IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KENNETH ENGLISH, )

Claimant-Appellant, )

)

v. ) C.A. N15A-05-007 PRW

)

REED TRUCKING, )

Employer-Appellee. )

)

Submitted: December 30, 2015

Decided: March 24, 2016

Upon Appeal from the Decision of the Industrial Accident Board.

AFFIRMED.

OPINION AND ORDER

Gary S. Nitsche, Esquire and Samuel D. Pratcher, Esquire, Weik, Nitsche, 

Dougherty & Galbraith, Wilmington, Delaware, Attorneys for Claimant-Appellant 

Kenneth English.

Joseph Andrews, Esquire, Hoffman Andrews Law Group, Dover, Delaware, 

Attorney for Employer-Appellee Reed Trucking.

WALLACE, J.
I. INTRODUCTION

Kenneth English appeals the April 27, 2015 decision from the Industrial 

Accident Board (the “Board”) denying his Petition to Determine Additional 

Compensation Due.1

 In its decision, the Board found that Mr. English sustained no 

more than five percent impairment of his right upper extremity. Mr. English 

complains the Board’s decision is not supported by substantial evidence because 

“the Board erred in finding that Claimant had an eight percent impairment to his 

uninjured shoulder.”2

 Essentially, Mr. English argues that the Board erred in 

crediting his employer’s expert, Dr. Andrew Gelman, over the testimony of his 

own expert, Dr. Stephen J. Rodgers. Mr. English’s employer, Reed Trucking,

argues that the Board’s decision to accept “one expert’s testimony over the 

contradictory testimony of another expert constitutes substantial evidence in and of 

itself.”3

 

Because the Board relied on adequate evidence, its decision denying Mr.

English’s October 16, 2014 Petition to Determine Additional Compensation Due is 

hereby AFFIRMED.

1

 Industrial Accident Board’s Decision (Apr. 27, 2015).

2

 Appellant’s Opening Br. 11.

 3

 Employer’s Answering Br. 25.

2

 
II. FACTUAL AND PROCEDURAL BACKGROUND

On August 5, 2013, Mr. English was working as a driver for Reed 

Trucking.4

 While pulling a pallet down to unload his truck, he injured his right 

rotator cuff.5

 He notified Reed Trucking, which acknowledged his injury was

compensable. Reed Trucking paid for Mr. English’s treatment and other benefits, 

including a right rotator cuff repair performed by orthopedic surgeon, Dr. Evan 

Crain, on October 22, 2013.

6

 

In September 2014, Dr. Rodgers evaluated Mr. English. Dr. Rodgers 

concluded Mr. English’s right shoulder permanent impairment was at 13 percent

based on the AMA Guidelines, Fifth Edition. On January 12, 2015, Reed Trucking

had Mr. English evaluated by Dr. Gelman, who determined Mr. English’s

impairment was two percent under the AMA, Fifth Edition or five percent under 

the Sixth Edition. Based on this, Reed Trucking stipulated that Mr. English was 

five percent impaired. 

Nonetheless, based on Dr. Rodger’s recommendation, Mr. English, through 

counsel, filed a Petition to Determine Additional Compensation Due on October 

16, 2014. About a month prior to the hearing date, Reed Trucking made a 

settlement offer of eight percent, which Mr. English rejected. Accordingly, on 

4

 Industrial Accident Board’s Decision at 46 (Apr. 27, 2015).

5

 Id.

6

 Id. at 48.

3

 
April 2, 2015, a hearing officer and two Board members held an administrative 

hearing to determine if Mr. English had an additional impairment above five 

percent. The Board issued its decision denying additional compensation on April 

28, 2015. Mr. English filed a timely appeal.7

APRIL 2, 2015 HEARING 

Mr. English’s Testimony

Mr. English testified on his own behalf. He denied having prior injuries to

either of his shoulders.

8

 Mr. English testified that surgery helped with his right 

shoulder pain and that he only has stiffness and limited range of motion now.9

 He 

also testified he is back to work at this time as a freight driver for UPS; that job

does not require him to lift heavy packages.10 He has had no subsequent injury to 

either shoulder.11

7 19 Del. C. § 2349.

8 Industrial Accident Board Hearing at 46 (Apr. 2, 2015).

9 Id. at 48.

10 Id. at 51, 53.

11 Id. at 49.

4

 
Mr. English’s Medical Expert

Dr. Rodgers testified that he is board certified in occupational medicine.12 

During his September 19, 2014 examination, Mr. English complained of a stiff 

shoulder, limited range of motion, and difficulty throwing, reaching, and rotating.13 

Dr. Rodgers reviewed Mr. English’s history and medical records.14 He also 

thoroughly examined Mr. English, measuring his internal and external rotation.15

During his testimony, Dr. Rodgers also demonstrated to the Board how he 

examined Mr. English’s left shoulder.16

Dr. Rodgers further testified that he used the AMA Guidelines Fifth Edition 

to rate Mr. English’s impairment.17 Dr. Rodgers agreed that the use of the AMA 

Guidelines is important because the AMA Guidelines provide “the only standard 

that exists out there. . . . for calculating impairments.”18 Dr. Rodgers testified that 

he chose to use the Fifth Edition because the Sixth Edition “is still a work in 

progress” and the “diagnosis based estimate method in there is very difficult to 

12 Id. at 6.

13 Id. at 13. 

14 Id. at 8–13.

15 Id. at 15–16.

16 Id. at 17–18.

17 Id. at 26. 

18 Id. at 26.

5

 
use.”19 When later responding to the Board’s questions, Dr. Rodgers revealed that 

the Sixth Edition has been around since 2008 and that he was a contributor to the 

casebook for the Guidelines.20 

Based on Mr. English’s history, medical records, and physical examination, 

Dr. Rodgers concluded that Mr. English’s impairment rating was 13 percent using 

the AMA Guidelines Fifth Edition.21 Dr. Rodgers testified that under the Fifth 

Edition, unlike the Sixth, values are combined for determining upper extremity 

impairment.22 The first value used is based on range of motion and the second 

value is for other conditions, such as surgery.23 Accordingly, Dr. Rodgers rated 

Mr. English’s range of motion impairment as three percent and, using his clinical 

judgment, Dr. Rodgers compared measurable impairment results from analogous

conditions listed in the Guidelines with that of Mr. English’s unlisted condition and 

arrived at a rating of ten percent for the second value.

24 

Dr. Rodgers acknowledged that some people can have a greater or lesser

range of motion – without injury – compared to the AMA Guidelines’ “normal” 

19 Id. at 23.

20 Id. at 42–43.

21 Id. at 16. 

22 Id. at 20. 

23 Id. at 20–22.

24 Id. at 21–22.

6

 
range of motion.25 Dr. Rodgers also acknowledged that, although not required, the 

Fifth Edition suggests that the baseline from a non-injured shoulder be subtracted

when determining permanency.

26 And so, Dr. Rodgers testified that what Dr. 

Gelman did–compare the uninjured shoulder to the injured shoulder–corresponds

with the AMA, Fifth Edition.27 Unlike Dr. Gelman, Dr. Rodgers found no 

impairment or restriction in Mr. English’s left shoulder.28 

Reed Trucking’s Medical Expert

Dr. Gelman, a board certified orthopedic surgeon, testified by deposition.29 

He examined Mr. English on January 12, 2015.30 Mr. English’s primary complaint 

was stiffness and a lack of range of motion in his right shoulder.31 Dr. Gelman 

examined Mr. English’s neck and both upper extremities.32 He measured both 

shoulders’ range of motion.33 Dr. Gelman testified that to determine permanent 

25 Id. at 36.

26 Id. at 23. 

27 Id. at 36-37.

28 Id. at 17–19, 40. 

29 Dr. Gelman Dep. Tr. 5. 

30 Id. at 7.

31 Id. at 9.

32 Id. at 10.

33 Id. at 10–11. 

7

 
impairment, he looked at Mr. English’s symptoms through both the Fifth and Sixth 

Editions of the AMA Guidelines. 

Dr. Gelman testified that according to the AMA Guidelines, his “role would 

be to identify what factors or parameters would best apply with regards to 

addressing impairment.”34 Using the Fifth Edition, he “determined that the range 

of motion methodology would be the best and most appropriate method to rate Mr. 

English.”35 For Mr. English’s left shoulder–the uninjured shoulder–based on the 

numbers calculated for forward flexion, abduction, rotation, extension, and 

adduction, Dr. Gelman determined Mr. English would have a permanency of eight 

percent under the AMA Guidelines, Fifth Edition.36 Dr. Gelman testified that he 

then “took the ranges of motion [of Mr. English’s right side that he had computed 

and] compared that to his baseline normal left side, [which] yields a two percent 

upper extremity impairment.”37 

Dr. Gelman also determined Mr. English’s impairment under the AMA,

Sixth Edition.

38 Dr. Gelman opined that in Mr. English’s case, the Sixth Edition 

34 Id. at 16.

35 Id. 

36 Id. at 11.

37 Id. at 16.

38 Id. at 18.

8

 
more appropriately addresses Mr. English needs, as the Sixth Edition is “more of a

diagnosis-based method versus a range of motion method.”39 Although more 

complicated, the Sixth Edition “methodology would take into consideration the

dominating factor or pathology.”40 Dr. Gelman testified he considered the rotator 

cuff pathology which was the dominating pathology addressed by Dr. Crain 

surgically on October 22, 2013.

41 Dr. Gelman’s Sixth Edition assessment yielded 

an impairment of five percent.

42

Dr. Gelman agreed that Dr. Rodgers rated his assessments using the AMA 

Guidelines, Fifth Edition.43 But Dr. Gelman testified that he could not explain why 

or how he disagreed with Dr. Rodgers’ 13 percent impairment rating because it 

was unclear to him from Dr. Rodgers’ report what method Dr. Rodgers used to 

reach his impairment rating.44 Dr. Gelman explained, however, that using Dr. 

Rodgers’ range of motion numbers “would equate to [a] three percent” impairment

39 Id. at 19.

40 Id. at 19–20.

41 Id. at 19.

42 Id. at 18.

43 Id. at 26.

44 Id. at 26–27.

9

 
rating under the Fifth Edition.

45 That is so, because Dr. Rodgers’ ranges of motion

were generally better than those taken by Dr. Gelman four months later.

46 

The Board’s Decision

In its April 27, 2015 decision, the Board denied Mr. English’s Petition, 

finding he suffered a five percent permanent impairment to his right shoulder, and 

he was not entitled to receive additional compensation.47 The Board recounted the 

Petition’s procedural history and the hearing testimony. 48 Taking into account the 

doctors’ and Mr. English’s testimony, the Board decided that Dr. Gelman utilized 

the appropriate method to rate Mr. English’s impairment. 

“The Board accept[ed] Dr. Gelman’s opinion as more credible and reliable 

than Dr. Rodger’s opinion in this case.”49 The Board found that Mr. English 

“sustained a 5% permanent partial impairment of the right upper extremity” based 

on the AMA Guidelines Sixth Edition.50 The Board also found that Dr. Rodgers’ 

13 percent rating “overstates and does not accurately reflect [Mr. English’s] true 

45 Id. at 27.

46 Id. at 25.

47 Industrial Accident Board’s Decision (Apr. 27, 2015).

48 Id. at 2–12.

49 Id. at 13. 

50 Id. 

10

 
loss of use.”51 For example, ten percent of Dr. Rodgers’ rating “was based on the 

use of an analogous procedure listed in the Fifth Edition” since Mr. English’s 

specific surgical procedure was not listed.52 Conversely, Dr. Gelman’s rating 

under the Sixth Edition “was based specifically on the type of injury [Mr. English] 

sustained and adjusted based on the loss of range of motion and other factors.”53 

III. STANDARD OF REVIEW

This Court has repeatedly emphasized the limited extent of its appellate 

review of the Industrial Accident Board’s decisions: the Court must determine if 

the Board’s factual findings are supported by substantial evidence in the record54

and whether its decision was legally correct.55

“Substantial evidence” is “such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.”56 The Court must, therefore, 

review the record to determine if the evidence is legally adequate – i.e., includes 

some substantial evidence – to support the Board’s factual findings. In doing so 

the Court evaluates the record, in the light most favorable to the prevailing party, 

51 Id. 

52 Id.

53 Id.

54 Histed v. E.I. duPont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993).

55 Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965). 

56 Histed, 621 A.2d at 342 (citing Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)).

11

 
here, Reed Trucking, to determine whether substantial evidence existed to 

reasonably support the Board’s conclusion.57 The Court does not “weigh evidence, 

determine questions of credibility or make its own factual findings.”58 Rather, the 

Court must afford “a significant degree of deference to the Board’s factual 

conclusions and its application of those conclusions to the appropriate legal 

standards.”59 For it is the Board, not the Court, that is responsible for deciding 

which medical expert is more credible.60 And so, the Court does not parse the 

expert’s testimony in order to reach its own decision about which expert is more 

convincing;61 only if the Court finds that the Board’s determination on expert 

witness credibility is unsupported by some substantial competent evidence to 

support the finding, may the Court overturn the Board’s decision.62

57 Burmudez v. PTFE Compounds, Inc., 2006 WL 2382793, at *3 (Del. Super. Ct. Aug. 16, 

2006).

58 Olney, 425 A.2d at 614.

59 Burmudez, 2006 WL 2382793, at *3 (citing DEL. CODE ANN. tit. 29 § 1142(d)).

60 See Clements v. Diamond State Port. Corp., 831 A.2d 870, 877-78 (Del. 2003); see also,

Coleman v. Dep’t of Labor, 288 A.2d 285, 287 (Del. Super. Ct. 1972). 

61 Clements, 831 A.2d at 878; Fieni v. Catholic Health East, 2014 WL 2444795, at *2 (Del. 

Super. Ct. Apr. 29, 2014).

62 See Clements, 831 A.2d at 877–78; see also, Carey v. H & H Maintenance, 2001 WL 

985114, at *2 (Del. Super. Ct. Aug. 6, 2001). 

12

 
On appeal, the Court reviews legal issues de novo.

63 Mr. English makes no 

claim here that any questions of law arise from the Board’s decision.

IV. PARTIES’ CONTENTIONS

Mr. English’s Argument

On appeal, Mr. English argues he is 13 percent impaired and the Board’s 

finding that he has an eight percent impairment baseline is unreasonable and 

unsupported. He argues that the Board’s decision “does not state how it came to a 

determination that [Mr. English] had an eight percent impairment to his uninjured 

shoulder” and “fails to address that a physical examination was done at the 

hearing.”64 At bottom, Mr. English argues that the Board erroneously accepted Dr. 

Gelman’s expert testimony over that of Dr. Rodgers. 

Reed Trucking’s Argument

In response, Reed Trucking argues that the Board’s acceptance of one 

expert’s testimony over the contrary opinion testimony of another meets the 

“substantial evidence” standard.65 Moreover, Reed Trucking says Mr. English 

stipulated that Dr. Gelman was qualified to rate Mr. English’s impairment, thereby 

allowing the Board to “choose to rely upon Dr. Gelman instead of Dr. Rodgers in 

63 Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009).

64 Appellant’s Opening Br. 11.

65 Employer’s Answering Br. 25. 

13

 
this matter.”66 Reed Trucking also suggests that the Board’s “Summary of 

Evidence” section of its decision addressed the physical examination that was done 

at the hearing. And that Dr. Rodgers “admitted that he did not have any way to 

measure Claimant’s ranges of motion at the hearing [and] therefore, could only 

testify that there were ‘minimal deficits today, as there were when I measured 

it.’”67

V. DISCUSSION

The Court’s role is limited to determining whether there was substantial 

evidence supporting the Board’s findings and whether the decision was legally 

correct.68 The Board, not the Court, is responsible for deciding which medical 

expert is more believable on a given point.

69 The Board is entitled to accept the 

testimony of one medical expert over the testimony of another expert70 and the 

Board certainly does not err by accepting one expert’s opinion over that of the 

other if the Board “set[s] forth the factual basis for its conclusion” and the “factual 

66 Id. at 26.

67 Id. at 23.

68 Johnson, 213 A.2d at 66.

69 Coleman, 288 A.2d at 287.

70 Standard Distrib. Co. v. Nally, 630 A.2d 640, 646 (Del. 1993).

14

 
findings are supported by the record.”71 “The medical testimony of one doctor, 

while not in agreement with that of [another], [i]s sufficient competent evidence”

supporting the Board’s decision.

72

The Board heard from Dr. Rodgers and Dr. Gelman. The outcome turned on 

which expert’s opinion the Board credited. The Board accepted Dr. Gelman’s 

opinion that the proper method for determining impairment was under the AMA 

Guidelines, Sixth Edition and under that edition, Mr. English had an impairment 

rating of five percent. In its decision, the Board unambiguously stated that: “The 

Board accept[ed] Dr. Gelman’s opinion as more credible and reliable than Dr. 

Rodger’s opinion in this case.”73 

The Board determined that Dr. Gelman’s use of the Sixth Edition was 

appropriate in Mr. English’s case. In its decision, the Board referenced the 

testimony of both experts, the testimony of Mr. English, and articulated why it 

decided to accept Dr. Gelman’s opinion. The Board explained why it found that 

Dr. Rodgers’ 13% rating “overstates and does not accurately reflect [Mr. 

English’s] true loss of use.”74 For example, the Board noted that the Sixth Edition 

71 See Clements, 831 A.2d at 877.

72 Gen. Motors Corp. v. Veasey, 371 A.2d 1074, 1076 (Del. 1977).

73 Industrial Accident Board’s Decision, at 13 (Apr. 27, 2015). 

74 Id. 

15

 
specifically listed the type of surgery and injury Mr. English had, while the Fifth 

Edition did not.75 The Board noted other evidence supporting its conclusion, such 

as: Mr. English’s testimony that his “shoulder is essentially pain free;” he has 

“stiffness and minor loss of motion in several planes of motion;” and other than 

lifting heavy packages, his shoulder does not “affect his work or activities.”76 

Accordingly, the Court is satisfied that the Board based its conclusion on factual 

findings that were supported by substantial evidence. 

VI. CONCLUSION

For the forgoing reasons, the decision of the Industrial Accident Board 

denying Kenneth English’s October 16, 2014 Petition to Determine Additional 

Compensation Due is hereby AFFIRMED.

IT IS SO ORDERED.

/s/ Paul R. Wallace_______ 

Paul R. Wallace, Judge

Original to Prothonotary

cc: All counsel via File & Serve 

75 Id.

76 Id.

16