Smith v. Wells Fargo Bank, N.A.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
KELLY SMITH, )
)
Appellant )
)
v. ) C.A. No.: N25A-04-008 SSA
)
WELLS FARGO BANK, N.A., )
)
Appellee )

Submitted: October 15, 2025
Decided: January 6, 2026

MEMORANDUM OPINION AND ORDER
The parties appeared before the Industrial Accident Board seeking a de novo

determination after a Utilization Review of the “reasonableness and necessity of

the recommended … surgery to the cervical spine.”1 The dispute in this case

involves the appropriate diagnosis; Employer’s expert determined Claimant suffers

cervical radiculopathy, while Claimant’s expert found cervical instability. Both

experts appear to agree surgery would be reasonable if the diagnosis is cervical

instability. Ultimately, the Board accepted the opinion of the Employer’s expert;

however, it appears complete medical records were not supplied to this expert.

Specifically, employer’s expert never saw the X-ray central to the opinion of

1
Smith v. Wells Fargo Bank, N.A., IAB Hearing No. 1541035 (Mar. 19, 2024), at 3. The
shoulder procedure is not subject to this appeal.
Claimant’s expert. Because the Board’s decision does not address that significant

issue, the Court must remand the matter.

Factual and Procedural History

Kelly Smith was injured at work in 2023.2 She received medical treatment.

On August 21, 2024, Claimant was first seen by Dr. Eskander, at which time she

underwent an X-ray. Dr. Eskander also reviewed a prior MRI study. The X-ray

results were added to the medical records as an addendum. That X-ray noted 12

degrees and 4 mm of instability on flexion and extension. As a result, Dr.

Eskander recommended surgical intervention and fusion. Surgery took place on

September 4, 2024. This Court has been provided a copy of an Addendum from

Dr. Eskander which is dated August 22, 2024, and details “X-rays with 12 degrees

and 4 mm of instability noted upon flexion and extension.”3

Employer sought a Utilization Review 4 as to this procedure on October 15,

2024. The Utilization Review determined this surgical intervention was not

2
This case came before the Board as a de novo appeal of a Utilization Review determination,
whose “purpose … shall be the prompt resolution of issues related to treatment … for those
claims which have been acknowledged to be compensable.” See 19 Del. C. § 2322F(j).
3
See Claimant-Below/Appellant’s App. to Opening Br. on Appeal, D.I. 12, at 367.
4
“Utilization review provides a mechanism for employers and their workers’ compensation
carriers to challenge proposed and provided health care services relating to compensable work
injuries.” This and That Servs. Co. Inc. v. Nieves, 303 A.3d 1220, 1223 (Del. 2023) citing 19
Del. C. § 2322F. The purpose of a utilization review is “to evaluate the quality, reasonableness
and/or necessity of proposed or provided health-care services for acknowledged compensable
claims.” This and That Servs. Co., 303 A.3d at 1228.
reasonable or necessary. 5 The letter decision on Utilization Review for this

procedure focused on cervical radiculopathy. The decision on Utilization Review

does not reference cervical instability, even as it discusses Dr. Eskander’s findings.

The Utilization Review was appealed to the Board with a hearing which took place

on February 25, 2025.

The parties stipulated that Claimant’s injuries were work-related. 6 Relevant

for this appeal, the “only issue for the Board is the reasonableness and necessity of

the surgery to the cervical spine….”7 On this issue, Claimant bears the burden of

proof.

Testimony and Arguments Before the Board

Dr. Eskander is an orthopedic surgeon who specializes in spine surgery.8 Dr.

Eskander saw Claimant and she described “pain in the neck that radiates to the

right arm.”9 During the initial visit, Dr. Eskander reviewed past imaging studies

and took X-rays.10 Dr. Eskander testified that during the spine surgery, he noted

“the level was unstable so the bones were moving abnormally, and that was pretty

5
See id. at 368.
6
Stipulation of Facts, D.I. 19, at 1.
7
Id. at 2.
8
Dep. Eskander, D.I. 12, at4.
9
Id. at 6. {Eskander dep. test]
10
Id. at 7–8.
revealing for what we had seen on the X-ray.… that was kind of the main finding

that was noted during the surgery.”11

Dr. Schwartz, also an orthopedic surgeon, was deposed by telephone just a

few days after Dr. Eskander. When asked about Dr. Eskander’s addendum

referencing the X-ray on direct examination, Dr. Schwartz stated:

Well, I find that very interesting because I believe that’s going to be
the focus of some of my questioning by opposing counsel. First of all,
I never had that record, which is surprising to me, when I initially got
my documentation. I only see that record when I received more
information from you recently….12

This issue arose again, as predicted, on cross-examination:

Q. I want to talk to you about the initial visit with Dr. Eskander and
his review of the x-rays that showed instability on flexion and
extension. You said you did not review any of those reports or
studies, correct?
A. Yes, that’s correct.
Q. Okay. But you had this record when you evaluated Ms. Smith in
January of 2025, correct?
A. I don’t believe so. I didn’t have it at the time of my June 20th,
2024, and I believe I just got it recently….
Q. But, Doctor, it’s the first record of Dr. Eskander. It’s the one
you’ve talked about. It’s in that record.
A. My original package did not have that record….This addendum
note was not in my original package.13

11
Id. at 33.
12
Id. at45.
13
Id. at 97–98.
Dr. Schwartz received the addendum note, which formed the entire basis of

Dr. Eskander’s opinion on cervical instability on the same day as his deposition.14

During his deposition, Dr. Schwartz stated “[t]here’s no evidence of acute cervical

instability. He [Dr. Eskander] doesn’t document it in his original record that I

have.”15 Dr. Schwartz also testified: “his [Dr. Eskander] original note from August

21, 2024, for which he recommends the surgery, is absent of any information on

cervical instability. He then has that note and then he does do surgery, but his

surgical pre-op and postoperative diagnosis is nothing to do with cervical

instability….” 16

Dr. Schwartz referenced a post-surgical note from Dr. Eskander linking the

reason for the surgery to cervical radiculopathy. 17 This confusion continued as Dr.

Schwartz testified and it became clear he never saw the X-ray forming the basis of

Dr. Eskander’s opinion:

Q: Sir, it’s on the record from August 21. It’s not a separate note.
A. It is not. It is – it’s noted as an addendum. I – that’s all I could tell
you. It wasn’t in my original package.
Q. It says addendum, August 22nd, 2024. So it’s the next day, and its
attached to – it’s not attached, it’s in the actual August 21 note, right?
A. Again, Mr. Fredericks, it’s not in the record that was sent to me. I
have a two-page record from August 21, 2024, and that addendum
was never sent to me at the time of my original evaluation.
14
Id. at 47 (“I don’t know what to make of this. Again, it came to me just recently.”). See also
id. at 99 (“I believe I got the depo package, which included that – well, I had it mailed to me, but
I got the final complete package earlier this morning.”).
15
See id. at 100.
16
See id. at 102.
17
See id. at 49.
Q. Okay. When you got this note, did you reach out this [sic] Mr.
Davis and say, Mr. Davis, I need to see these x-rays because
instability in the cervical spine can justify a surgery?
A. Again, I noticed it earlier, I believe yesterday, and we talked about
the fact that I believe that you were going to bring this up as a crucial
part of your questions to me, but I don’t have those films.18

Dr. Schwartz acknowledged that instability could be a reason for spine

surgery. 19 The presentation of evidence before the Board on this issue was entirely

based on the deposition testimony of these two doctors.

The Board’s Finding

The Board found that the cervical fusion surgery was not reasonable or

necessary. In summarizing Dr. Eskander’s testimony, the Board stated “Dr.

Eskander considered the X-ray findings showing instability were more significant

than the MRI findings showing darkening of the disc at the C5-6 level.”20 As for

Dr. Schwartz, the Board summarized his testimony related to cervical instability,

acknowledging “Dr. Schwartz did not see Dr. Eskander’s Addendum first

indicating instability of up to 12 degrees at the C-5-C6 level until he received the

documentation before his second evaluation of Claimant.… Before the addendum,

nothing about instability was recorded.” 21

18
See id. at 97–98.
19
Id. at 99. See also id. at 108 *“[I]f there’s instability producing radicular pain with extension
of the neck, sure, that would be potentially reasonable.”).
20
Smith v. Wells Fargo Bank, N.A., IAB Hearing No. 1541035 (Mar. 19, 2024), at9.
21
Id. at 16.
Regarding Dr. Eskander and cervical instability, the Board found “the listed

surgical pre-op and postoperative diagnoses have nothing to do with cervical

instability of the spine but mentioned cervical radiculopathy.”22 The Board went

on to detail Dr. Schwartz’s testimony regarding a lack of notation in the records

demonstrating cervical instability. Next, the Board addressed the lack of objective

findings for cervical radiculopathy. Then, the Board concluded it would accept the

opinion of Dr. Schwartz over Dr. Eskander in finding this surgery was not

reasonable or necessary.

Claimant moved for reargument. Claimant asserted that the Board’s

decision focused only on cervical radiculopathy and did not make any finding as to

cervical instability. Employer opposed. In part, Employer argued Dr. Eskander’s

operative note did not mention instability as an indication for surgery. The Board

denied the motion to reargue, finding “[a]lthough Dr. Eskander testified[] he was

concerned about instability during Claimant August 21, 2024 visit, the record of

that date does not mention instability.”23 This appeal followed, with Claimant

asserting the Board failed to comply with its “statutory duty of making a

22
Id. at 22.
23
Smith v. Wells Fargo Bank, N.A., Order on Employer’s Mot. for Reargument, IAB Hearing No.
1541035 (Apr. 16, 2025), at 2.
determination on an undisputed issue presented at the hearing” 24 and that the

Board’s decision is not supported by substantial evidence.

Standard of Review on Appeal from the Industrial Accident Board

“[T]he sole function of the Superior Court….is to determine whether or not

there was substantial competent evidence to support the finding of the Board, and,

if it finds such in the record, to affirm the findings of the Board.” 25 “Only where

there is no satisfactory proof in support of a factual finding of the Board may the

Superior Court, or this Court for that matter, overturn it.”26 “If there is substantial

supporting evidence for the Board’s decision and no mistake in law, the decision

will be affirmed.” 27 The Delaware Supreme Court has made it clear that

“[s]ubstantial evidence means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” 28

On appeal, “this Court will not weigh the evidence, determine questions of

credibility, or make its own factual findings.” 29 However, where the Board fails to

make adequate subordinate findings to support its ultimate conclusion, the Court

24
Claimant-Below/Appellant’s Opening Br. on Appeal, D.I. 12, at 1.
25
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
26
Id. at 67.
27
Turner v. Bennett’s Action Glass, 1998 WL 733763, at *2 (Del. Super.) citing Longobardi v.
Unemployment Ins. Appeal Bd., 287 A.2d 690, 692 (Del. Super. 1971).
28
This and That Servs. Co. Inc. v. Nieves, 303 A.3d 1220, 1226 (Del. 2023) quoting Christiana
Care Health Servs. v. Davis, 127 A.3d 391, 394 (Del. 2015).
29
Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009).
will reverse. 30 This Court will only find an abuse of discretion sufficient to reverse

the Board if the decision “has ‘exceeded the bounds of reason in view of the

circumstances.’”31 Where there is a “conflict in the evidence, it [is] the duty of the

Board to determine whose testimony it deemed most worthy of credit, and to state

its conclusions of fact accordingly.” 32 In order to assess whether the Board abused

its discretion, this Court should examine whether that decision “‘exceeded the

bounds of reason in view of the circumstances, [or] so ignored recognized rules of

law or practice as to produce injustice.’”33

Analysis

According even to Dr. Schwartz, the findings described by Dr. Eskander

regarding the X-ray as to cervical instability would have been significant. It is not

clear why such significant objective information was not provided to Dr. Schwartz

for evaluation. In Zayas, the Supreme Court addressed an expert’s refusal to

answer questions regarding treatment by another doctor. The Court concluded the

expert’s “opinion was based upon an incomplete factual predicate.” 34 The

Supreme Court held that reliance on that doctor’s opinion by the Board “violated

30
Bd. of Pub. Educ. in Wilmington v. Rimlinger, 232 A.2d 98, 100 (Del. 1967).
31
Person-Gaines, 981 A.2d at 1161 citing Stanley v. Kraft Foods, Inc., 2008 WL 2410212, at *2
(Del. Super. 2008).
32
Le Tourneau v. Consol. Fisheries Co., 51 A.2d 862, 867 (Del. 1947).
33
Zayas v. Delaware, 273 A.3d 776, 786 (Del. 2022) quoting Roos Foods v. Guardado, 152 A.3d
114, 118 (Del. 2016).
34
Zayas, 273 A.3d at 788.
fundamental notions of fairness.”35 Zayas constituted extreme conduct—conduct

at a level that is certainly not present in this case.

Where there is a “conflict in the evidence, it [is] the duty of the Board to

determine whose testimony it deemed most worthy of credit, and to state its

conclusions of fact accordingly.”36 The Board expressly made a finding as to

whose opinion it would accept. However, it is unclear to the Court whether, or

how, the Board reconciled the issue of Dr. Schwartz’s inability to review the X-ray

that was central to Dr. Eskander’s opinion. To be precise, the Board noted that Dr.

Schwartz did not have the X-rays showing cervical instability.37 Significantly, the

Board’s decision states “he [Dr. Schwartz] received the final complete deposition

package the morning of his deposition when he was informed of the instability

found on the X-ray. Acute instability could be a reason for performing cervical

surgery.”38

The Board’s decision is unclear as to how it viewed Dr. Schwartz’s opinion

in light of the fact that his opinion did not account for the singular objective

measure citing cervical instability by Dr. Eskander. And, further, the decision is

unclear as to what importance the Board placed on the X-ray itself. The Board

discussed Dr. Schwartz’s testimony regarding a lack of notation by Dr. Eskander

35
Id.
36
Le Tourneau v. Consol. Fisheries Co., 51 A.2d 862, 867 (Del. 1947).
37
Smith v. Wells Fargo Bank, N.A., IAB Hearing No. 1541035 (Mar. 19, 2024), at18.
regarding cervical instability—but did not reconcile Dr. Schwartz’s testimony with

the apparent lapse of medical records provided to him.

Claimant bears the burden of proof. Dr. Schwartz was not her proffered

expert and what he relied upon to refute the opinion of Claimant’s expert is

unclear. The testimony in this case suggests the medical records may be

voluminous; therefore, the inadvertent omission of some record is conceivable.

Nevertheless, the Court is concerned with the fundamental fairness of the Board’s

reliance upon the opinion of an expert who admittedly had not seen the singular

piece of objective evidence upon which the opposing expert has relied in refuting

the reasonableness and necessity of this surgical procedure. Perhaps such reliance

is fair based on the totality of the record—but the Court cannot so conclude on this

record. For the foregoing reasons, this matter is REMANDED.

IT IS SO ORDERED.

/s/Sonia Augusthy
Judge Sonia Augusthy