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. INTRO DUCTION Kenneth English appeals the April 27, 2015 d ecision from the Industrial Accident Board (the “Board”) denying his Petition to Determine Additi onal Compensation Due. 1 In its d ecis ion, the Board found that Mr. English sustained no
more tha n 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 e xpert, 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 constitute s 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 I ndustrial Accident Board’s Decision (Apr. 27, 2015).

2 Appel lant’s Opening Br. 11

.
3 Employer’s Answering Br. 25

. 2II. 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 , wh ich 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, b ased on Dr. Rodger’s recommendation , Mr. English, through counsel, filed a Petition to Determine Additiona l Compensation Due on October 16, 2014. About a month prior to the hearing date, Reed Trucking made a settlement offer of eight percent, which M r. English rejected. Accordingly , on

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

.
5 Id

.
6 Id

. at 48

. 3April 2, 2015, a hearing officer and two Board members he ld an administra tive hearing t o de termine 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 shoulder s
. 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 driv er 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

.

4Mr. En g l ish’s Medical Expert Dr. Rodgers testified that he is board certified in occupational medicine. 12 During hi s 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

D uring 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 AM A Guidelines Fifth Edition

to rate Mr. English’s impairment. 17 Dr. Rodgers agreed that the use of the AMA Guidelines is importa nt because the AMA Guidelines provide “the only standard
that exists out there. . . . for calculati ng 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.

5use.” 19 When later responding to the Board’s ques tions, 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 u nder the Fifth Edition, unlike the Sixth, values are combined for determining upper extremity impairment. 22 The first value used is based on ra nge 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 a s 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 gre ater or less er 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

.

6range of motion. 25 Dr. Rodgers also acknowledged that, although not r equired, the
Fifth Edition suggest s 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 s houlder to the injured shoulder

– correspond s
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

.

7impairment, he looked at Mr. English’s symptoms through bo th 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, h e “determined that the range of motion methodology would be the best and most appropriate method to rate Mr. English

. ” 35 Fo r Mr. English’s left shoulder

– the uninjured shoulder

– based on the numbers calculated for forward flexion, abduction, rotati on, 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 comput ed 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

.

8more 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, t he 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 f ive 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 percen t impairment rating because it

wa s 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

.

9rating under the Fifth Edit ion

. 45 That is so, because Dr. Rodgers’ range s 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 fo und that Mr. English “sustained a 5% permanent partial impairme nt 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

. 10loss 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 o ther factors.” 53

III. STAND A RD 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 record 54 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 th e 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. Chr y sler 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)).
11here, Reed Tru cking, 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 significan t 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 , t he 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 evid ence to support the finding, may the Court overturn the Board’s decision. 62

57 Burmudez v. PTFE Compounds, Inc. , 2006 W L 2382793, at *3 (Del. Super

. Ct. Aug. 16, 2006).

58 Olney , 425 A.2d at 614.

59 Burmudez , 2006 WL 2382793, at *3 (citing D EL

. C ODE A NN

. 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 , 2 88 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 W L 985114, at *2 (Del. Super. Ct. Aug. 6, 2001).

12On 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 t o a
deter mination 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 Mo reover, 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.

13this matter.” 66 Reed Trucking also suggests that the Board’s “Sum mary of
Evidence” section of its decision address ed the physical examination that wa s 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 tod ay, 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 C ourt, 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 expert 70 and t he
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).

14findings 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 ”
support ing the Board’s decision

. 72

T he Board heard from Dr. Rodgers and Dr. Gelman. The outcome turned on which expert ’s opinion the Boa rd credited. The Board accepted Dr. Gelman’s opinion that the proper method for determining impairment was under the AMA
Guideline s, Sixth Edition and under that e dition, 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, t he Board noted that the Sixth Edition

71 See Cle ments , 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

.

15specifically listed the type of surgery and injury Mr. English had , while the F ifth
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 “ a ffect his work or activities .” 76 Accordingly, t he Court is satisfied that the Board based its conclusion on factual findings that were supported by substantial evidence

. VI. CONCLU SION 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. Wallac e_______ Paul R. Wallace, Judge

Original to Prothonotary
cc: All counsel via File & Serve

75 Id

.
76 Id

. 16