Foodliner v. Scott Hidinger

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

FOODLINER, )
)
Employer-Below/Appellant, )
)
v. ) C.A. No. N25A-02-003 KMV
)
SCOTT HIDINGER, )
)
Employee-Below/Appellee. )

Submitted: June 12, 2025
Decided: September 30, 2025

MEMORANDUM OPINION

Upon Appeal from the Decision of the Industrial Accident Board
AFFIRMED.

Geoffrey S. Lockyear, TYBOUT, REDFEARN & PELL, P.A., Wilmington, DE;
Counsel for Employer-Below/Appellant.

Meghan Butters Houser, WEISS, SAVILLE, MEDINILLA & HOUSER, P.A.,
Wilmington, DE; Counsel for Claimant-Below/Appellee.

VAVALA, J.

1
I. INTRODUCTION

This is an appeal from an Industrial Accident Board decision awarding

workers’ compensation benefits to an employee for injuries he sustained in a work-

related accident. The employer’s challenge is limited to the Board’s award of

compensation for an injury to the employee’s lumbar spine/lower back with

radiculopathy into his lower leg. The Court finds the Board’s decision is well

reasoned, supported by substantial evidence, and correct as a matter of law.

Accordingly, the Board’s decision is AFFIRMED.

II. FACTS AND PROCEDURAL BACKGROUND1

It is undisputed employee-appellee Scott Hidinger (“Hidinger”) was injured

in a June 15, 2021 collision in Connecticut while driving a tractor trailer on behalf

of Employer-appellant Foodliner (the “Accident”).2 In July 2022, the Industrial

Accident Board (“Board”) determined that injuries to Hidinger’s hip, knee, and

lower extremity were caused by the Accident and, thus, compensable workers’

compensation claims.3 On May 6, 2024, Hidinger filed two additional petitions with

the Board: a Petition for Disfigurement, for permanent scars, and a Petition to

1
The facts are taken from Docket Item [“D.I.”] 6, Industrial Accident Board’s Decision dated
January 8, 2025 [“Decision”] and are based on the record developed at the November 19, 2024,
Hearing [“Hearing”], D.I. 10. Citations to the Hearing Transcript are in the form “Tr. #.”
2
Decision at 2.
3
Id. at 17.

2
Determine Additional Compensation Due, for a lumbar spine/low back injury with

radiculopathy (collectively “Petitions”).4 A hearing on the Petitions was held before

the Board on November 19, 2024 (“Board Hearing”). Hidinger, as well as

Hidinger’s and Foodliner’s medical experts, Dr. Xing and Dr. Murphy, testified via

deposition.5

By decision dated January 8, 2025, the Board found Hidinger’s disfigurement

and lumbar spine/lower back injury were caused by the Accident and awarded

compensation to him.6 Foodliner does not contest the Board’s disfigurement award,7

but appeals the Board’s determination Hidinger’s lumbar spine/lower back injuries

were caused by the Accident and its concomitant award of additional compensation.8

Hidinger does not have memory of the Accident but remembers being pulled

from the overturned truck.9 He was taken to an area hospital, bleeding from his

4
Id. at 17; Tr. 3:11-14.
5
D.I. 18, Exhibit C.
6
Decision at 24.
7
D.I. 15, Opening Brief of Employer-Appellant [“Foodliner OB”] at 4-5. Hidinger was also
awarded compensation for right lower extremity scarring, which Foodliner is not appealing.
Decision at 2.
8
Foodliner OB at 4-5.
9
Decision at 3.

3
forehead and knee10 and had 12 to 13 x-rays of various parts of his body.11 His right

and left knees became infected and eventually required surgery.12

Hidinger completed a pain evaluation at the hospital emergency room (“ER”)

in Connecticut on the day of the Accident, as well as an injury report form (“Injury

Report”) provided by Foodliner on June 22, about a week after the accident.13 On

the Injury Report, Hidinger indicated injuries to his head, left shoulder, left side,

ribs, hip, and left leg.14 Hidinger followed up with his family doctor in Delaware

the same day, and did not mention back pain as one of his symptoms;15 nor was there

mention of “any right-sided burning, stabbing or aching in the family physician’s

record, although [Hidinger] had indicated this on the pain diagram the same day.”16

On July 6, 2021, Hidinger went to an ER again, this time in Delaware,

complaining of lower back pain, pain in his right thigh, and numbness and burning

10
Id. at 3.
11
Id. at 5.
12
Id.
13
Id. at 4.
14
Id. at 5.
15
Decision at 4.
16
Id. at 14.

4
in his foot.17 After a CT scan of his low back,18 he was diagnosed with lumbar

radiculopathy and his family doctor referred him to specialist Dr. Selina Xing.19

On July 29, Hidinger met with Dr. Xing.20 She ordered x-rays of the lumbar

spine and SI joint and an EMG of the lower extremities.21 The EMG revealed a mild

acute S1 radiculopathy on the right side.22 During a follow-up with Dr. Xing on

August 24, Hidinger reported feeling the same as at his previous visit. Dr. Xing’s

diagnosis continued to be lumbar sacral radiculopathy as confirmed by the EMG.23

Dr. Xing grew concerned about Hidinger’s conservative treatment preferences

because he was still reporting pain, and “he was experiencing radiculopathy that was

interfering with his activity levels.”24 Dr. Xing suggested injections to help alleviate

some of his symptoms, but treatment for Hidinger’s lower back was interrupted

because his other injuries required more attention.25 Hidinger was hospitalized

between November and December 2021 for a right lower extremity infection, again

for left knee surgery in June 2022, and for hip replacement surgery in September

17
Decision at 7.
18
Id. at 6.
19
Id. at 3
20
Id. at 7.
21
Id.
22
Id.
23
Id.
24
Decision at 8.
25
Id.

5
2022.26 When Hidinger returned to Dr. Xing in January 2023, she started him on

injection treatments at the L5-S1 level, to which he responded well, reporting almost

80 percent relief.27

At the Hearing, Hidinger recalled driving in Connecticut on I-95 and then

being pulled out of the flipped over truck.28 He did not remember how the accident

happened or the accident itself.29 Hidinger recalled being transported to a

Connecticut emergency room where he was in a lot of pain,30 bleeding from his

forehead and left knee, and where he had a lot of x-rays performed.31 A couple of

weeks later, he began to notice pain in his lower back going down his right leg into

his right foot for which he went to the ER in Delaware on July 6, 2021.32 He

followed-up with his family doctor the next day who then referred him to Dr. Xing.

i. Dr. Xing’s Testimony

Dr. Xing deposition testimony was offered at the Board Hearing.33 She

reiterated that Hidinger was admitted to the ER in Delaware complaining of “right

26
Decision at 8.
27
Id.
28
Id.
29
Id. at 16.
30
Id.
31
Tr. at 18.
32
Id. at 20.
33
D.I. 19, Ex. C, November 4, 2024, Deposition of Selina Xing, M.D. [“Xing Dep.”]

6
thigh pain, foot numbness and mild low back pain and the foot numbness plus

burning sensation . . . [and t]hey diagnosed him [with] lumbar radiculopathy.”34 On

July 29, Dr. Xing examined Hidinger and noted the following clinical findings:

“some tenderness to palpation with muscle spasms in the lumbar spine, paraspinals,

some lumbar sacral junction, right SI joint tenderness [and] limited range of

motion.”35 She ordered various tests, such as an EMG, that were completed on

August 12, 2021, and showed “radiculopathy symptoms, mild acute radiculopathy

on the right side.”36

Hidinger returned to Dr. Xing on August 24 for a follow up and stated his pain

remained the same.37 Her assessment indicated Hidinger had lumbar sacral

radiculopathy, as confirmed by the EMG and Hidinger’s report of radicular pain

symptoms. Dr. Xing then ordered a lumbar MRI, reasoning “because the EMG

showed lumbar sacral radiculopathy . . . we order[ed an] MRI to see the details.”38

While the MRI did not indicate any radiculopathy, Dr. Xing explained, “sometimes

[there are] non-mechanical pressures to irritate the nerve and the[re] can be chemical

irritation. So that may not be exactly show[n] in the MRI findings[,] but his EMG is

34
Id. at 9.
35
Id. at 11.
36
Id. at 13.
37
Id. at 14.
38
Xing Dep. at 15.

7
pretty conclusive.”39 Dr. Xing recommended injections to reduce Hidinger’s pain

and inflammation in his back,40 but he was unable to receive them due to

hospitalizations and surgeries to address his more serious injuries from the

accident.41

Following surgeries on his hip and knee, Hidinger returned to Dr. Xing in

January 2023.42 Dr. Xing noted, “[He said he’s worse. He still complains of low

back pain . . . and at that point we started injections.”43 Dr. Xing testified Hidinger’s

response to the January 23, 2023, injections was “[g]reat;”—“he follow[ed]-up after

[the] injection and . . . reported really good response . . . almost 80 percent relief.”44

A follow up EMG was performed on April 14, and “on that EMG it only showed

sensory motor neuropathy of his lower extremity. It did not show any

radiculopathy.”45 To explain why radiculopathy showed up on Hidinger’s first

EMG, but not the second, Dr. Xing testified, “[i]t could be over the time he had

injections and he kind of calmed down some inflammation to make it healing to a

39
Id. at 16.
40
Id. at 18.
41
Id.
42
Id. at 20.
43
Id. at 20-21.
44
Xing Dep. at 21-22.
45
Id. at 22.

8
certain point it won’t show anymore.”46 Another MRI was done in August 2024,

which still showed L5-S1 facet joint arthritic changes.47 Dr. Xing noted that

Hidinger had positive responses to almost all of the injections he received.48 Dr.

Xing also pointed out there are no records that Hidinger suffered from any low back

injuries prior to the Accident.49

Dr. Xing opined that Hidinger’s low back/spinal injury with radiculopathy

was casually related to the Accident of June 15, 2021:

[B]oth his right leg pain and numbness, tingling, typically when people
experience low back pain, leg pain and numbness and tingling usually
its related to nerve issues. So from the EMG findings and his clinical
presentations and his response to injections he does carry a diagnosis
of right sided lumbar sacral radiculopathy.50

Dr. Xing incorrectly thought Hidinger marked his lower back on the initial Injury

Report pain drawing,51 but stated that Hidinger

[had] a CAT scan of his abdomen and pelvis and it showed right flank
contusion. Like initial intake from he also mark[sic] he has low back
and right leg symptoms. And he saw his primary care Dr. Sarah Mullins
and did mention about a right leg symptoms and back issues and was
diagnosed as lumbar radiculopathy. These are all before he sees me.52

46
Id.
47
Id. at 23.
48
Id.
49
Id. at 33.
50
Xing Dep. at 24-25.
51
Id. at 26. Hidinger did not indicate on the injury report that he had injured his back but did mark
that his head, left shoulder, left side, ribs, hip, and left leg were injured. Tr. at 29.
52
Xing Dep. at 28.

9
On cross-examination, Dr. Xing confirmed that Hidinger’s medical records

indicated that he is morbidly obese and such a diagnosis can cause back pain.53 The

medical records also indicated a diagnosis of peripheral vascular disease (“PVS”),

“something that can cause pain or discomfort in the legs and feet.”54 But Dr. Xing

maintained PVS presents different types of symptoms than lumbar radiculopathy.55

Dr. Xing opined “but for the June 15, 2021 motor vehicle accident at work Mr.

Hidinger would[sic] [not] have needed the treatment to the lumbar spine . . .

including the injections, the diagnostic testing as well as the chiropractic and PT”56

and “the treatment [Hidinger] has received since the work injury is reasonable,

necessary and casually related to the accident.”57

ii. Dr. Murphys Opinion

Foodliner’s expert, Dr. William Murphy, testified that it is very important to

his causation analysis to consider when a claimant’s subjective complaint of injury

is made, versus when the accident occurred.58 Regarding Hidinger’s back pain, Dr.

Murphy noted there was nothing “in the EMT report list [of] either a complaint

53
Id. at 35.
54
Id. at 36.
55
Id.
56
Id. at 33-34.
57
Id. at 34.
58
D.I. 18, November 14, 2024, Deposition of William Murphy, D.O. [“Murphy Dep.”] at 8.

10
regarding the lumbar spine or any type of diagnosis regarding the lumbar spine[.]”59

He observed that Hidinger’s family doctor had “no notes” relating to complaints or

a diagnosis involving the lumbar spine initially; rather, the complaints were

“essentially for his extremities and his injuries to his head.”60 Further, Dr. Murphy

testified how, although Hidinger was referred to orthopedic doctors for injuries to

his extremities, neither of those doctors noted complaints about the spine either.61

Prior to physically examining Hidinger, Dr. Murphy reviewed the diagnostic

studies and physicians’ notes. Dr. Murphy opined the July 6, 2021, CT scan did not

evidence recent back injury—there was “no acute fracture or post traumatic

subluxation . . . no disc herniation, no spinal stenosis or any neuroforaminal

narrowing . . . [and] no evidence of any fracture, dislocation, and any disc

abnormalities.”62 Regarding the family physician’s July 7 physical examination and

diagnosis of lumbar radiculopathy,63 Dr. Murphy disagreed stating, “that’s a normal

examination of the spine without any evidence of abnormalities referable to the

59
Id. at 10.
60
Id. at 14.
61
Id. at 15.
62
Id. at 17-18.
63
Id. at 40. See also Tr. at 62.

11
spine, including neurologic abnormalities that would be consistent with

radiculopathy.”64

After performing a physical exam of Hidinger in November 2021, Dr. Murphy

stated, “Regarding the lumbar spine, I noted that [Hidinger] had essentially full

active range of motion of the lumbar spine . . . [and he had] normal functional range

of motion, yet he complain[ed] of pain at the end of those motions.”65 He also noted

that Hidinger had no signs of muscular atrophy which can be seen in lumbar

radiculopathy.66 Dr. Murphy concluded

[t]he findings regarding the lumbar spine were normal from a
neurological and orthopedic standpoint. [Hidinger] had normal range
of motion, normal strength, normal sensation, intact reflexes, no
muscular atrophy, and negative nerve root tension signs from lumbar
nerve irritation, radiculitis, or radiculopathy that would relate to lumbar
disc disease. There were some subjective complaints of pain, but no
objective abnormalities that substantiated those complaints.67

And Dr. Murphy opined Hidinger “did not sustain an injury to the lumbar spine

referable to that incident”68 and that “if there had been some lumbar complaints

referable to th[e] incident, he would have expected contemporaneous complaints and

contemporaneous treatment at the time of the incident, particularly in the emergency

64
Decision at 54. See also Murphy Dep. at 19, 41-42.
65
Murphy Dep. at 21-22.
66
Id. at 22.
67
Id. at 23.
68
Id. at 27-28.

12
room or in the trauma center or within a short period of time of the incident.”69 Dr.

Murphy surmised Hidinger had “fully recovered from any and all injuries related to

the work by the time he saw him in November 2021.”70

iii. The Board’s Decision and Findings of Fact

The Board determined Hidinger established his lumbar spine/low back injury,

with radiculopathy into the right lower extremity, was caused by the Accident and

granted Hidinger’s Petition for additional compensation.71 In pertinent part, the

Board stated

[t]he initial imaging report from the hospital showed a CT scan of the
chest, abdomen and pelvis. There was a soft tissue contusion in the right
flank area. That indicates he definitely has a direct hit into the right side
of the back. The mechanism is consistent with the low back injury
itself.72

The Board credited Hidinger’s testimony and found “Dr. Xing to be most convincing

regarding causation of [Hidinger]’s low back and right lower extremity

radiculopathy condition.”73

Regarding the absence of complaints of back pain in the initial medical

records, the Board reasoned that a patient presenting in an ER with emergent injuries,

69
Id. at 29.
70
Decision at 10.
71
Id. at 24. The Board also awarded eight weeks of compensation for disfigurement. Foodliner
does not challenge this award.
72
Decision at 10.
73
Id. at 16.

13
including pain, bleeding, and loss of consciousness might not have back pain at the

forefront his mind.74 Specifically, the Board stated that:

[Hidinger] was credible that he initially was in a lot of pain in various
areas of the body, which likely delayed the recognition of trouble in and
the focus of treatment of the low back. It was only in early July 2021
that he first learned that the low back was the cause of his right leg
radicular symptoms . . . [T]he Board did not feel that a three-week
delay in reporting low back or lower extremity radiculopathy symptoms
was unreasonable under circumstances where [Hidinger] had a
multitude of symptoms involving various body parts to be sorted out
following this work incident, including at least four more urgent bodily
issues.75

Accordingly, the Board held “[a]fter a through review of the evidence, [Hidinger]

has met his burden to show that he suffered a lumbar spine injury with radiculopathy

in relation to the work accident.”76

III. STANDARD OF REVIEW

The Superior Court exercises “appellate jurisdiction over final agency

decisions under 29 Del. C. § 10142.”77 This Court’s “review of an Industrial

Accident Board’s decision is limited to an examination of the record for errors of

74
Id. at 18.
75
Id.
76
Id. at 15-16.
77
Quality Assured Inc. v. David, 2022 WL 17442738 (Del. Super. Dec. 6, 2022).

14
law and a determination of whether substantial evidence exists to support the

Board’s findings of fact and conclusions of law.”78

This Court reviews the Board’s legal conclusions de novo for errors in

formulating or applying legal precepts.79 The construction of a state statute is a

legal issue.80 “If there is no error of law and substantial evidence supports the

Board's findings, the Board's decision must be affirmed.”81 Conversely, “[i]f the

Board overrides or misapplies the law,” this Court “will not hesitate to reverse.”82

“Absent error of law, the standard of review for a Board’s decision is abuse

of discretion.”83 An abuse of discretion occurs when the Board's decision has

“exceeded the bounds of reason in view of the circumstances, [or] so ignored

78
Powell v. OTAC, Inc., 223 A.3d 864, 870 (Del. 2019) (citing Roos Foods v. Guardado, 152 A.3d
114, 118 (Del. 2016)); see also Gen. Motors Corp. v. Freeman, 164 A.2d 686, 689 (Del. 1960);
Rosenblum v. City of Wilm., 2024 WL 3876630, at *1 (Del. Super. Aug. 20, 2024); Johnson v.
Canalfront Builders, LLC, 2024 WL 862442, at *3 (Del. Super. Feb. 29, 2024), aff’d, 2024 WL
3886193 (Del. Aug. 21, 2024).
79
Zayas v. State, 273 A.3d 776, 785 (Del. 2022) (citing Oceanport Indus., Inc. v. Wilm. Stevedores,
Inc., 636 A.2d 892, 899 (Del. 1994)) (internal quotation marks omitted).
80
LeVan v. Indep. Mall, Inc., 940 A.2d 929, 932 (Del. 2007) (citing Page v. Hercules, 637 A.2d
29, 32 (Del. 1994)) (construing worker’s compensation statute).
81
Zayas, 723 A.3d at 785 (quoting Stevens v. State, 802 A.2d 939, 944 (Del. Super. 2002) (internal
citations omitted) and citing Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988)).
82
Baxter v. Verizon Commn’s, 2024 WL 3581660, at *3 (Del. Super. July 30, 2024) (first citing
Pitts v. White, 109 A.2d 786, 788 (Del. 1954); then citing Ohrt v. Kentmere Home, 1996 WL
527213, at *3 (Del. Super. Aug. 9, 1996); and then citing City of Wilm. V. Clark, 1991 WL 53441,
at *3 (Del. Super. Mar. 20, 1991)).
83
Person-Gaines v. Pepco Hldgs., Inc., 981 A.2d 1159, 1160 (Del. 2009) (citing Stanley v. Kraft
Foods, Inc., 2008 WL 2410212, at *2 (Del. Super. Mar. 24, 2008)).

15
recognized rules of law or practice as to produce injustice.”84 The Board’s practice

relating to the admission of evidence is generally less formal than courts of law.

Section 1331.14.3 of the IAB Regulations guides such procedures:

The rules of evidence applicable to the Superior Court of the State of
Delaware shall be followed insofar as practicable; however, that
evidence will be considered by the Board which, in its opinion,
possesses any probative value commonly accepted by reasonably
prudent persons in the conduct of their affairs. The Board may, in its
discretion, disregard any customary rules of evidence and legal
procedures so long as such a disregard does not amount to an abuse of
its discretion.85

Despite this flexible authority and even if “the Board’s ultimate conclusion was

based, in part, on credibility findings of other witnesses, [if] the process was so

flawed that it is difficult for [this Court] to have confidence in the outcome[,]” this

Court may reverse.86

The Board’s fact finding is reviewed under the substantial evidence standard.

Substantial evidence is defined as “such relevant evidence as a reasonable mind

84
Zayas, 273 A.3d at 786 (quoting Roos Foods, 152 A.3d at 118 (alteration in original); see e.g.,
Abrahams v. Chrysler Grp., LLC., 44 A.3d 921, 2012 WL 1744270 (Del. May 11, 2012) (TABLE).
In Abrahams, the Court ruled that the “IAB improperly permitted Chrysler's attorney to offer what
amounted to expert testimony during her closing argument. This maneuver, defended before this
Court as a tactical decision, violated fundamental notions of fairness by depriving Abrahams of
the opportunity to dispute the facts material to the outcome of his case.” Id. As a result, the Court
determined that this case represented an abuse of discretion. Id.
85
Zayas, 273 A.3d at 785 (quoting 19 Del. Admin. C. § 1331-14.3) (emphasis in original).
86
Id. at 780.

16
might accept as adequate to support a conclusion.”87 Put differently, substantial

evidence is “more than a scintilla but less than a preponderance of the evidence.”88

Importantly, this Court “must give deference to the ‘experience and specialized

competence of the Board’ and must take into account the purposes of the Worker’s

Compensation Act. These restrictions are in part due to the ‘critical advantage’ the

Board has in its ability to observe the testimony of the live witnesses.” 89 In this

context, it is not this Court’s province to independently weigh the evidence,

determine questions of credibility, or make its own factual findings,90 but rather, to

“view the record in the light most favorable to the prevailing party below.”91 Further,

“[t]here is a presumption in favor of validity of the Board’s decision and the burden

of showing the error rests with the party raising the objection to such decision.”92

87
Fowler v. Perdue, Inc., 2024 WL 3196775, at *8 (Del. 2024) (citing Zayas, 273 A.3d at 785
(cleaned up).
88
Powell, 223 A.3d at 870 (quoting Noel-Liszkiewicz v. La-Z-Boy, 68 A.3d 188, 191 (Del. 2013));
id. at 871 (“[T]his factual finding depends in large measure on the Board’s assessment of the
credibility of the witnesses who testify before it. It is the exclusive function of the Board to evaluate
the credibility of witnesses”) (citing Hardy v. E. Quality Vending, 2015 WL 2378903, at *6 (Del.
Super. May 12, 2015)).
89
Foraker v. Amazon.com, Inc., 2022 WL 599047, at *3 (Del. Super. Feb. 9, 2022) (first quoting
Phoenix Steel Corp. v. Garton, 1980 WL 687396, at *2 (Del. Super. July 25, 1980); then citing
Histed v. E.I. Du Pont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993); and then quoting Butler
v. Speakman Co., 1992 WL 276449, at *2 (Del. 1992)).
90
Kelley v. Perdue Farms, 123 A.3d 150, 153 (Del. Super. 2015) (citing Bullock v. K-Mart Corp.,
1995 WL 339025, at *2 (Del. Super. May 5, 1995)).
91
Wyatt v. Rescare Home Care, 81 A.3d 1253, 1258–59 (Del. 2013) (citing Steppi v. Conti Elec.,
Inc., 991 A.2d 19 (Del. 2010) (TABLE)).
92
Foraker, 2022 WL 599047, at *3 n.40 (citing Phoenix Steel Corp. v. Garton, 1980 WL 687396,
at *2 (Del. Super. July 25, 1980)).

17
IV. DISCUSSION

The questions pending before this Court on appeal are whether the Board’s

factual findings are supported by substantial evidence and its conclusions are free

from legal error. Foodliner argues that the Board’s findings of fact are not supported

by substantial evidence and that it erred as a matter of law in granting Hidinger’s

petition for compensation for treatment of his lumbar spine. Viewing the record in

a light most favorable to the prevailing party below, the Court disagrees and

concludes that the Board’s findings of fact are properly supported by substantial

evidence in the record, and its legal conclusions are correct as a matter of Delaware

law.

Foodliner’s primary contention on appeal is that the Board should not have

credited Dr. Xing’s testimony and relied upon her expert opinion regarding causation

because both rested on flawed or erroneous facts. Conversely, Hidinger asks this

Court to affirm because the Board appropriately credited Hidinger’s testimony and

Dr. Xing’s opinion regarding causation based upon substantial evidence in the

record.93

Foodliner’s argument focuses on Delaware Rule of Evidence 702(b) which

states, in part, that an expert witness may offer an opinion if the testimony is based

93
Answering Brief of Employee-Appellee, D.I. 19 [“Hidinger AB”].

18
on sufficient facts or data.94 Foodliner contends that Dr. Xing’s opinion fails to meet

that standard because: 1) she erroneously thought Hidinger indicated back pain on

the Injury Report and 2) she erroneously thought Hidinger reported to the ER for

back pain three days after the accident—when it was actually closer to three weeks.95

Foodliner argues that because Dr. Xing’s causation opinion relied these two

erroneous facts, it was flawed—thus, the Board’s reliance upon it was an abuse of

discretion and a clear error of law.96 Foodliner’s argument is unpersuasive.

First, as a preliminary matter, it does not appear Foodliner ever objected,

invoked Rule 702(b), or moved the Board to exclude Dr. Xing’s testimony or

opinion during the Board Hearing. Second, even if it had, this Court cannot conclude

the Board erred as matter of law or abused its discretion under Rule 702(b) by

allowing or crediting Dr. Xing’s testimony and opinion. Section 1331.14.3 of the

IAB Regulations does not require strict adherence to “customary rules of evidence

and legal procedures.”97 Moreover, an expert’s qualification under Rule 702 does

not require perfection.98 It requires a trial judge to act as a gatekeeper to ensure that

94
Foodliner OB at 13 (citing Delaware Rule of Evidence [“DRE”] 702). It should be noted that a
portion of DRE 702 is inexplicably omitted in Foodliner’s brief.
95
Foodliner OB at 13-14.
96
Id. at 13.
97
Zayas, 273 A.3d at 785 (quoting 19 Del. Admin. C. § 1331-14.3) (emphasis in original).
98
Ayala v. State, 204 A.3d 829, 834 (Del. 2019) (“[The] admission of expert testimony requires
reliability, not infallibility.”); id. (quoting In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744
19
expert testimony is not only relevant, but reliable.99 And the danger of allowing such

evidence is diminished where, as here, the matter is akin to a bench trial because

“the judge can consider any shortcomings in the expert’s testimony that are drawn

out through cross-examination.”100

Consistent with this premise, as the finder of fact and decider of credibility in

workers’ compensation matters, “it is exclusively the board’s role to resolve

conflicts in testimony and to weigh the credibility of each witness.”101 The Board

did just that. During summation, Foodliner’s counsel argued the Board should credit

the Dr. Murphy’s opinion regarding causation—rather than Dr. Xing’s—based upon

the discrepancies between her understanding of the facts and other documents in the

record.102 The Board had the issue of Dr. Xing’s credibility squarely before it—and

specifically chose to credit her.

In applying the abuse of discretion standard, this Court declines, as it has done

before, to “supplant itself as the trier of fact in this case, a role the law clearly

(3d Cir. 1994)) (“the grounds for the expert’s opinion merely have to be good[;] they do not have
to be perfect.”).
99
Ayala, 204 A.3d at 834 (citing M.G. Bancorporation, Inc. v. LeBeau, 737 A.2d 513, 521-22
(Del. 1999)).
100
In re Delaware Public Schools Litigation, 239 A.3d 451, 501 (Del. Chan. 2020) (citations
omitted).
101
Hidinger AB at 26 (quoting Playtex Prods., Inc. v. Leonard, 2002 WL 31814637 (Del. Super.
Nov. 14, 2002)).
102
Tr. at 74.

20
prohibits the Court from assuming in its appellate capacity.”103 Instead, “The Board

[wa]s free to more readily accept or give greater weight to the credibility of one

witness over another, if it is supported by substantial evidence.” 104 That Dr. Xing

mistakenly believed that Hidinger had marked his lower back on the Injury Report

does not mean her opinion or testimony failed to rely on sufficient facts or data; nor

does the discrepancy regarding when Hidinger first sought treatment. Dr. Xing was

Hidinger’s treating physician, and her testimony recounts multiple physical

examinations over the course of three years, beginning approximately three weeks

after the accident, physically examining Hidinger, running tests including MRIs and

EMGs, and discussing and providing treatment over that time. And Dr. Xing’s

clinical findings were consistent with the testimony of Hidinger regarding his

subjective symptoms following the Accident. The Board also thoroughly explained

its reasoning for finding causation, notwithstanding the absence of early reports of

back pain. In sum, the Court finds the Board did not err as a matter of law in

admitting and crediting Dr. Xing’s opinion, and substantial in the record supports

the Board’s determinations.

103
Roeben v. James Jullian, Inc. of Delaware, 2021 WL209865, at *4 (Del. Super. Feb. 16, 2001)
(denying an employer’s request to exclude testimony of expert under DRE 702).
104
Playtex, 2002 WL 31814637, at *4.

21
V. CONCLUSION

The Board’s factual findings regarding the type and extent of Hidinger’s

injuries are based upon substantial evidence in the record and its conclusions of law

regarding causation are consistent with Delaware jurisprudence. Accordingly, the

Board’s Decision granting Hidinger compensation for injuries sustained to the

lumbar spine is hereby AFFIRMED.

IT IS SO ORDERED.

/s/ Kathleen M. Vavala
The Honorable Kathleen M. Vavala

22