Ferrell v. City of Wilmington

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

COREY FERRELL, )
)
Claimant-Below, )
Appellant, )
)
v. ) C.A. No. N24A-08-004 CEB
)
CITY OF WILMINGTON, )
)
Employer-Below, )
Appellee. )

Submitted: December 16, 2024
Decided: March 10, 2025

MEMORANDUM OPINION

Upon Appellant’s Appeal
AFFIRMED.

James Gaspero, Esquire, Nitsche & Fredricks, LLC, Wilmington, Delaware.
Attorney for Appellant.

Gregory P. Skolnik, Esquire, Heckler & Frabizzo, Wilmington, Delaware. Attorney
for Appellee.

BUTLER, R. J.
INTRODUCTION

The following is the Court’s ruling on an appeal filed by Corey Ferrell

(“Claimant”) in a dispute before the Delaware Industrial Accident Board (“the

Board”) involving his work as a Wilmington firefighter. For the reasons that follow,

the decision of the Board will be affirmed.

FACTS

1. 2015 accident and treatment

In 2015, Claimant was working as a firefighter for the Belvedere Fire

Company when he was involved in a work-related motor vehicle accident. He

suffered a back injury and was treated by doctors. He had an MRI , which reflected

several bulges and hernias in his thoracic and cervical spine. He made a claim for

worker’s compensation. After undergoing various treatments, in 2016, Dr. Bandera

assessed a 10% permanency due to his spinal injuries.1

In 2018, Claimant and the worker’s compensation insurer agreed to a

“commutation” of his claim – the worker’s compensation equivalent to a settlement

and release. 2 That commutation included an agreement that Claimant was waiving

1
D.I. 1 Ex. A. Induct. Accident Bd.’s Decision on Pet. to Determine Compensation Due at 8 (May
6, 2024), Trans. ID 74127816 [hereinafter IAB’s Decision].
2
D.I. 16 Appellee’s Answering Br. on Appeal at 9 (Dec. 9, 2024), Trans. ID 75172425 [hereinafter
Appellee’s Answering Br.].

2
all claims for any future benefits from the insurer arising from the injuries he

received in 2015.3

2. October 6, 2023: an “untoward incident”

On October 6, 2023, Claimant was now working as a firefighter for the City

of Wilmington Fire Company. He and his crew responded to a call for service and

was required to climb a staircase. He was also laden with his own equipment as well

as two additional “high rise packs” that weigh about 30-40 pounds each. 4 While

climbing the stairs, Claimant became short of breath, experienced chest pains, and

there was concern that he was having a cardiac event. Back at the station, he felt

pain in his back and had “spasms.” 5 EMTs came and brought him to the hospital for

testing.

Luckily, it was not a cardiac event and Claimant was released to see his family

doctor to follow up. He continued to experience pain in his back. His family

physician ordered an MRI of his spine, medication, and chiropractic therapy. The

doctor eventually cleared him to return to work in March, 2024. 6

3
Id.
4
D.I. 15 Appellant’s Opening Br. on Appeal at 4 (Nov. 18, 2024), Trans. ID 75032982 [hereinafter
Appellant’s Opening Br.].
5
Id. at 4.
6
Id. at 6.

3
Claimant filed a Petition under the Worker’s Compensation Act. The

employer hired an expert witness, voluminous medical records were secured, and

the matter was heard by the Board.

After hearing the testimony of the Claimant, his family physician and the

employer’s medical expert witness, the Board ruled that the Claimant had failed to

sustain his burden of proving that the October 6, 2023 incident caused a new injury

for which compensation was due.7 Rather, the Board ruled that the condition he

experienced in October 2023 was a recurrence of the spinal injury he suffered in the

2015 automobile accident.8 The Board ruled that the 2023 incident was insufficient

to break the chain of causation from the prior incident so as to impose liability on

the second (current) employer. 9

STANDARD OF REVIEW

On an appeal from the Board, the court determines 1) whether the Board’s

conclusions are supported by substantial evidence; and 2) whether the Board’

conclusions are free from legal error.10 Substantial evidence means “relevant

7
IAB’s Decision. at 17.
8
Id. at 17-18.
9
Id.
10
Stevens v. State, 802 A.2d 939, 944 (Del. Super. 2002) (citing General Motors Corp. v. Freeman,
164 A.2d 686, 688 (Del.1960)).

4
evidence as a reasonable mind might accept as adequate to support a conclusion.”11

But the court does “not weigh evidence, determine questions of credibility, or make

its own factual findings.”12 The court reviews questions of law de novo.13

ANALYSIS

1. “Aggravation” and “Recurrence”

The casual reader would do well to understand at the outset that the lexicon

of worker’s compensation cases makes a critical distinction between “aggravation”

of a preexisting condition and “recurrence” of a preexisting condition. Aggravation

connotes a change in the mechanics of the condition such that we arrive at a different

condition than before. 14 The condition itself must change, not simply its perception

as reported by the claimant.15

11
Scheers v. Inder. Newspaper, 2003 WL 1888842, at *1 (Del. Super. Mar. 31, 2003), aff'd in part,
remanded in part sub nom. Scheers v. Indes. Newspapers, 832 A.2d 1244 (Del. 2003) (quoting
Oceanport Industries, Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del.1994)).
12
Bullock v. K-Mart Corp., 1995 WL 339025, at *2 (Del. Super. May 5, 1995) (citing Johnson v.
Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
13
Bayada Home Healthcare v. Shaw-Hicks, 2024 WL 5200101, at *2 (Del. Super. Dec. 23, 2024)
(citing Delaware Bay Surgical Servs., P.C. v. Swier, 900 A.2d 646, 652 (Del. 2006)).
14
Parson v. City of Wilmington, 2013 WL 297960, at *1 (Del. Super. Jan. 24, 2013) (quoting
Webster's Ninth New Collegiate Dictionary, 64 (1990)) (noted that aggravation “means that a
condition is ‘made worse, more serious, or more severe.’”).
15
Turulski Custom Woodworking v. Sun Dog Cabinetry, 2004 WL 1172884, at *6 (Del. Super. May
11, 2004) (citing Standard Distrib. Co. v. Nally, 630 A.2d 640, 645 (Del.1993).

5
When a preexisting condition is aggravated as a result of a workplace event,

it is considered a compensable accident. 16 On the other hand, if the previous

condition has not changed as a result of a workplace incident, but the claimant’s

perception of it has – usually by experiencing pain at its locus – it is not an “accident”

under the statute such that compensation is available.17 So to qualify as an accident,

the “untoward workplace event” must cause a change in the physical condition of

the claimant. 18

Claimant here explained in his testimony that he was carrying multiple high-

rise bags up the stairs and experienced chest pains.19 Later, he experienced back

pains, emanating from the same locus as the site of his previous workplace injury in

2015. Were these back pains an “aggravation” of his previous condition for which

he is entitled to compensation? Or were they simply a “recurrence” of the back pain

stemming from the injury he suffered in the workplace incident in 2015? Needless

to say, resolution of this tricky question requires consideration of the medical history

of the 2015 injury and treatment as well as consideration of the divergent expert

16
State v. Neff, 2003 WL 22064099, at *3 (Del. Super. Sept. 3, 2003), aff'd, 842 A.2d 1244 (Del.
2004).
17
Steen v. State, 1997 WL 33442119, at *4 (Del. Super. Apr. 22, 1997).
18
Barkley v. Johnson Controls, 2003 WL 187278, at *2 (Del. Super. Jan. 27, 2003).
19
IAB’s Decision at 3.
6
opinions of his MRIs in 2023 after his more recent episode.

2. The Board applied the proper legal standard

On appeal, Claimant contends that the Board erred by applying the

aggravation/recurrence framework in Standard Distribution Co. v. Nally.20 Claimant

instead argues that the Board should have applied the “usual exertion” standard of

Duvall v. Charles Connell Roofing.21

In Duvall, a roofer who was born with spondylolisthesis – a condition that

creates a predisposition for lower-back problems – regularly lifted 80-pound bundles

of roofing materials off a mechanized ladder for his work. 22 All of that lifting

eventually resulted in the roofer developing acute lumbar strain and orders to get out

of the roofing business.23 The roofer petitioned for compensation from the Board,

but the Board denied the claim24 because at the time Delaware law only allowed

workers compensation for injuries that occurred as a result of “unusual exertion,”

regardless of the claimant’s preexisting conditions.25

20
Appellant’s Opening Br. at 11; see also Standard Distrib. Co. Through Pennsylvania Mfrs. Ass'n
Ins. Co. v. Nally, 630 A.2d 640, 645 (Del. 1993).
21
Appellant’s Opening Br. at 11-12; see also Duvall v. Charles Connell Roofing, 564 A.2d 1132,
1133 (Del. 1989).
22
Duvall, 564 A.2d at 1133.
23
Id.
24
Id.
25
General Motors Corporation v. Veasey, 371 A.2d 1074, 1074-76 (Del. 1977).
7
On appeal, the Delaware Supreme Court in Duvall abrogated the “unusual

exertion” rule and held that a claimant with a preexisting condition could recover for

“usual exertion” on the job.26 To be clear, the Duvall “usual exertion” rule is limited

to those cases where the claimant alleges that entitlement to compensation is

predicated on the aggravation of a preexisting condition that is not tied to an

identifiable industrial accident. 27 On the other hand, if “there is an identifiable

industrial accident, the compensability of any resultant injury must be determined

exclusively by an application of the ‘but for’ standard of proximate cause.”28

Claimant here did not allege that he was engaged in his routine occupational duties.

Rather, he pegged his claim to a specific, identified incident in which he was carrying

multiple high-rise packs up some stairs. And Duvall’s injury was unquestionably a

different injury from his genetic condition. The issue of recurrence/aggravation was

not even considered in Duvall. Duvall is therefore an inappropriate tool for analyzing

the issue here.

26
Duvall, 564 A.2d at 1136.
27
State v. Steen, 719 A.2d 930, 932 (Del. 1998) (citing Duvall, 564 A.2d at 1136).
28
Hoffecker v. Lexus of Wilmington, 36 A.3d 349, 349 (Del. 2012) (citing Sheen, 719 A.2d at 932;
Duvall, 564 A.2d at 1136).
8
3. The Board’s reliance on Nally

In its decision below, the Board used the principles set forth by the Supreme

Court in a decision rendered several years after the Duvall case: Nally. 29

Nally worked for Standard Distributing on a beer truck, making deliveries.

He injured his “lower back and right thigh” when some cases of beer fell off the

truck on him. He was disabled for several months and restricted to light duty for

several more. He received compensation through Northbrook, Standard’s worker’s

compensation insurer at the time. All of this passed without controversy.

About one year after his first injury, again back at work on a beer truck, Nally

was again injured, this time while handling a keg of beer – work that while heavy,

was concededly part of his normal work duties. He again injured his lower back and

right thigh. By now, however, Standard’s worker’s comp insurer was PMA. 30

So as discussed earlier, the first question was whether this injury was a

“recurrence” related to the first injury for which he received benefits, or an

“aggravation,” or new injury, entitling him to a new round of benefits.31 If this was

29
IAB’s Decision at 14 (citing Nally, 630 A.2d at 645-46).
30
Nally, 630 A.2d at 644.
31
Id. at 643-44.

9
a recurrence, Northbrook, the insurer at the time of the first injury, was “on the risk”

and if it was a new injury – or an aggravation – PMA was. 32

As might be expected in such a case, the battle of expert witnesses and detailed

medical testimony on Nally’s condition before and after the second incident was

center stage. After a detailed review of all the medical evidence, the Board

concluded that the second incident “did not involve sufficient untoward activity to

cause a new injury and could not be deemed an intervening event.”33 The Board

therefore ruled that any claim for benefits should be a claim against the insurer at

the time of the first injury, the one that caused the injury that recurred at the time of

the second claim for worker’s compensation.34

Claimant here calls Nally a “successor liability” decision, one that belongs in

that universe of comp claims limited to sorting out which insurer is liable on a claim

arising from a preexisting condition created by a previously compensated workplace

accident.35 The Court does not think so. When the same carrier insures both the

first and second injuries, the carrier is unlikely to litigate the recurrence/aggravation

32
Id. at 644.
33
Id.
34
Id.
35
Appellant’s Opening Br. at 11 (“It is Claimant’s position herein that without the earlier carrier
being a party to the case, Nally does not apply.”).

10
issue, since it is the same carrier that assumes the liability either way. Successor

liability is one way the aggravation/recurrence question may come to the Board. But

successor liability does not define a different mode of solving the

aggravation/recurrence riddle.

For example, in Woodward v. UE&C Catalytic,36 the Court analyzed an

aggravation/recurrence dispute involving a single employer and, apparently, insurer.

As here, the employee claimed a new injury but failed to convince the Board that it

was not simply a recurrence from a previously compensated one. 37 Tracking many

of the same arguments made by Claimant here, the Court affirmed the Board’s

findings. 38 Clearly, the analysis is unaffected by who is insuring the loss.

The aggravation/recurrence debate can only be resolved as the Board does

what it did here: delve into the medical records and expert testimony in detail to

determine whether the later injury is sufficiently distinguished from the previous one

to be called a new or aggravated injury. The Court finds that the Board’s decision is

free from legal error.

36
2001 WL 946526, at *1 (Del. Super. Aug. 14, 2001).
37
Id. at *5.
38
Id. at *6.
11
4. The Board’s findings were supported by substantial evidence

It would unduly prolong this Opinion to walk the reader through each bit of

medical history and expert testimony in the record and presented to the Board. The

following are the salient features.

In 2015, when Claimant was injured while working for the Bellevue Fire

Company, his injury was to his back. An MRI in 2015 showed “broad based disc

herniations at T6-T7, T7-T8, and T8-T9, as well as bulges at T9-T10 and T10-T11,

and a disc protrusion at T5-T6.”39 Claimant’s 2015 injuries were eventually

determined by an expert to be permanent and he was given a 10% permanency in

2016. 40

The medical evidence from his 2023 claim was brought to the Board through

claimant’s family physician, Dr. Tucker. 41 Claimant was initially administered pain

medications and then sent for an MRI and chiropractic treatment. A December, 2023

MRI showed “broad based disc herniation at T6-T7, T7-T8 and T8-T9. It also

showed disc bulges at T9-T10 and T10-T11 and a disc protrusion at T5-T6.” 42

39
Appellant’s Opening Br. at 5.
40
IAB’s Decision at 8.
41
Id. at 5.
42
Appellant’s Opening Br. at 5.

12
The employer presented Dr. Matz, who both examined the Claimant and

conducted a full review of all of the medical history. His testimony was clearly

considered significant to the Board as it is reviewed in detail it its opinion. The

Board summarized his opinion, saying:

Dr. Matz noted for the Board that on the morning of October 6, 2023,
Claimant’s thoracic spine was not normal; Claimant’s medical records
clearly show a prior injury to Claimant’s thoracic spine for which his then-
treating doctor gave him a permanency rating of ten percent in 2016.
Claimant had at least two MRIs taken of his thoracic spine before October
2023 and both of those MRIs showed degenerative changes in the thoracic
spine. According to Dr. Matz, the kinds of symptoms and complaints of
back pain about which Claimant began complaining on October 6, 2023,
and later, are consistent with what one would expect from the injuries
which Claimant sustained well before October 2023 and Claimant’s
slowly progressive thoracic disc disease. 43

The Board is free to accept whatever expert testimony it wishes in making its

determination.44 On appeal, the “the reviewing court does not sit as a trier of fact

with authority to weigh the evidence, determine questions of credibility, and make

its own factual findings and conclusions” because those functions are “reserved for

the Board.”45 In this case, the Board clearly endorsed the view of Dr. Matz in

43
IAB’s Decision at 12-13.
44
“Weighing the evidence, determining the credibility of witnesses, and resolving any conflicts in
the testimony are functions reserved exclusively for the Board.” Powell v. OTAC, Inc., 223 A.3d
864, 870 (Del. 2019) (quoting Noel-Liszkiewicz v. La-Z-Boy, 68 A.3d 188, 191 (Del. 2013)).
45
Opportunity Ctr., Inc. v. Jamison, 940 A.2d 946 (Del. 2007) (quoting Johnson v. Chrysler Corp.,
213 A.2d 64, 66 (Del. 1965)).

13
concluding that Claimant suffered a recurrence of his preexisting spinal maladies,

not a new injury and not an aggravation of his previous injury.46

Finally, Claimant raises the Board’s comment that there was “no intervening

event” on October 6, 2023. Claimant argues that this is a credibility determination

on Claimant’s version of what happened and the Board failed to justify its finding

that Claimant lacked credibility. The Court believes Claimant places too much

emphasis on “no event” and not enough on “intervening.”

In discussing the Nally Opinion, on which the Board relied, the Board referred

several times to the Nally requirement that the chain of causation from a preexisting

condition may only be broken by a new injury or aggravation brought about by “an

intervening or untoward event which could be deemed the proximate cause of the

new condition.” 47 Thus, the Board was not merely concerned with whether an

“event” happened – we can safely assume one did. The Board’s concern was with

whether the event was an “intervening event” within the meaning of Nally – one that

breaks the chain of causation from the prior injury and presents a new “accident”

within the meaning of the enabling legislation. It may have been neater for the Board

to say there was “no intervening event that broke the chain of causation,” but we

46
“Claimant did not meet his burden of proof. The Board agrees with Dr. Matz.” IAB’s Decision
at 17.
47
Id. at 14 (quoting Nally 630 A.2d at 646).

14
who are now schooled in the “quagmire”48 of recurrence and aggravation understand

the Board’s conclusion. Claimant was simply unable to meet his burden of proving

that the October incident produced a consequence sufficient to break the chain of

causation from the previous injury. The Board’s conclusions were supported by

substantial evidence.

CONCLUSION

For all of the foregoing reasons, the decision of the Industrial Accident Board

is AFFIRMED.

IT IS SO ORDERED.

/s/ Charles E. Butler
Charles E. Butler, Resident Judge

48
Parson, 2013 WL 297960 at *4 (in granting reargument and reversing itself, the Court rued the
confusion in application of the Duvall and Nally standards, calling it a “legal quagmire.”).

15