Washington v. Delaware Transit Corp

IN THE SUPREME COURT OF THE STATE OF DELAWARE LESHAWN WASHINGTON § § No. 333, 2019 Appellant-Below, § Appellant, § § Court Below: v. § Superior Court § of the State of Delaware DELAWARE TRANSIT CORP., § § Appellee-Below, § C.A. No. N18A-12-007 Appellee. § Submitted: January 15, 2020 Decided: March 2, 2020 Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

Upon appeal from the Superior Court. REVERSED and REMANDED.

Michael I. Silverman, Esquire, Adrienne M. McDonald, Esquire, Silverman McDonald & Friedman, Wilmington, Delaware for Appellant.

John J. Klusman, Esquire, Kenneth L. Wan, Esquire, Tybout Redfearn & Pell, Wilmington, Delaware for Appellee.

VALIHURA, Justice: This is an appeal of a July 22, 2019 decision by the Superior Court affirming the November 28, 2018 Order (the “Order”) of the Industrial Accident Board (the “IAB” or “Board”) granting Delaware Transit Corporation’s (“DTC”) motion to dismiss Claimant LeShawn Washington’s (“Claimant”) Petition seeking benefits for Permanent Impairment (the “PI Petition”).

Claimant suffered an injury to his left shoulder in a work-related incident that occurred on August 4, 2016 and was placed on disability. Upon returning to work, he claimed that his shoulder symptoms had worsened. Claimant then filed a Petition seeking compensation for a recurrence of temporary total disability (the “TTD Petition”),1 which the IAB denied (the “TTD Opinion”). Claimant then filed his PI Petition.

In preparing for the hearing on the PI Petition, both parties obtained medical expert opinions regarding the degree of Claimant’s permanent impairment. Both parties’ experts agreed that there was some degree of permanent impairment. Nevertheless, DTC moved to dismiss the PI Petition at the commencement of the hearing. DTC argued that the IAB had previously ruled on the matter during Claimant’s TTD Petition hearing when it stated that Claimant had “fully recovered” from his work injury. The IAB agreed, and dismissed the PI Petition on that basis, before considering the permanent impairment testimony.2

Claimant appealed the IAB’s decision to the Superior Court, arguing that the IAB never concluded that the Claimant had “fully recovered.” In affirming the IAB’s Order,3 the Superior Court recognized that the IAB’s “Findings of Fact and Conclusions of Law” section did not contain the words “fully recovered.”4 However, the court acknowledged that the phrase “fully recovered” was in the “Summary of Evidence” section.5 The court highlighted the IAB’s references to Dr. Gregory Tadduni’s testimony that Claimant’s shoulder examination was “normal,” and that Claimant had “returned to normal.” 6 The Superior Court then held that the Board had reasonably interpreted the TTD Opinion, and that the Board’s decision to dismiss was supported by substantial evidence.

Claimant raises two issues on appeal. First, he asserts that the Superior Court erred in concluding that the Board had reasonably interpreted the TTD Opinion. He argues that the Board never considered the testimony regarding his permanent impairment because the issue considered by the experts in the temporary total disability context, although related, is different from the issue addressed by the experts in the permanent impairment context.

Therefore, it was error for both the Board, and the Superior Court, to dismiss the PI Petition based solely on the testimony given in the total temporary disability context. Second, Claimant asserts that the Superior Court erred as a matter of law in holding that the Board’s dismissal of his PI Petition was supported by substantial evidence. Claimant argues that the Board did not have any evidence regarding his impairment because the Board dismissed the PI Petition without considering the testimony related to the PI Petition.

As explained below, we hold that the Superior Court erred in affirming the Board’s decision to deny Claimant’s PI Petition. Although the Board is permitted to interpret its own orders and rulings, the Board erred when it dismissed Claimant’s PI Petition based solely on the expert testimony presented in connection with his TTD Petition. The TTD Petition addressed the question of whether Claimant had suffered a recurrence of a total disability, and whether Claimant could return to work. The TTD Petition did not address Claimant’s degree of impairment. In this close case, we conclude that the Claimant should have the opportunity to present his evidence in a permanent impairment hearing.

Accordingly, we REVERSE and REMAND this matter to the Superior Court.

I. Relevant Facts and Procedural Background Claimant worked for DTC as a bus driver.7 On August 4, 2016, Claimant injured his left shoulder while driving on the job.8 On September 8, 2016, Claimant underwent surgery on his shoulder, which required him to be out of work for a period of time.9 DTC agreed that Claimant was injured in the course and scope of his employment and provided workers compensation disability benefits pursuant to 19 Del. C. § 2324 (“Section 2324”).

On December 5, 2016, Dr. Shaun Rinow released Claimant to light duty as a bus checker.10 Upon returning to work, Claimant alleged that his shoulder began to hurt from riding the bus. Due to the Claimant’s alleged discomfort, Dr. Rinow placed Claimant back on disability on December 7, 2016. DTC refused to pay for a recurrence of total disability at this time, and as a result, Claimant filed his TTD Petition.

A. The Temporary Total Disability Proceedings On January 17, 2017, Claimant filed his TTD Petition to determine Additional Compensation Due. On July 24, 2017, a hearing was held to decide whether he had suffered a recurrence of his shoulder disability from December 7, 2016 to June 23, 2017.

During the hearing, the Board considered live testimony from the Claimant and deposition testimony from both parties’ experts, Dr. Rinow and Dr. Tadduni.

Claimant testified that, on December 5, 2016, he was released by Dr. Rinow for light duty, which limited him to lifting no more than 10 pounds and working four hours per day. Upon returning to work as a bus checker, Claimant alleged that his shoulder began hurting from riding on the bus.11 Claimant returned to Dr. Rinow for treatment, who, again, placed him on disability until June 23, 2017.12

Dr. Rinow, a licensed and board certified chiropractor,13 testified by deposition on Claimant’s behalf. In August of 2016, Dr. Rinow began treating Claimant for shoulder symptoms related to his work incident.14 Dr. Rinow referred Claimant to Dr. Palma for surgery in order to repair a broken screw in Claimant’s left shoulder.15 After surgery, Dr. Rinow testified that Claimant had an increase in symptoms upon returning to work in December of 2016, precluding him from returning to work before June 2017.16 Dr. Rinow testified that Claimant was out of work for such a lengthy time because “[t]he shoulder is a complex joint. It takes a long time to rehab[ilitate].”17 Dr. Tadduni, a board certified orthopedic surgeon,18 testified by deposition on DTC’s behalf. Dr. Tadduni evaluated the Claimant on two occasions: first on October 13, 2016, approximately five weeks after his surgery; and again on June 22, 2017.19 As part of these evaluations, Dr. Tadduni reviewed Claimant’s medical records, diagnostic testing results, and a DART bus video depicting what had occurred on August 4, 2016.20 Dr. Tadduni testified that at the time of the first evaluation, he was unsure of the exact procedure Claimant had undergone.21 However, Dr. Tadduni testified that, had he known that Claimant’s surgery repaired a broken screw, he “would have said that [Claimant] was not going to need prolonged restriction and probably by the six-week point post surgery [Claimant would] be able to return to normal activity.”22 Thus, Dr. Tadduni concluded Claimant could return to work as he was “fully recovered and [did] not need ongoing treatment at this point.”23 Dr. Tadduni testified that Claimant was “capable of returning to work as early as December of 2016,”24 and at the very latest, Dr. Tadduni opined that Claimant could fully return to work on June 22, 2017.25 The IAB denied Claimant’s TTD Petition in its TTD Opinion dated August 7, 2017.26 The Board held that Claimant had failed to prove by a preponderance of the evidence that he had suffered a recurrence of total disability effective December 7, 2016 through June 23, 2017.27 In denying Claimant’s TTD Petition, the Board explicitly accepted Dr. Tadduni’s testimony over that of Dr. Rinow’s, and concluded that “Claimant was no longer totally disabled after December 5, 2016.”28 The ten-page “Summary of the Evidence” section of the TTD Opinion contained the testimony and opinion of both experts.29 This included Dr. Rinow’s opinion that Claimant initially had an increase in symptoms upon his return to work in December of 2016, and his belief that Claimant was “fully recovered” as of June 2017.30 This also included Dr. Tadduni’s review of Claimant’s history,31 his disagreement with Claimant’s prolonged restriction, and his opinion that “Claimant had fully recovered from the August 2016 work accident . . . .”32 The Board reiterated Dr. Tadduni’s opinions in the “Findings of Fact and Conclusions of Law” portion that Claimant had returned to “normal,” but not the statements that Claimant had fully recovered.33

B. The Permanent Impairment Proceedings On February 21, 2018, Claimant filed his PI Petition pursuant to 19 Del .C. § 2326 (“Section 2326”).34 Both parties retained experts in preparation for the hearing.35 Claimant retained Dr. Peter Bandera, and DTC retained Dr. Andrew Gelman. Both experts offered deposition testimony for use at the permanency hearing.36 Although Dr. Bandera and Dr. Gelman agreed that Claimant had some permanent impairment, they disagreed as to the extent of it.

Dr. Bandera evaluated Claimant on January 31, 2018, and found that “[h]e had pain on abduction and forward flexion at 110 degrees on the left side, which is restricted range of motion, the normal motion being approximately 180 degrees.”37 Using the Fifth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (the “AMA Guides”),38 Dr. Bandera assigned Claimant a 16% partial permanent impairment rating.39

Dr. Gelman evaluated Claimant on DTC’s behalf on June 6, 2018.40 As to Claimant’s left shoulder motion, Dr. Gelman found that Claimant’s “[f]orward flexion measured 90 degrees; abduction, 70 degrees; external rotation, 30 degrees; internal rotation, 35 degrees; extension, 30 degrees; and adduction, 30 degrees,”41 and that, “[t]hese were all restricted relative to his right shoulder.”42 Using the Sixth Edition of the AMA Guides, Dr. Gelman assigned Claimant a 3% partial permanent impairment rating.43 procedure versus isolated surgery to the clavicle region, so he clearly qualifies for a more comprehensive shoulder operation within a range of 24 to 30 percent. I gave him a lower level which is 24 percent. And I believe there is some discrepancy and actually has a typo in the Table 16-27. But I believe he qualifies for the lower end of that range, 24 percent. And then we add the restriction, range of motion, and he has pain and dysfunction on abduction, forward flexion at 110 degrees. The deficit in abduction would qualify him for 3 percent impairment, and the deficit in flexion, which is moving the arm forward, qualifies him for 5 degrees based on the pie charts of the upper extremity on page 476 and 477. So in summary, he received percent impairment for this very extensive surgery to his left shoulder, and he received an 8 percent total impairment with restriction to range of motion. That combination would essentially be 32 percent. And I downgraded him to a 16 percent based on my clinical experience.

On November 27, 2018, the Board held Claimant’s PI hearing. At the beginning of the hearing, DTC moved for dismissal, arguing that the Board had already concluded in its TTD Opinion that Claimant’s shoulder had returned to normal and that he had “fully recovered.” Without considering the deposition testimony from either Dr. Bandera or Dr. Gelman, the Board granted DTC’s motion to dismiss.44 On November 28, 2018, the Board issued the Order dismissing Claimant’s PI Petition.45 The Order stated that the Board had previously accepted Dr. Tadduni’s testimony over that of Dr. Rinow, and that it had found previously that Claimant had “fully recovered.” 46 C. The Superior Court Appeal On December 19, 2018, Claimant appealed the Board’s Order to the Superior Court, arguing that his PI Petition had been dismissed improperly. He argued that the Board lacked substantial evidence to dismiss his PI Petition because the Board failed to examine any evidence relating to his left shoulder permanency. DTC countered that the Board did not commit an error when it had determined Claimant’s injury was fully resolved because the Board was free to reasonably interpret its prior ruling.

summer of 2017, and that default equates to a 3 percent rating. Applying the Adjustment Grid Parameters as I appreciated them and as others recorded [for Claimant] back in the Summer of 2017, there would be no net adjustment and thus I concluded a 3 percent left shoulder rating attributable to that which occurred in 2016.

Id. at A207–A209 (Gelman Dep. at 13:14–15:2).

The Superior Court affirmed the Board’s decision, finding that the Board’s interpretation of its previous decision was reasonable and supported by substantial evidence.47 The court focused on Dr. Tadduni’s “fully recovered” statement, as well as his testimony that Claimant’s shoulder had “returned to normal.” In addition, the court recognized that the “fully recovered” language was not in the “Findings of Fact and Conclusions of Law” section of the TTD Opinion. Nevertheless, it concluded that the Board had the authority to interpret the findings and conclusions in the TTD Opinion so long as the interpretation was reasonable.48 The court then reasoned that substantial evidence supported affirming the Order because the Board could deduce from those statements that there was no loss of use in his shoulder, and, thus, there was no permanent impairment.49 It also noted Claimant’s expert’s testimony that Claimant was “‘100%’ by June 23[,] 2017” supported its holding.50 This appeal followed. The question Claimant presents is whether the IAB properly relied upon the expert medical testimony, presented in the context of a TTD Petition, as a basis to dismiss Claimant’s PI Petition. DTC argues that the Superior Court did not err in affirming the Order, and further contends that the decision should be affirmed based upon “law of the case” and res judicata grounds. Although this is a close case because of the deferential standard of review, we conclude that the Board erred in dismissing the PI

Petition solely on the basis of the testimony provided for the TTD Petition. We believe that Claimant should have had an opportunity to present his evidence in the PI Petition hearing. Accordingly, we reverse and remand for further proceedings.

II. Standard Of Review “The review of an Industrial Accident Board’s decision is limited to an examination of the record for errors of law and a determination of whether substantial evidence exists to support the Board’s findings of fact and conclusions of law.”51 “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”52 “It is ‘more than a scintilla but less than a preponderance of the evidence.’”53 “On appeal, this Court will not weigh the evidence, determine questions of credibility, or make its own factual findings.”54 III. Analysis A. The Board Erred in Dismissing the Claimant’s PI Petition.

We agree with Claimant that the Superior Court erred in affirming the Order because there was no permanent impairment evidence presented to the Board prior to the dismissal of his PI Petition, and thus, the Board’s decision to deny that petition was unsupported. As the TTD Petition and PI Petition address different issues, the Board erred in relying on testimony from the TTD Petition as the sole basis for dismissing the PI Petition.

In its Order dismissing the PI Petition, the Board stated in the recitals: WHEREAS, after a prior Hearing in this case on July 24, 2017, the Board issued a decision dated August 7, 2017 in which it accepted Dr. Tadduni’s testimony that the claimant had a normal left shoulder on examination and that the claimant had “fully recovered” from the August 4, 2016 work accident . . . .55 The Superior Court affirmed the Board’s decision, finding that the Board had reasonably interpreted the TTD Opinion. The court found that substantial evidence supported affirming the Order, because the Board could deduce from those statements that there was no loss of use in his shoulder, and thus there was no permanent impairment. To support its conclusion, the court also referred to Dr. Rinow’s statement that Claimant “was ‘100%’ by June 23[,] 2017.”56 As an initial matter, we are not troubled that Dr. Tadduni’s testimony that Claimant “fully recovered” is not contained in the “Findings of Fact and Conclusions of Law” section of the TTD Opinion.57 It is within the Board’s discretion to interpret its own rules and orders so long as the interpretation is reasonable.58 “[A]lthough the reasoning of the Board must be apparent, ‘where the testimony has been explained as part of the preface to the findings of fact and law and where the Board’s decision contains the appropriate details which led to its reasoning, this Court will not reverse simply because the Board did not repeat those facts in its “Findings.”’”59 Thus, the Board could look to the “fully recovered” language and any other language in the decision to support its reasoning that Claimant did not suffer from a permanent impairment.

However, we hold that it was error for the Board and the Superior Court to rule that Claimant did not suffer from a permanent impairment based on the “fully recovered” language in the TTD Opinion. Claims for compensation asserted in a TTD Petition and a PI Petition differ in an important way. We have previously observed that, “[w]hether an industrial accident caused temporary total disability or permanent partial disability are two totally distinct questions.”60 When a claimant petitions the Board for permanent impairment compensation under Section 2326, “he or she has the burden of proving the percentage of permanent impairment.”61 On the other hand, when a claimant petitions for total disability compensation under Section 2324, the question is whether the claimant was disabled from working for a period of time.62 The question before the Board in the TTD Petition was whether Claimant had suffered a recurrence of a total disability, and the experts testified in terms of whether Claimant was able to return to work. Although there was some testimony that Claimant’s shoulder injury was “fully recovered” and back to “normal” in the TTD hearing, that testimony related to whether there had been a recurrence of total disability and whether Claimant could return to work. The nature of the inquiry in the TTD hearing was not whether, and to what degree, Claimant may have suffered from a permanent impairment.

DTC argues that the IAB is free to choose between conflicting medical opinions, and it is the Board’s function to resolve conflicts in medical testimony. The problem with DTC’s argument is that the Board never considered the expert testimony regarding the degree of Claimant’s permanent impairment from the experts. Instead, it dismissed the PI

Petition at the outset.63 Thus, under these circumstances, we agree with the Claimant that there is a lack of substantial evidence in the record to support a finding that Claimant does not suffer from a permanent impairment.

B. Neither the Law of the Case Doctrine nor Res Judicata Bars Claimant’s Petition for Permanent Impairment.

DTC argues both the law of the case doctrine and res judicata bar Claimant’s PI Petition. We disagree. The law of the case “is established when a specific legal principle is applied to an issue presented by facts which remain constant throughout the subsequent course of the same litigation.”64 It is a “self-imposed restriction that prohibits courts from revisiting issues previously decided, with the intent to promote ‘efficiency, finality, stability and respect for the judicial system.’”65 The doctrine “presumes a hearing on the merits and only applies to issues the court actually decided.”66 Similarly, res judicata applies if “1) the court making the prior adjudication had jurisdiction, 2) the parties in the present action are either the same parties or in privity with the parties from the prior adjudication, 3) the cause of action [is] the same in both cases or the issues decided in the prior action [are] the same as those raised in the present case, 4) the issues in the prior action [were] decided adversely to the plaintiff's contentions in the instant case, and 5) the prior adjudication [was] final.”67 In order for either to apply, the previously resolved issue must be the same.

However, as explained above, Claimant’s claim for temporary total disability and his claim for permanent impairment required examining different, albeit related, issues. Although both parties retained experts in connection with the permanent impairment hearing, both experts were deposed, and both testified that there was at least some measure of permanent impairment, the Board never heard any evidence on the issue of permanent impairment.

Accordingly, the law of the case doctrine and res judicata do not apply here.

IV. Conclusion For the foregoing reasons, we REVERSE the decision below and REMAND this matter to the Superior Court for further proceedings consistent with this opinion.