Corey Berry v. MITRA QSR KNE LLC, dba Kentucky Fried Chicken, (C.A. No. K20A-08-002 JJC-Decided Feb. 16, 2021)

Superior Court affirms decision granting termination petition as being supported by substantial evidence and in so doing rejects claimant’s argument that the court should not defer to the Board’s credibility findings as the hearing was conducted virtually

This case came before the court on the claimant’s appeal from the Board’s decision granting the employer’s termination petition. During the Board’s virtual hearing, the parties stipulated that the claimant suffered a compensable work injury when he fell at work on April 24, 2019, and the injury was to the cervical spine. The parties disagreed as to the duration of disability and whether proposed treatment—neck surgery—would be necessary and reasonable.

Shortly after the work injury on May 7, 2019, the claimant saw his family physician, who released him to light-duty work. The claimant then returned to work with the employer but was later terminated for reasons unrelated to the work injury.

Aside from the claimant’s live testimony before the Board at the virtual hearing, the only other evidence consisted of medical experts on behalf of each party. This evidence showed that there were two completely divergent expert opinions. Dr. Zaslavsky, the claimant’s expert, testified that the claimant had multiple subjective symptoms consistent with cervical myelopathy. He testified that the claimant required surgery for this condition and was totally disabled. In fact, Dr. Zaslavsky felt that the claimant’s condition had progressed to the point where it would border on medical malpractice to not recommend surgery.

In contrast, Dr. Piccioni, the employer’s medical expert, testified that the claimant had only suffered a cervical strain and sprain. He pointed out that at his exam, which took place after Dr. Zaslavsky had begun treating the claimant, revealed no signs of myelopathy and that, since this is a progressive condition, the absence of such signs or symptoms consistent with that condition would make it impossible that it actually existed. Dr. Piccioni also testified that the claimant was malingering and exaggerating his symptoms and that the soft tissue injury had resolved as of May 7, 2019.

The Board’s decision finding in favor of the employer cited numerous examples of inconsistencies in the claimant’s testimony, making it not credible. This included the fact that the claimant gave testimony that conflicted with statements attributed to him in the medical records and also included the claimant’s varying descriptions as to the mechanism of the injury. The Board also commented on the fact that the claimant was self medicating with marijuana, despite instructions from Dr. Zaslavsky not to do so. The Board granted the termination petition and found that the claimant was not entitled to any compensation benefits for the work injury after May 7, 2019.

On appeal, it was claimant’s position the Board should have found the claimant credible and, based on that error, there was no substantial evidence to support the Board’s adverse decision. The court rejected this argument, stating that the record clearly contained substantial evidence to support the decision to terminate benefits and the Board properly performed its factfinder role in assessing the evidence, finding the employer’s evidence credible, but rejecting the evidence presented on behalf of the claimant.

The claimant further argued, since the Board held a virtual hearing, the court is not required to give deference on appeal to the Board’s credibility findings. The court rejected this argument out of hand and noted that the claimant cited absolutely no authority in support of this contention. The claimant also could not point to any specific difficulties with the virtual hearing, other than speculating that the Board could not adequately observe him and appreciate his body language and facial expression as it would do at a live hearing. The court emphasized that the Board, like all trial courts in Delaware, has been conducting virtual hearings during the COVID pandemic. The court concluded that, given the claimant’s failure to identify any aspect of the record to support his argument that the Board could not appropriately assess the credibility of the witnesses, they would not alter their scope of review. As a result, the court stated that they will follow the well-recognized rule that they defer to the Board’s judgment regarding issues of witness credibility.


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