Barrett Business Service, Inc. v. Edge ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
BARRETT BUSINESS SERVICE, )
INC., D/B/A ENTERPRISE )
MASONRY, )
)
Appellant, )
)
v. ) C.A. No.: N21A-03-004 CEB
)
ROBERT EDGE, )
)
Appellee. )
ORDER
Submitted: July 15, 2021
Decided: October 14, 2021
Upon Consideration of Barrett Business Services, Inc.’s Appeal from a Decision of
the Industrial Accident Board,
AFFIRMED.
Nicholas E. Bittner, Esquire, HECKLER & FRABIZZIO, Wilmington, Delaware.
Attorney for Appellant Barrett Business Service, Inc., d/b/a Enterprise Masonry.
Timothy E. Lengkeek, Esquire, YOUNG CONAWAY STARGATT & TAYLOR,
LLP, Wilmington, Delaware. Attorney for Appellee Robert Edge.
BUTLER, R.J.
Appellant Barrett Business Service, Inc., d/b/a Enterprise Masonry
(“Employer”), seeks review of a decision of the Industrial Accident Board (the
“Board”) that awarded Robert Edge (“Claimant”) compensation for a stroke the
Board found was “caused” by work-related injuries Claimant had sustained earlier
in the day. The Court assumes the parties’ familiarity with this case’s facts and
procedural history and so only recounts the background relevant for affirming the
Board’s decision.1
1. Claimant was working on a scaffold at one of Employer’s jobsites. He fell
off. At the hospital, things got worse. He suffered a stroke in the emergency room
that left him fully disabled.
2. Claimant sought compensation from Employer for the stroke. Employer
opposed—a position that led to a causation debate. The stroke occurred several
hours after Claimant’s fall and the doctors gave Claimant a clot-disrupting
medication that dramatically reduced his blood pressure. Claimant’s poor cardiac
health and questions about the seriousness of his injuries led the parties to focus on
whether the stroke resulted from the workplace fall or something else.
1
The Court directs interested readers to two decisions issued in connection with this
matter that document more completely Claimant’s injuries and the agency and
appellate litigation they have generated. See generally Barrett Bus. Serv., Inc. v.
Edge, 2020 WL 6335897 (Del. Super. Ct. Oct. 29, 2020) (“Edge II”); Barrett Bus.
Servs., Inc. v. Edge, 2019 WL 2070460 (Del. Super. Ct. May 1, 2019) (“Edge I”).
1
3. Causation mattered. If the fall were deemed the actual, “but-for” cause of
the stroke, then the stroke and its costs would be compensable as work-related
injuries.2 If not, Claimant would not receive Worker’s Compensation benefits.
4. As so often happens in these matters, the dispute became a battle of the
experts. Although the experts seemed to agree the stroke originated from a clogged
or “occluded” carotid artery, they disagreed about why the artery clogged in the first
place. Specifically, the experts dueled over whether the fall caused the stroke by
contributing to a carotid occlusion or whether the occlusion caused the stroke
independently from the fall due to Claimant’s poor health and his medically-induced
drop in blood pressure.
5. Claimant’s experts proposed a direct causal theory. They opined that the
fall aggravated Claimant’s pre-existing arteriosclerosis, separating plaque particles
from vessel walls, putting them in motion in Claimant’s body, and eventually
combining them to block the blood flow in his carotid artery. They also testified
that cases like this one—in which the symptoms of blockage arise within hours after
a trauma—tend to show that, regardless of a trauma’s seriousness, a patient may be
asymptomatic until the occlusive mass the trauma aggravated produces the stroke.
2
See 19 Del. C. § 2301(5), (16) (2020) (defining “compensation,” “injury,” and
“personal injury”).
2
6. Employer’s experts advanced a superseding cause theory based on
Claimant’s previously known risk factors. They opined that Claimant had
physiological comorbidities, including untreated hypertension, together with a
negative cardiac history, which included tobacco consumption, that independently
caused the stroke. They also challenged the premise of Claimant’s experts’ trauma
studies, testifying that Claimant’s facial injury was too minimal to dislodge pre-
existing plaque.
7. The Board found the fall caused the stroke and so awarded Claimant
compensation. In reaching its verdict, the Board framed its analysis in witness
credibility. It found Claimant’s experts opinions to be more consistent with the facts
and filled more evidentiary gaps. Conversely, the Board found Employer’s experts
failed to establish that the delay between the fall and the stroke or administration of
medication at the hospital was significant. Moreover, the Board observed that
Employer’s force conclusions were contradicted by other evidence (e.g., data on the
relationship between minor head damage and cardiac occlusions). The Board also
reasoned that, under Delaware law, the presence of multiple health issues is not
controlling where, as here, the work accident sets the injury in motion.3
3
D.I. 7, Ex. L at 11–12 (citing Reese v. Home Budget Ctr., 619 A.2d 907, 912 (Del.
1992)) (hereinafter “Bd. Op.”).
3
8. This is Employer’s third trip to the appellate well.4 In its first appeal,
Employer successfully argued that the Board did not articulate its causation finding
clearly enough.5 In its second appeal, Employer convinced the Court that the Board
on remand should have permitted Employer to introduce new expert testimony on
causation, but did not.6 Now, armed with additional experts and a clarified causation
ruling, Employer argues the Board’s decision is not supported by substantial
evidence.
9. This Court has jurisdiction to hear appeals from the Board’s decisions.7
“[T]he sole function of the Superior Court . . . on appeal[] is to determine whether
or not there was substantial competent evidence to support the finding[s] of the
Board, and if [there is], to affirm the findings of the Board.”8 The Court’s review is
confined to determining whether “the evidence is legally adequate to support the
agency’s factual findings.”9 As a result, appellate review of an administrative
decision is not an opportunity for an unsuccessful party to relitigate factual issues
4
See supra note 1.
5
Edge I, 2019 WL 2070460, at *3–4.
6
Edge II, 2020 WL 6335897, at *13–15.
7
19 Del. C. § 2350(a).
8
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
9
Boggerty v. Stewart, 14 A.3d 542, 550 (Del. 2011) (internal quotation marks
omitted).
4
presented to, and decided by, the agency.10 The Court will not entertain granular
critiques of the evidentiary weight the Board afforded the facts adduced below or
reevaluate the credibility the Board assigned the witnesses who appeared before it.11
10. Absent legal error, the Court will defer to the Board’s factual findings
where supported by substantial evidence.12 The substantial evidence standard sets a
low bar.13 An agency decision is supported by substantial evidence if it is based on
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”14 “Only when there is no satisfactory proof to support a factual finding
of the Board may the [Court] . . . overturn that finding.”15 If substantial evidence for
the Board’s decision exists, it “must be affirmed.”16 Accordingly, unless the Board’s
10
See, e.g., Falconi v. Coombs & Coombs, Inc., 902 A.2d 1094, 1098 (Del. 2006)
(“The appellate court does not weigh the evidence, determine questions of
credibility, or make its own factual findings.”).
11
See, e.g., Noel–Liszkiewicz v. La–Z–Boy, 68 A.3d 188, 191 (Del. 2013)
(“Weighing the evidence, determining the credibility of witnesses, and resolving any
conflicts in the testimony are functions reserved exclusively for the Board.”).
12
E.g., Roos Foods v. Guardado, 152 A.3d 114, 118 (Del. 2016); see also Del. Bd.
of Med. Licensure & Discipline v. Grossinger, 224 A.3d 939, 951, 955 & n.119 (Del.
2020) (observing that an agency’s legal interpretation is reviewed de novo but its
application of that interpretation to the facts is reviewed for substantial evidence).
13
See, e.g., Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (“[W]hatever the
meaning of ‘substantial’ in other contexts, the threshold . . . is not high.”).
14
Person–Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009) (internal
quotation marks omitted).
15
Powell v. OTAC, Inc., 223 A.3d 864, 871 (Del. 2019) (alteration and internal
quotation marks omitted).
16
Breeding v. Contractors–One–Inc., 549 A.2d 1102, 1104 (Del. 1988).
5
reasoning is irrational or legally erroneous, or the Board mischaracterizes or ignores
the record, the Court will defer to the Board’s decision.17
11. Substantial evidence supports the Board’s decision. The Board evaluated
all the expert testimony and simply found Claimant’s experts had more credible
opinions. In doing so, the Board considered the whole record, including expert
depositions from prior proceedings, identified weaknesses in Employer’s experts’
testimonies both on their own terms and in reference to other testimonial and
scientific evidence, and articulated specific reasons why those testimonies were
deficient. For example, the Board found Employer’s experts unable to demonstrate
any importance of the delay between the fall and the stroke.18 The Board also
accepted, arguendo, Employer’s experts’ opinion that Claimant incurred
insignificant head injuries, but also found Employer’s experts overlooked statistical
evidence suggesting that at least 50% of post-trauma strokes occur in patients who
were injured as lightly as the experts hypothesized.19 Given these discrepancies, the
Board decided Employer’s experts lacked knowledge sufficient to support an
evidentiary finding that Claimant’s fall did not cause the stroke.20 The Board’s use
17
See Murphy & Landon, P.A. v. Pernic, 121 A.3d 1215, 1221–24 (Del. 2015).
18
Bd. Op. at 12.
19
Id.20
Id. at 12–13.
6
of competent evidence to measure credibility implies a logical and organized fact-
finding process that is entitled to deference on appeal.21
12. Contrary to Employer’s contentions, the law permits the Board, through its
experience, to resolve conflicting medical testimony by rejecting, “in whole or in
part, the testimony of one physician” on credibility grounds.22 And it may do so
without expressly parsing and refuting every bit of testimony the rejected expert
provided.23 Here, the Board rejected Employer’s experts and, even though not
required, it provided clear reasons for doing so. Employer’s dissatisfaction with that
otherwise rational outcome does not diminish the “satisfactory proof” supporting
it.24 Indeed, the Court will not intrude into the Board’s exclusive province of witness
credibility whenever an unsuccessful litigant thinks its experts were more effective
than the Board found them to be.25 Instead, where the Board appropriately adopts
21
Boggerty, 14 A.3d at 550; accord Pernic, 121 A.3d at 1222 & n.28.
22
Turbitt v. Blue Hen Lines, Inc., 711 A.2d 1214, 1215 (Del. 1998); Noel–
Liszkiewicz v. La–Z–Boy, Inc., 2012 WL 4762114, at *4 (Del. Super. Ct. Oct. 3,
2012) (“In a battle of experts, the Board is ordinarily free to favor one expert’s
testimony.”), aff’d, 68 A.3d 138; see also 29 Del. C. § 10142(d) (2020) (“The Court
. . . shall take due account of the experience and specialized competence of the
agency . . . .”).
23
See, e.g., Steppi v. Conti Elec., Inc., 2010 WL 718012, at *3 (Del. Mar. 16, 2010)
(“It is well-settled law that the Board may accept the testimony of one expert while
summarily disregarding the opinion testimony of another expert.”).
24
Evans v. Tansley, 1988 WL 32033, at *3 (Del. Mar. 29, 1988).
25
Thompson v. Christiana Health Care Sys., 25 A.3d 778, 782 (Del. 2011);
Unemp. Ins. Appeal Bd. v. Div. of Unemp. Ins., 803 A.2d 931, 937 (Del. 2002).
7
one expert opinion over another, as it did here, the opinion the Board adopts qualifies
as substantial evidence.26
13. Nor may Employer retry through the backdoor of an administrative appeal
the case it lost below. The Board was free to select who it thought to be the most
credible of the competing experts.27 And it did not abuse that discretion. The Board
properly acknowledged the disparities dividing each side’s views, but still “was
entitled to accept” Claimant’s experts over the others.28 After all, testimony is
imperfect; the law does not require the Board to reconcile every inconsistency before
choosing who to believe.29
14. To be sure, the Board’s choice was not the only possible one. The Board
could have preferred Employer’s experts or put less weight on Claimant’s experts.
But the Board’s method for choosing Claimant’s experts neither “exceed[s] the
26
Person–Gaines, 981 A.2d at 1161.
27
See, e.g., Playtex Prods., Inc. v. Leonard, 2002 WL 31814637, at *3 (Del. Super.
Ct. Nov. 14, 2002) (“The Court does not stand as the trier of fact and will not weigh
witness credibility [or] substitute its own opinion for that of the Board’s [where]
there is sufficient evidence to support the Board’s decision . . . .” (citations omitted)),
aff’d, 2003 WL 21107145 (Del. May 12, 2003).
28
Standard Distrib. Co. v. Nally, 630 A.2d 640, 646 (Del. 1993).
29
See Steppi, 2010 WL 718012, at *3.
8
bounds of reason” nor rests on a factual or legal error.30 So, even if the Court might
have chosen differently, it cannot override the Board’s judgment with its own.31
15. In its two previous appeals, Employer needed to show the Board
committed an error of fact or law or otherwise failed to craft a decision capable of
promoting meaningful appellate review. It did. This time, Employer needed to show
the Board’s decision finding Employer’s experts less persuasive than Claimant’s
experts was not supported by substantial evidence.32 It did not. Accordingly, the
Board’s decision is AFFIRMED.
IT IS SO ORDERED.
Charles E. Butler, Resident Judge
30
Sweeney v. Del. Dep’t of Transp., 55 A.3d 337, 342 (Del. 2012); Gargano v.
Food Lion, Inc., 2012 WL 5356294, at *2 (Del. Oct. 31, 2012).
31
E.g., Olney v. Cooch, 425 A.2d 610, 613 (Del. 1981); Kreshtool v. Delmarva
Power & Light Co., 310 A.2d 649, 653 (Del. 1973).
32
See, e.g., Mancus v. Merit Emp. Rels. Bd., 2019 WL 480040, at *4 (Del. Super.
Ct. Feb. 1, 2019) (“The burden of persuasion is on the party seeking to overturn a
decision of the Board to show that the decision was arbitrary and unreasonable.”
(internal quotation marks omitted)).
9