Hooten v. Blue Hen Disposal ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ALVIN HOOTEN, :
:
: C.A. No. K22A-05-001 JJC
Appellant, :
:
v. :
:
BLUE HEN DISPOSAL, :
:
:
Appellee. :
:
:
Submitted: November 15, 2022
Decided: February 1, 2023
MEMORANDUM OPINION
Upon Consideration of Appellant’s Appeal from the Decision of the Industrial
Accident Board – AFFIRMED
Walt F. Schmittinger, Esquire, SCHMITTINGER AND RODRIGUEZ, P.A., Dover,
Delaware, Attorney for Appellant.
Nicholas E. Bittner, Esquire, HECKLER & FRABIZZIO, Wilmington, Delaware,
Attorneys for Appellee.
Clark, R.J.
Appellant Alvin Hooten appeals an Industrial Accident Board (the "IAB" or
"Board") order that terminated his total disability benefits. Mr. Hooten suffered a
work-related neck injury in a December 2020 motor vehicle accident. As a result,
he received total disability benefits. Then, in late 2021, his employer, Appellee Blue
Hen Disposal, filed a petition to terminate those benefits. It alleged that his condition
had improved to the point that he had again become employable.
Before the hearing, Mr. Hooten became involved in a second, non-work-
related car accident in February 2022 (the “intervening accident” or the “new
accident”). Blue Hen nevertheless maintained that he could return to work, albeit
in a reduced physical capacity.
The IAB then held a hearing in March 2022 and oral argument in April. After
the hearing and argument, the Board terminated Mr. Hooten’s total disability
benefits. When doing so, it found him to be employable, full-time, though at a
sedentary level.
In this appeal, Mr. Hooten contends that the IAB committed an error of law
when it terminated his benefits based upon testimony from a medical expert who did
not examine him after the intervening accident. In response, Blue Hen contends
that the Board made no error. Blue Hen also contends that substantial evidence
supported the Board’s decision that Mr. Hooten (1) was employable before the
intervening accident, and (2) remained employable, from the perspective of his
work-related injuries, after the intervening accident.
For the reasons below, Mr. Hooten’s attempt to frame his appeal as a
challenge to an error of law is incorrect. Rather, his claims on appeal are properly
viewed as a challenge to the sufficiency of the evidence to terminate his total
disability benefits. When viewed in that light, the Board’s order must be affirmed
because substantial evidence supported the IAB’s decision.
2
I. FACTS OF RECORD AND PROCEDURAL BACKGROUND
On December 1, 2020, Mr. Hooten suffered a neck injury in a work-related
accident while driving a trash truck for Blue Hen. Shortly thereafter, Mr. Hooten
had surgery to address fractured C4 and C5 vertebrae. The parties do not dispute
that the work accident initially caused him total disability. As a result, Blue Hen’s
carrier paid him those benefits for more than a year.
In November 2021, Blue Hen petitioned the IAB to terminate his total
disability benefits. By that point, it contended that Mr. Hooten could return to work
and relied primarily on two examinations performed by Dr. Andrew Gelman, an
orthopedic surgeon: one on September 1, 2022, and another on January 25, 2022.1
As of January 25, 2022, Dr. Gelman opined that Mr. Hooten could return to medium
duty, full-time employment.2
The Board then set the hearing for March 23, 2022, but the intervening
accident happened shortly beforehand, on February 3, 2022. The proximity of the
new accident to the hearing day created the central issue in this appeal. Namely,
Mr. Hooten’s appeal turns on whether the Board permissibly relied upon Dr.
Gelman’s opinion, even though he did not examine Mr. Hooten after the new
accident and before the hearing.
At the hearing, the IAB considered the parties’ stipulation of facts, Mr.
Hooten’s testimony, and the testimony of three expert witnesses. In Blue Hen’s
case-in-chief, it presented Dr. Gelman’s testimony by deposition. In addition, Blue
Hen presented the testimony of Dr. Barbera Riley, a vocational case manager and
certified rehabilitation counselor. In response, Mr. Hooten testified and presented
the testimony of his treating physician, Dr. Sandeep Mann.
1
Tr. Dr. Gelman, IAB Hearing No. 1505754, Emp. Ex. 1 [hereinafter “Tr. Gelman”], at 6.
2
Id. at 37, 68–69.
3
First, Dr. Gelman testified that he examined Mr. Hooten twice before the
intervening accident. Based upon those examinations, he believed that Mr. Hooten
could return to work.3 In fact, he believed Mr. Hooten was fit to return to medium
duty.4 Dr. Gelman further testified that Mr. Hooten’s intervening accident did not
change his opinion. According to Dr. Gelman, Mr. Hooten’s medical records
supported two findings: (1) Mr. Hooten’s neck condition had improved by January
2022 to the point that he could return to work; and (2) the intervening accident left
his neck in the same condition as before. As a basis for the latter opinion, Dr.
Gelman explained that Dr. Mann recorded his neck pain at a three, on a scale of ten,
the day before the intervening accident.5 Likewise, Mr. Hooten told Dr. Mann his
neck pain remained at a three out of ten at office visits three weeks and one month
after the intervening accident.6
After Blue Hen presented Dr. Gelman’s deposition testimony, it presented live
testimony from its vocational rehabilitation expert, Dr. Riley. She based her
opinions on a vocational assessment and a labor market survey performed before the
intervening accident. She conceded that she had not considered any potential change
to Mr. Hooten’s employability after the intervening accident; rather, she relied on
Dr. Gelman’s opinion that Mr. Hooten could return to work.7 She identified eight
available jobs in the area that matched Mr. Hooten’s work restrictions.8 She testified
that the average weekly wage of those jobs was $681.80. 9
After Blue Hen rested, Mr. Hooten moved for a directed verdict. He based
his motion on Delaware decisional authority that recognizes that an aggravation of
3
Id. at 37.
4
Id.
5
Id. at 15.
6
Id. at 19.
7
IAB Hearing No 1505754 Transcript [hereinafter “Tr.”], at 41.
8
Id. at 47.
9
Id. at 49.
4
a work-related injury remains the responsibility of the employer.10 He further
contended that the IAB could assign no weight to Dr. Gelman’s opinions because he
did not examine Mr. Hooten after the intervening accident.
In response, Blue Hen told the Board that Mr. Hooten had not provided it fair
notice that he had been in a new accident.11 Blue Hen further relied upon prior IAB
decisions that permitted a doctor to provide an opinion based upon a record review
only. In that vein, Blue Hen emphasized that Dr. Gelman had reviewed all available
medical records of treatment after the new accident. Under the circumstances, Blue
Hen contended that the IAB permissibly accepted his opinion.
After recessing to consider the matter, the IAB returned and denied the
motion. The Board explained its reasoning and emphasized that it did so after
considering Dr. Gelman’s and Dr. Riley’s testimony in the light most favorable to
Blue Hen.12
Mr. Hooten then presented the deposition of his treating physician, Dr.
Sandeep Mann. Dr. Mann, an internal medicine doctor, treated Mr. Hooten both
before and after the intervening accident.13 He explained that Mr. Hooten could
never return to commercial driving.14 At one point, he opined that Mr. Hooten
10
See Hudson v. E.I. DuPont De Nemours, 245 A.2d 805, 809 (Del. Super. 1968) (recognizing
that an injury is compensable if it follows as a direct and natural result of the primary injury, while
also recognizing that a subsequent injury resulting from an intervening cause is not compensable);
see also Barkley v. Johnson Controls, 2003 WL 187278, at *2, 3 (Del. Super. Jan. 27, 2003)
(confirming the rule that an employer is liable for subsequent injuries if there is no separate
intervening event that breaks the causal chain connecting the first injury).
11
See Del. I.A.B. R. 9 (providing that the petitioner in a case must complete the Pre-Trial
Memorandum form and send it to the respondent’s counsel. The form must include the name of
any potential witness(es), a complete statement of what the petitioner seeks and alleges, a copy of
bills at least 30 days before the hearing if applicable, and a complete statement of defense to be
used by the opposing party).
12
Tr. at 79.
13
Tr. Dr. Mann, IAB Hearing No. 1505754, Cl. Ex. 1 [hereinafter “Tr. Mann”], at 6.
14
Id. at 13.
5
could not work in any capacity, either before or after the intervening accident.15
Elsewhere, however, Dr. Mann testified that he had not, and could not, evaluate
whether Mr. Hooten could perform sedentary duty.16 In fact, he acknowledged that
he had not been trained to perform functional capacity evaluations.17 Nor could he
provide an opinion regarding the degree of Mr. Hooten’s, or any patient’s, work
disability.18 Dr. Mann also confirmed that Mr. Hooten rated his neck pain at three
out of ten the day before the new accident. By February 22, 2022, Mr. Hooten
reported to Dr. Mann that his neck pain had returned to the same level.19 Mr.
Hooten’s low back pain, never claimed as an area of compensable injury, had
become the major issue.20
Mr. Hooten then testified. He explained that Dr. Mann was his primary
treating physician who treated him throughout 2021.21 Mr. Hooten also
acknowledged that by June 2021, he had been discharged from physical therapy.22
Furthermore, he told the Board that he had applied for social security disability,23
that he had “pushed off” Dr. Mann’s recommendation that he undergo a functional
capacity evaluation, and that he would not return to work at a production or desk
job.24
The hearing evidence also included references to Mr. Hooten’s last visit with
Dr. Mann before the IAB hearing – on March 2, 2022.25 There, Dr. Mann noted
15
Id. at 18, 28–29.
16
Id. at 34.
17
Id. at 33.
18
Id. 36.
19
Tr. Mann, at 38.
20
Id.
21
Tr. at 104.
22
Id. at 102.
23
Id. at 15.
24
Id. at 112–113.
25
Tr. Mann, at 38.
6
that Mr. Hooten had a limited range of motion in his neck, yet still rated his pain as
a three out of ten. At that time, Dr. Mann reissued a six-month work restriction
until September 1, 2022 (specific only to his CDL job) and scheduled another
functional capacity evaluation to determine whether he could perform alternate
jobs.26 While Dr. Mann believed that Mr. Hooten could not return to his previous
job within that six-month period, he conceded that Mr. Hooten should be evaluated
for a potential return to work at some level.27
II. THE IAB’S DECISION
In its written decision, the IAB explained why Mr. Hooten could return to
work in a sedentary capacity. First, it explained that it found Dr. Gelman’s testimony
credible.28 In contrast, it discounted much of Dr. Mann’s testimony because of
inconsistencies between his opinions and Mr. Hooten’s testimony.29 The Board also
had difficulty with Dr. Mann’s opinions because he admitted his inability to opine
regarding whether Mr. Hooten could return to restricted duty.30 In fact, Dr. Mann
admitted at one point that he “may be able to do some kind of job [and that he] should
be evaluated to work in some other capacity.”31
The IAB accepted Dr. Gelman’s and Dr. Riley’s testimony over Dr. Mann’s.
When doing so, it rejected Mr. Hooten’s argument that Dr. Gelman’s opinion had
no foundation as a matter of law. On the other side, the Board discounted Mr.
Hooten’s credibility because he (1) had refused orders for functional capacity
26
Id. at 39–40.
27
Id. at 36.
28
Hooten v. Charlie Waste Services, IAB Hearing No. 1505754, at 21–22 (April 19, 2022)
[hereinafter “IAB Order”].
29
Id. at 21.
30
Id. at 22.
31
Tr. Mann, at 36.
7
evaluations, (2) contradicted himself in part, (3) made no efforts to find a job, and
(4) told them he would refuse any work other than commercial driving.
Based on this evidence, the IAB terminated Mr. Hooten’s total disability
benefits as of April 19, 2022.32 In its decision, the Board explained why Mr. Hooten
was not a displaced worker. Because Mr. Hooten had work experience in the
manufacturing industry and in local government, the Board found his work skills
sufficiently transferrable to make him employable in a field that would fit his
sedentary restriction.
After terminating his total disability payments, the IAB awarded him partial
disability benefits.33 The Board calculated his current earning power based upon
the only labor market survey presented at the hearing. When comparing that to his
weekly wage at the time of the injury, the Board found his current diminished
earning capacity to be $15.93 per week because of the work accident.34 That, in turn,
drove the IAB’s award of $10.62 per week in partial disability compensation.35
Since Mr. Hooten technically prevailed at the hearing given the award of partial
disability, the IAB awarded him attorneys’ fees and a medical witness fee.
III. THE PARTIES’ ARGUMENTS
Mr. Hooten challenges the IAB’s finding that he was employable in any
capacity at the time of the hearing. Specifically, he argues that the Board committed
an error of law when it relied on Dr. Gelman’s opinion because Dr. Gelman did not
examine him after the intervening accident. For that reason, he contends that Dr.
32
IAB Order, at 26.
33
Id. at 27.
34
Id.
35
Id.
8
Gelman’s opinion deserves no weight as a matter of law. Under his theory of legal
error, he asks the Court to review the Board's decision de novo.
In what is more of an alternative argument, Mr. Hooten challenges whether
the record contains substantial evidence to support the Board’s decision. He
contends that the great weight of the evidence demonstrated that the intervening
accident aggravated his prior low back pain and shoulder injuries.
In response, Blue Hen contends that the Board permissibly accepted Dr.
Gelman’s opinion even though he did not examine Mr. Hooten after the intervening
accident. In support, Blue Hen emphasizes Delaware case law that permits a doctor
to rely on a medical record review only. Furthermore, Blue Hen contends that Mr.
Hooten did not comply with IAB disclosure rules because he provided no notice that
there was a new accident at least thirty days before the hearing. Finally, Blue Hen
contends that because Mr. Hooten had claimed only a neck injury in the workers’
compensation case, he could not, for the first time, claim additional injuries in the
termination hearing.
IV. STANDARD OF REVIEW
On appeal, the Superior Court must determine whether the IAB committed an
error of law and whether the record contains substantial evidence to support its
decision.36 The Court’s standard of review of an alleged error of law is de novo.37
If an appellant challenges the sufficiency of the evidence to support IAB factual
findings, however, the Court applies a more deferential standard. In those cases, it
36
Murphy & Landon, P.A. v. Pernic, 121 A.3d 1215, 1221 (Del. 2015).
37
Stanley v. Kraft Foods, Inc., 2008 WL 2410212, at *2 (Del. Super. Mar. 24, 2008) (citing
Digiacomo v. Bd. of Pub. Educ., 507 A.2d 542, 546 (Del. 1986)).
9
determines whether the record contains substantial evidence to support the Board’s
factual findings.38
Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”39 Reviewing the record for substantial
evidence requires the Court to review the record for “more than a scintilla but less
than a preponderance of the evidence.”40 The Court must view the facts in the light
most favorable to the party that prevailed below.41 Furthermore, the Court cannot
determine questions of credibility or make its own factual finding.42 Absent an error
of law, the Board's decision must be upheld unless it abused its discretion.43 A Board
abuses its discretion “when its decision exceeds the bounds of reason in view of the
circumstances.”44
V. ANALYSIS
Although Mr. Hooten frames the central issue in his appeal as a challenge to
an error of law, this case requires the Court to evaluate the sufficiency of the
evidence. For the reasons discussed below, the IAB did not commit legal error
when it relied on Dr. Gelman’s testimony. Furthermore, the record contains
substantial evidence to support the Board’s findings.
38
Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993).
39
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Fed. Mar. Comm'n, 383
U.S. 607, 620 (1966)).
40
Washington v. Delaware Transit Corp., 226 A.3d 202, 210 (Del. 2020) (citation omitted).
41
Chudnofsky v. Edwards, 208 A.2d 516, 518 (Del. 1965).
42
Bullock, 1995 WL 339025, at *2 (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del.
1965)).
43
Hoffecker v. Lexus of Wilmington, 36 A.3d 349, 2012 WL 341714, at *1 (Del. Feb. 1, 2012)
(TABLE).
44
Id.10
A. The Board committed no legal error when relying on Dr.
Gelman’s expert opinion.
Mr. Hooten first claims that the IAB erred as a matter of law when it relied on
Dr. Gelman’s “out-of-date” opinion. He contends that an expert cannot opine that
the Board should terminate disability benefits if the doctor did not examine the
claimant after a significant intervening event, such as a new accident or surgery.
Mr. Hooten is incorrect for two reasons.
First, Delaware decisional law recognizes that a medical expert can provide
an opinion about a patient's condition without physically examining that patient.45
If Delaware courts, that apply strict rules of evidence, recognize that a doctor has an
adequate foundation to offer such an opinion, the IAB commits no legal error when
it accepts one.46 Moreover, Dr. Gelman relied only in part on a record review. He
also examined Mr. Hooten on September 1, 2021, and on January 25, 2022.47 He
also reviewed Mr. Hooten's medical records, including the records of Dr. Mann, First
State Orthopedics, ATI, and those from the emergency room visits. They described
all relevant treatment and observations of Mr. Hooten’s condition, from both before
and after the intervening accident.48 In fact, Dr. Gelman relied heavily on Dr.
Mann’s records that recognized Mr. Hooten’s consistent pain level from both before
and after the intervening accident.
45
Norman v. All About Women, P.A., 193 A.3d 726, 731 (Del. 2018); see Delmarva Power & Light
v. Stout, 380 A.2d 1365, 1369 (Del. 1977) (finding that a physician’s expert opinion was relevant
and admissible even though he never examined the plaintiff or consulted with the plaintiff’s
treating doctor); see also State v. Dale, 2021 WL 5232344, at *5 (Del. Super. Nov. 10, 2021)
(recognizing that a physician may reach a reliable diagnosis without performing a physical
examination); State v. McMullen, 900 A.2d 103, 117–18 (Del. Super. 2006) (providing that so long
as a physician employs an objective diagnostic technique, it is acceptable for the physician to arrive
at a different diagnosis performed by another medical practitioner).
46
See Del. I.A.B. R. 14 (recognizing that the Board, as most administrative bodies, has the
discretion to apply relaxed rules of evidence).
47
Tr. Gelman, at 6.
48
Id.11
Second, fault for Blue Hen’s inability to have a third defense medical
examination fairly rests upon Mr. Hooten’s failure to timely notify Blue Hen of an
intervening accident. Here, the IAB’s decision did not rely directly on an IAB
procedural rule when rejecting Mr. Hooten’s position. Nevertheless, one of its
procedural rules independently resolves the matter because Blue Hen received
insufficient notice under the rule. IAB Rule 9(C) provides, in part, that a party’s
pretrial memorandum submission must provide the following within thirty days
before the hearing:
a complete statement of what the petitioner seeks and alleges[,and] a
complete statement of the defenses to be used by the opposing party.49
The IAB refers to this rule as “[t]he thirty-day notice requirement,” and recognizes
the intent of the rule is to provide adequate notice to both parties so they can prepare
for the upcoming hearing.50
Here, Mr. Hooten claimed no aggravation of his neck injury in the pretrial
memorandum.51 Nor did he seek, at any time, to amend the pretrial memorandum.
Unfortunately, neither the IAB nor the parties included the pretrial memorandum in
the appellate record. Nor did they provide any prior agreement on compensation,
or prior IAB decision, that addressed Mr. Hooten’s claims from before the
termination proceedings. Nevertheless, Blue Hen contended, both before the IAB
49
Del. I.A.B. R. 9(C)(2) –(3).
50
See Torres v. Allen Family Foods, 672 A.2d 26, 31 (Del. 1995) (providing that the IAB may not
relax rules designed to ensure the fairness of the proceedings); see also Abrahams v. Chrysler
Group, LLC, 2012 WL 1744270, at *3 (Del. May 11, 2012) (recognizing that the IAB pre-trial
memorandum requirements must be followed to ensure fairness); Fountain v. MacDonald’s, 2016
WL 3742773, at *7 (Del. Super. Jun. 30, 2016) (affirming the IAB’s preclusion of evidence
because the opposing party did not disclose that evidence in the pre-trial memorandum).
51
See Tr. at 70 (discussing Mr. Hooten’s failure to identify any additional compensable injuries in
a pre-trial memorandum submission); see also id. at 99 (including counsel for Blue Hen’s
argument that Mr. Hooten failed to notify it in the pre-trial memorandum that there was an
intervening accident).
12
below and on in its briefing on appeal, that the only recognized work injury was to
Mr. Hooten’s neck. At no stage has Mr. Hooten refuted Blue Hen’s contention that
he failed to address the new accident in his pretrial memorandum submission. As a
result, the record on appeal supports only the following: (1) Mr. Hooten declined to
notify Blue Hen, in a timely manner, that he had an intervening accident; and (2)
Mr. Hooten failed to provide notice to Blue Hen that he sought benefits for injury to
a body part other than to his neck.
In support of his appeal, Mr. Hooten contends that two IAB decisions required
the Board to grant his directed verdict motion: Luettke v. Central Delaware
Endoscopy,52 and Bailey v. Easy Lawn Supply.53 Mr. Hooten presents the cases in
his brief as though they were controlling law. To the contrary, on appeal, prior
IAB decisions provide highly persuasive authority given the IAB’s expertise in these
matters. In limited circumstances, they may also provide the basis for demonstrating
the denial of a litigant’s procedural due process rights.
As to the latter, black letter administrative law recognizes that an agency
generally must follow its own case-decision precedent.54 If it does not, the failure
to do so may violate a litigant’s procedural due process rights. Namely, an agency
is bound by its prior decisions when those decisions provide clear statements of law
or policy, unless the agency explains why it has changed its position.55 In an
administrative appeal, the Court must review an agency decision for arbitrariness
and capriciousness.56 If an agency fails to follow its own precedent, and that
52
Luettke v. Central Delaware Endoscopy, IAB Hearing No. 1310568 (Jun. 23, 2008).
53
Bailey v. Easy Lawn Supply, Inc., IAB Hearing No. 1285073 (Nov. 13, 2009)
54
See Wilson v. Gingerich Concrete & Masonry, 2022 WL 701632, at *8 (Del. Super. Mar. 9,
2022) (recognizing that an agency must explain why it deviated from its own precedent, if that
precedent establishes a definitive standard or policy); see also Charles H. Koch, Jr. & Richard
Murphy, Impact of Administrative Decisions, 2 Admin. L. & Prac. § 5:67 (3d ed. 2022) (explaining
that “consistency is a fundamental force in administrative law”).
55
Wilson, 2022 WL 701632, at *8.
56
Delaware Transit Corp. v. Roane, 2011 WL 3793450, at *5 (Del. Super. Aug. 24, 2011).
13
precedent provided a clear statement of policy or law, the agency acts arbitrarily and
capriciously unless it explains why it changed its position.
Here, the Board’s decision is consistent with both IAB decisions cited by Mr.
Hooten so there is no inconsistency in the Board’s approach. First, in Luettke, the
employer’s medical expert did not consider the employee’s upcoming surgery
scheduled for eight days after the Board hearing. Nevertheless, he testified that the
IAB should terminate his total disability benefits.57 Under those circumstances, the
Board declined to afford the doctor’s opinion any weight. As a result, it granted a
directed verdict for the employee at the close of the employer’s evidence.58
Importantly, the doctor in the Luettke case did not even attempt to address what work
restriction the employee would face after the upcoming surgery.
Second, the IAB also granted a directed verdict in the Bailey case. There, the
employer’s medical expert did not examine the employee after a surgery performed
on the eve of the hearing.59 In that case, the Board also rejected the doctor’s opinion
because of an inadequate foundation.60 The IAB reasoned that because (1) the
employer’s medical expert did not examine the employee after the recent work-
related surgery, and (2) the expert provided no basis for his ipse dixit opinion that
the claimant was employable after the surgery, the medical expert’s opinion should
be afforded no weight.
Luettke and Bailey are distinguishable for several reasons. Unlike the
employees in those matters, Mr. Hooten failed to provide sufficient notice of the new
accident. Furthermore, neither of the physicians in those cases reviewed the
claimant’s post-surgery medical records, as Dr. Gelman did in Mr. Hooten’s case.
57
Luettke, IAB Hearing No. 1310568, at 2.
58
Id.59
Bailey, IAB Hearing No. 1285073, at 2.
60
Id.14
In one sense, Mr. Hooten’s post-intervening-accident medical records alone
provided substantial evidence to support Dr. Gelman’s opinions. Namely, they
provided substantial evidence that the only work-related injury – the neck – had
returned to the same point as when Dr. Gelman personally examined him in January.
As a final distinguishing factor, both Luettke and Bailey involved claims that
addressed only injuries that the Board had already recognized as compensable. Mr.
Hooten seeks to interject claims addressing his shoulder and lower back.
In summary, the Board did not commit an error of law when it accepted Dr.
Gelman’s opinion. Rather, it accepted his opinion because he based it on two live
examinations and a review of all relevant medical records. Because the Board did
not err as a matter of law, the Court’s inquiry turns to whether the record contained
substantial evidence to support the Board’s decision.
B. The record contains substantial evidence to support the IAB’s decision to
terminate Mr. Hooten’s total disability benefits.
In this case, Blue Hen bore the burden of proof before the Board when seeking
to terminate Mr. Hooten’s benefits. In a total disability termination case, the
employer must prove first, by a preponderance of the evidence that the employee is
no longer totally disabled.61 As the Delaware Supreme Court explained, the
threshold question in a total disability termination case is whether the employee is
capable of working a job for which a reasonably stable market exists. 62 The
employer carries the burden to demonstrate that “the employee is no longer totally
incapacitated for the purpose of working.”63
61
Howell v. Supermarkets General Corp., 340 A.2d 833, 834 (Del. 1975); Chrysler Corp. v. Duff,
314A.2d 915, 917 (Del. 1973).
62
M.A. Harnett v. Coleman, 226 A.2d 910, 913 (Del. 1967).
63
Torres, 672 A.2d at 26.
15
If an employer meets its initial burden, the claimant may still successfully
defend against a petition to terminate if he or she can demonstrate displacement.64
Delaware decisional law provides two ways for an employee to demonstrate that he
or she is a displaced. First, the employee may demonstrate that he or she is a prima
facie displaced worker.65 Normally, an employee must have only worked in
unskilled labor positions to so qualify.66 As an alternative to demonstrating prima
facie displacement, an employee may demonstrate that he or she has been “actually
displaced.” The latter requires the employee to prove that he or she has actively
searched for work but has not succeeded.67 Finally, if the employee demonstrates
that he or she has been displaced under either alternative, the burden shifts back to
the employer who is permitted to identify available job opportunities within the
employee’s restrictions.68
Some additional benchmarks apply to the Court’s review for substantial
evidence of record. For example, only the Board can assesses witness credibility.69
Moreover, the Board’s role when doing so is no different if medical experts are
involved.70 In fact, the Delaware Supreme Court has gone as far as to hold that the
Board has the sole discretion to resolve any conflicts in expert medical testimony.71
Accordingly, the Board can simply choose to accept one physician's testimony over
64
See Roos Foods v. Guardado, 152 A.3d 114, 118 (Del. 2016) (explaining the shifting burdens
involved in this analysis and listing the factors that the Board must consider when determining if
a claimant is a displaced worker).
65
Duff, 314 A.2d at 916-17.
66
Bailey v. Milford Memorial Hosp., 1995 WL 790986, at *7 (Del. Super. Nov. 30, 1995).
67
See Roos Foods, 152 A.3d at 119 (explaining that if the claimant fails to demonstrate he or she
is a prima facie displaced worker, he or she may still show actual displacement by showing
reasonable efforts to secure suitable employment and failure to do so because of the work injury)
68
Duff, 314 A.2d at 917, 918 n. 1.
69
Bullock, 1995 WL 339025, at *2.
70
Timmons v. Delaware Home & Hosp., 1985 WL 5336, at *3 (Del. Super. Dec. 30, 1985).
71
Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006).
16
another’s.72 As a broader benchmark for review, if the record contains substantial
evidence to support two reasonable but contrary results, the Board’s conclusion
controls on appeal.73
Here, the IAB explained how it weighed Dr. Gelman’s and Dr. Mann’s
opinions and why it relied on Dr. Gelman’s. Dr. Gelman’s expert opinion alone
provided substantial evidence to support the Board’s finding that Mr. Hooten could
return to work. The Board had the exclusive prerogative to decide which of the
doctors to believe and which to disbelieve.74 When finding Dr. Gelman more
credible, the IAB reasonably explained why it discounted Dr. Mann’s testimony.
For instance, Dr. Mann did not testify clearly as to whether he believed Mr. Hooten
should be restricted from all work or only from commercial driving. In fact, at one
point, Dr. Mann admitted that he had only ever intended that his work restrictions
apply to Mr. Hooten’s commercial driving – not to all work.75 Finally, Dr. Mann
admitted that he was not qualified to evaluate whether Mr. Hooten could work
sedentary or moderate duty.76
Evidence bearing on Mr. Hooten’s credibility provided further support for the
Board’s decision. At times, Mr. Hooten’s description of his injuries conflicted with
those provided by Dr. Mann. Elsewhere, Mr. Hooten admitted that he had denied
injury immediately following the intervening accident and then later described it as
72
Cottman v. Burris Fence Const., 918 A.2d 338, 2006 WL 3742580, at *3 (Del. Dec. 19, 2006)
(TABLE); see also Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006) (holding
that “[w]here the Board adopts one medical opinion over another, the opinion adopted by the Board
constitutes substantial evidence for purposes of appellate review.”).
73
See Disabatin Bros., Inc. v. Wortman, 453 A.2d 102, 106 (Del. 1982) (explaining that in cases
that have substantial evidence that supports opposing positions, the Court cannot overturn the
Board’s choice on appeal).
74
Cottman, 2006 WL 3742580, at *3.
75
IAB Order, at 26; see Tr. Mann, at 34 (stating that Mr. Hooten’s work excuse extended only to
his pre-injury job).
76
Tr. Mann, at 33.
17
only as minimal trauma.77 Furthermore, Mr. Hooten rated his neck pain consistently
as a three on a scale of ten both before the intervening accident and after. Mr.
Hooten also told the Board he would accept no production or desk work, and that he
did not want to attend vocational rehabilitative training.78 Finally, within just a few-
minute span in the hearing, he told the IAB that he could no longer drive in any
capacity because of the work injury, but then told the Board that he drives himself
to medical appointments every day.79
Substantial evidence also supported the Board’s finding that Mr. Hooten was
not a displaced worker. First, the record regarding prima facie displacement
includes sufficient evidence for a reasonable mind to conclude that he had
transferrable skills. Dr. Riley explained that Mr. Hooten had previously worked as
a CDL driver, a manufacturing worker, and a government employee. Dr. Riley also
described Mr. Hooten’s age, education, skill level, previous employment, and
medical history.80 In response, Mr. Hooten offered no contravening evidence to
support that he was a prima facie displaced worker. In fact, Dr. Riley identified
eight jobs in the area with employers who could accommodate Mr. Hooten’s
restrictions.81
Likewise, the record contains no evidence to support his actual displacement.
He conceded that he had done nothing to look for work since the work accident.
Because he had not searched for work in any capacity or participated in vocational
rehabilitation, substantial evidence supports the Board’s finding that Mr. Hooten
took no reasonable efforts to secure suitable employment.
77
Tr. at 106.
78
Tr. Mann, at 36; Tr. at 113.
79
Tr. at 116; cf. id. at 117.
80
Tr. at 41.
81
Id. at 48.
18
Finally, Mr. Hooten includes one other contention in his appeal, in undertone.
Namely, a significant part of his claim seems to rely on a suggested inference that
the intervening motor vehicle accident aggravated injuries to his lower back and
shoulder. Injuries to those body parts, however, were simply not at issue. Namely,
Blue Hen and Mr. Hooten presented stipulated facts to the IAB that described his
neck injury as the only compensable injury.82 While the Court appreciates Mr.
Hooten’s implicit argument that the neck injury may not have been his only work-
related injury, he did not fairly present a claim for either before the termination
hearing. Moreover, even apart the insufficient notice, the hearing record contains
no evidence that could have arguably met his burden of proving that an injury, other
than to his neck, resulted from the work accident.
VI. CONCLUSION
For the abovementioned reasons, the Board did not commit an error of law
when it accepted Dr. Gelman’s opinions. Substantial evidence supported the
Board’s decision to terminate Mr. Hooten’s total disability benefits and to place him
on partial disability. As a result, the Board’s decision in this matter is AFFIRMED.
IT IS SO ORDERED.
/s/Jeffrey J Clark
Resident Judge
82
Appellee's Ans. Br., Ex. A, ¶ 1.
19