IN THE SUPERIOR COU R T OF THE STATE OF DELAWARE

MICHAEL PADGETT, : : C.A. No.: S20 A

- 11

- 003 RHR Claimant Below

– Appellant : v. : : R&F METALS, INC

. , : : Employer Below

– Appellee. :

Submitted: March 31, 2021 Decided: June 30, 2021 Upon Consideration of an Appeal of the Decision of the Industrial Accident Board , AFFIRMED

.

ORDER For the following reasons, t he Court affirms the decision of the Industrial Accident Board (“IAB”) in favor of R&F Metals, Inc. (“Employer”):

1. On November 18, 2016 , Michael Padgett (“ Claimant ”) injured his
lower back at work when he lifted a bag of concrete and fell. Claimant has had five
back surgeries since th at accident , the first four of which were either acknowledged to be compensable by Employer or were determined to be compensable by the IAB. The fifth surgery is the subject of this appeal.2

2. Employer filed a Petition for Review in January 2020 alleging that
Claimant could return to work. In March 2020, Claimant filed a Petition to Determine Additional Compensation Due seeking compensability for that then

planned fifth surgery

. Before the IAB d ecided these two petitions , Claimant
underwent the fifth surgery on June 25, 2020.
3. The IAB conducted a hearing on October 15, 2020 . On October 28, 2020, the IAB issued a decision finding that the June 2020 surgery and related medical expenses were not re asonable, necessary, and related to the 2016 work
accident. The IAB also granted Employer’s Petition to Terminate Benefits. 1
4. Claimant appeal s the IAB’s de nial of the Petition to Determine Additional Compensation Due , arguing that the IAB’s decision was n ot supported by substantial evidence . Claimant also argues that the IAB failed to apply the “but

for” standard of causation test

. 5. Pursuant to 29 Del. C. § 10142(a), this Court has jurisdiction over appeals from administrative agencies like the IAB. On appeal , this Court reviews the IAB’s decision to ensure that it is supported by substantial evidence and free from legal error. 2 Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclu sion. ” 3 If there is no error of law, the

1 Claimant d oes not challenge this ruling on appeal

. 2 DiSabatino Bros. v. Wortman , Del. Supr., 453 A.2d 102, 105 (1982). 3 Washington v. Del. Transit Corp. , 226 A.3d 202, 210 (Del. 2020).3

Court reviews for abuse of discretion. The IAB abuses its discretion when its decision has “exceeded the bounds of reason in view of the circumstances.” 4 In this analysis, the Court must give deference to the expe rience and specialized competence of the IAB. 5 “The credibility of the witnesses, the weight of their testimony, and the reasonable inferences to be drawn therefore are for the Board to
determine

. ” 6
6. Relevant to this appeal, t he IAB heard testimony from : Claimant; Dr. Stephen Fedder, the Employer’s medical expert; and Dr. James Zaslavsky, Claimant’s surgeon
. 7 The IAB ’s decision thoroughly summarized all of the
witnesses ’ testimony

. 7. T he IAB concluded that the fifth surgery was not reasonabl y and

necessar ily causally related to the November 2016 work injury. This decision is supported by substantial evidence. The IAB ’s decision turned on the i s sue of credibility: the IAB found Dr. Fedder ’s medical opinion to be persuasive. He

tes tified that he did not see a sufficient “ pain generator ” 8 in Claimant’s lower back

4 Wil l is v. Plastic Materials, Co. , 2003 WL 164292, at *1 (Del. Super. Jan. 13, 2003). 5 Del. Transit Corp. v. Ha milton , 2001 WL 1448239, at *1 (Del. Super. Oct. 31, 2001). 6 Clements v. Diamond State Port Corp. , 831 A.2d 870 (Del. 2003) ( citing Coleman v. Dept. of Labor , 288 A.285, 287 (Del. Super. 1972). 7 Clai mant’s daughter and Tremel Perry, a labor market surveyor, also testified , but their testimony is not relevant to the issues raised on appeal. 8 Industrial Accident Board Decision on Petition to Terminate Disability Benefits and Petition to Determine Additional Compensation Due, Hearing No. 1450795, Oct. 28, 2020 (“IAB Decision” ) at 31.4

and that he had not observe d Claimant respond meaningfully to his fourth surgery, which took place in 2019

. 9 Dr. Fedder pointed to the fact that although Claimant had undergone four surgeries , Claimant’s subjective complaints about pain remained
consistent. 10 Dr. Fedder also noted that Claimant appeared to take a large amount of prescribed opiate pain medication and opined that Claimant should be weaned fr om those medications. 11 Crucially, Dr. Fedder and Dr. Zaslavsky (both of whom examined Claimant after his fourth back surgery and before his fifth) disagreed as to Claimant’s medical presentation: although Dr. Zaslavsky testified that Claimant ’s fifth surgery was necessary to alleviate Claimant’s ongoing pain, Dr. Fedder reported that his examination of Claimant was neurologically normal and o pined that Claimant’s medical dependency on opiates was “driving” his complaints. 12
8. On the other hand, t he IAB specifically found Claimant’s testimony to
be inconsistent , which undermined his credibility. 13 The IAB’s decision noted that
the evidence was un clear as to whether Claimant trusted Dr. Zaslavsky’ s treatment plan , 14 and noted a difference of opinion between Claimant and his doctor about
whether Claimant should be weaned from narcotic medication.

9 Id

. 10 Id

. 11 Id

. 12 Id

. at 14. 13 Id . at 33. 14 Id

.5

9. It is well

- established in Delaware that the IAB ma y choose between conflicting testimony and that its determination of credibility will be given deference by a reviewing court

. 15 Here , the IAB found Dr. Fedder’s testimony credible and Claimant’s testimony not. This Court cannot and will not disturb that finding.
10. Turning to Claimant’s argument that the IAB failed to apply the but

- for standard of causation to Claimant’s claim for benefits, the IAB ex plicitly found, and Claimant acknowledged, that Claimant had been involved in two accidents after his fourth back surgery and prior to his fifth

— one, where he fell after he was attacked by a dog and sustained increased pain in his back as a result , and ano ther, where he was run over by a vehicle and sustained injuries to his leg . The IAB found that these accidents and the injuries sustained as a result were sufficient to break any causal link between Claimant’s 2016 work

- related injury and Claimant’s need f or a fifth back surgery in 2020. That is to say, the IAB applied the but

- for test and found Claimant’s fifth back surgery could not be attributed to his work

- related injury.
11. Accordingly, t he record below demonstrates that the IAB’s finding that
the fifth s urgery was not reasonable , necessary , and causally related to Claimant’s

15 See, e.g. Noel

- Liszkiewicz v. La

- Z

- Boy, Inc. , 2012 WL 4762114, at *4 (Del. Super. Oct. 3, 2012).6

work

- related injury is correct as a matter of law supported by substantial evidence.
The IAB decision is AFFIRMED.

IT IS SO ORDERED.

/s/ Robert H. Robinson, Jr. Robert H. Robinson, Jr., Judge

cc: Heather A. Long, Esquire Greogry P. Skolnik, Esquire