant was not working or earning wages at the time 

of death.8 That issue does not relate to whether a pension determination is binding 

to satisfy causation under the Workers’ Compensation Act.

The most relevant decision was a prior Board Decision, Armstead v. City of 

Wilmington9. Armstead explains: “Employer’s Pension Code does not set the legal 

standard for causation that this Board must follow[.]”10 In this case, the Board agreed 

with the reasoning in Armstead, finding Delaware has not enacted a legal 

presumption of causation involving terminal cancers. Instead, the Employer’s 

decision to “[enact] such a rebuttable presumption in its pension code reflects a 

6 892 A.2d 1056 (Del. 2006).

7 See id. at 1058.

8 See id.

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IAB No. 1485578 (May 6, 2021).

10 Id., at *27.
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contractual-type arrangement between the City and its police officers that applies to 

pension classification.”

The Board’s comment in Armstead about the Code not meeting the standard

set forth in the Workers’ Compensation Act mirrors Jarman v. Willow Grove 

Meats.

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 In Jarman, this Court supported the Board’s refusal to consider evidence

from the Social Security Administration in deciding a question of total disability

because Social Security used a different standard for deciding disability than the 

standard used by the Board, the Board was free to disregard same.12 This mirrors the 

Board’s rationale here in deciding not to apply the Code to a finding of causation 

under the Act. Establishing causation of a work-related occupational disease for 

purposes of receiving workers’ compensation benefits requires evidence “the 

employer’s working conditions produced the ailment as a natural incident of the 

employee’s occupation in such a manner as to attach to that occupation a hazard 

distinct from and greater than the hazard attending employment in general.”13

Anything falling short of this standard fails to satisfy the legal requirements of 

causation under the Act. As such, there was no legal error in the Board’s decision to 

not apply causation from the Code to support causation under the Act. 

11 1994 WL 146031 (Del. Super. Mar. 30, 1994), aff’d 650 A.2d 1306, 1994 WL 

525089 (Del. Sept. 16, 1994).

12 Id. at *8. 

13 Anderson v. General Motors Corp., 442 A.2d 1359, 1361 (Del. 1982). 
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Secondarily, Claimant argues the Board erred by relying on assumptions 

regarding the Employer’s rationale for awarding a disability pension. This argument 

stems from the Board’s comment that “Chief Tracy cited the presumption provided 

by the City pension code in awarding the disability pension, but he did not indicate 

whether the City attempted to rebut the causation presumption or considered any 

medical evidence in making the pension decision.” The footnote in connection with 

this comment mentioned that the City may not have any motivation to deny a 

disability pension in this situation and the City may have chosen not to challenge the 

presumption so Mrs. Mullins could receive a tax benefit, not because of the actual 

causal relationship between the injury and Mr. Mullins’ job. Such comment and 

footnote served as nothing more than an explanation that the workers’ compensation 

act standard is different than that of the pension decision. There is nothing to suggest 

the pension decision should be considered when the Board determined the issue 

before, in fact, it suggests the opposite: that it should not be taken into account, 

which was the outcome. As such, there is no error of law associated with the Board’s 

comment. 
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CONCLUSION

For the foregoing reasons, the Board’s decision is AFFIRMED. 

/s/ Calvin L. Scott

Judge Calvin L. Scott, Jr.