Hughes v. UPS

IN THE SUPERIOR COURT OF DELAWARE

TIMOTHY HUGHES, )
)
Claimant-Below, )
Appellant, )
)
v. ) C.A. No. N24A-04-002
)
UPS, )
)
Employer-Below, )
Appellee. )

Submitted: October 17, 2024
Decided: January 15, 2025

ORDER

For the reasons below, the decision of the Industrial Accident Board (the

“Board”) is affirmed.

1. Claimant Timothy Hughes (“Claimant”) was injured in a vehicle

collision while working as a delivery driver for UPS (“Employer”). He suffered

overnight with severe back pain and went to see a doctor the next day. After

testing and consultation with several doctors, it was determined that he was

fully disabled1 from continuing work and diagnosed with osteopenia, a

1
D.I. 4 Decision on Pet. to Determine Additional Compensation Due at 5-7 (Mar. 12, 2024),
Trans. ID 72836901 [hereinafter Decision on Pet. to Determine Additional Compensation Due to
Injured Employee at page number].
condition that weakens the bones and increases the risk of bone fractures. 2 Two

months after the vehicle collision, Claimant was admitted to the hospital with

an acute pulmonary embolism, anemia, and pathologic fractures of his back.3

During his hospital stay, Claimant was also determined to have a previously

undiagnosed condition of multiple myeloma, a blood cancer that weakens the

bones.4

2. Given the seriousness of the cancer diagnosis, it was decided to defer

further treatment of his bone conditions pending oncologic treatment for his

cancer. Eventually, Dr. Eskander performed spinal fusion surgery, a procedure

that permanently joins two or more vertebrae together in the spine, and a

laminectomy to remove the lamina bone in the spine.5

3. From these facts, it is pretty obvious what the dispute here would be

about: was the spinal surgery needed as a result of the accident for which the

Employer was responsible under the Worker’s Compensation law, or was it a

2
D.I. 4 Dep. of Dr. Eskander at 23 (Jan. 17, 2024), Trans. ID 72836901 [hereinafter Dep. of Dr.
Eskander at page number].

3
Decision on Pet. to Determine Additional Compensation Due at 8.
4
Id. at 5; D.I. 4 Dep. of Dr. Eskander at 23.
5
D.I. 4 Pet. to Determine Additional Compensation Due to Injured Employee at 11 (Feb. 7,
2023), Trans. ID 72836901.

2
result of Claimant’s multiple myeloma and osteopenia, for which the Employer

was not responsible?

4. With the aid of able counsel, Claimant submitted a Petition to

Determine Additional Compensation Due to Injured Employee to the Board.6

The Board reviewed depositions from three doctors. The Claimant’s medical

witness, Dr. Eskander, testified that “There are features that are consistent with

acute injury and there are features that are consistent with more chronic

changes, but they really can’t be 100 percent definitive on it.”7 Dr. Eskander

further testified that a bone broken through trauma – such as a vehicle accident

– would always produce substantial and immediate pain,8 a fact inconsistent

with Claimant’s testimony that he did not experience substantial pain until the

morning after the accident.

5. In contrast, Employer’s first medical witness, Dr. Rushton, testified

that “There were no findings, or evidence, to suggest a traumatic origin, a

traumatic onset, or any acute or chronic changes. These were, unfortunately for

6
Id. at 1.
7
Dep. of Dr. Eskander at 39.
8
At his deposition, Dr. Eskander stated, “Any time a bone breaks, it causes pain, it doesn’t
matter how big of how small and it doesn’t matter what causes it. If the bone breaks because of
osteoporosis, meaning, soft bones, or because of a tumor invading the bone or an infection
invading the bone or the bones are really strong and the patient gets hit by a car and the bones
break because of that, it doesn’t really matter, it causes pain every single time.” Id. at 14.

3
Mr. Hughes, the direct result of a very advanced level of multiple myeloma.

There was no traumatic basis or foundation to the need for care.”9 Employer’s

second medical witness, Dr. Gelman, agreed with Dr. Rushton’s conclusion that

the vehicle collision did not cause the spinal fractures.10

6. After considering the contrasting views of the medical witnesses, the

Board accepted the “medical opinions of Dr. Rushton and Dr. Gelman over the

medical opinions of Dr. Eskander.”11 Thus, the Board concluded that the

Claimant failed to meet his burden of proving that the work accident caused the

need for surgery.12

7. The Superior Court’s “‘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

9
D.I. 4 Dep. of Dr. Rushton at 24 (Jan. 18, 2024), Trans. ID 72836901 [hereinafter Dep. of Dr.
Rushton at page number].
10
At a deposition of Dr. Gelman, the attorney, Mr. Sean Gambogi, for the Claimant read the
following from Dr. Rushton’s report, “There is no plausible medical, surgical, posttraumatic, or
diagnostic criteria that would support any foundation pertaining to a causal relationship of the
incident of December 1, 20221, and the need for lumbar spine surgery considering the
contemporaneous review of records and imaging studies.” D.I. 4 Dep. of Dr. Gelman at 51 (Jan.
19, 2024), Trans. ID 72836901 [hereinafter Dep. of Dr. Gelman at page number]. In response,
Dr. Gelman testified, “I agree with the statement you read from Dr. Rushton’s report.”
Id. at 52.
11
Decision on Pet. to Determine Additional Compensation Due at 21.
12
Id. at 24.

4
findings of fact and conclusions of law.’”13 Substantial evidence means

“relevant evidence that a reasonable mind might accept as adequate to support a

conclusion.”14 The Superior Court reviews the Board’s decisions on questions

of law de novo.15

8. Reasonable minds may disagree on what caused the Claimant’s spinal

fractures. But relevant evidence adequately supported the Board’s conclusion

that the work-related vehicle collision was not the cause. This was a fact finding

by the Board that the Court will not disturb because relevant evidence

adequately supported it.

9. In Nastasi–White, Inc. v. Futty (Del. 1986), a claimant had

osteoporosis, which caused brittle bones.16 The claimant’s vertebra broke while

lifting a box weighing 50 pounds at work.17 The claimant filed a claim with the

Board, but the Board decided that “osteoporosis was a pre-existing condition

13
United Parcel Service v. Willis, 2024 WL 5039034, at *4 (Del. Super. Dec. 6, 2024) (quoting
Powell v. OTAC, Inc., 223 A.3d 864, 870 (Del. 2019)).
14
Quaile v. Nat'l Tire & Battery, 2022 WL 2527619, at *4 (Del. Super. July 7, 2022) (citing
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)).
15
Cantoni v. Delaware Park Racetrack, & Slots, 2023 WL 2535896, at *3 (Del. Super. Mar. 16,
2023) (citing Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006)).

Sewell v. Delaware River & Bay Auth., 796 A.2d 655, 662 (Del. Super. 2000) (citing Nastasi–
16

White, Inc. v. Futty, 509 A.2d 1102, 1104 (Del. 1986)).
17
Nastasi–White, 509 A.2d at 1103.

5
caused not by any work-related trauma but by the natural process of aging.”18

As a result, the Board held that the broken vertebra was not a compensable

injury, even though the injury occurred at work.19 On appeal, the Superior Court

affirmed the Board.20 Multiple myeloma – like osteoporosis – was not caused

by working for the Employer.

10. Claimant asks the Court to consider a decision of the Board – Peggy

Sue Fritts v. Rite Aid21 – a decision that apparently was not appealed to this

Court. In that case, Ms. Fritts suffered for many years with an arthritic knee,

and she knew that replacement surgery was inevitable. She then had a

workplace incident in which her knee “locked up” and this precipitated the

decision to move up the surgical replacement. The Board held that the knee

replacement surgery was compensable because the workplace injury “caused”

the need to have it done sooner rather than later.22

11. The Fritts case comes close, but does not sit in pari materia with

Claimant here. Here, there was a dispute whether Claimant fractured any bones

18
Id. at 1104.
19
Id.
20
Id. at 1106.
21
D.I. 9 Ex. H of Appellant’s Opening Br.’s (June 5, 2024), Trans. ID 73316448.
22
Decision on Pet. to Determine Additional Compensation Due at 10-13, Peggy Sue Fritts v. Rite
Aid, Hr’g No. 1526742, Indus. Accident Bd. (May 20, 2024).
6
in his spine when he had the work-related auto accident. On the other hand,

fractured spinal bones are apparently part and parcel of multiple myeloma.23

The workplace injury may have precipitated the doctor visit, but that does not

mean the workplace injury caused any fractured bones at all. The burden of

proving the accident caused the broken bones was on the Claimant,24 and the

Board was within its prerogative to find that Claimant did not do so.

12. This case was well litigated on both sides by well qualified attorneys.

The Board clearly understood its duty decide the dispute on the facts and the

law and did so within the bounds of each. When that has happened, it is not the

Court’s role to second guess its conclusions.

The Board’s decision was supported by substantial evidence and free of legal

error, so it is therefore AFFIRMED.

IT IS SO ORDERED.
/s/ Charles E. Butler
Charles E. Butler, Resident Judge

23
The Board noted, “The progression of multiple myeloma diminishes the bone integrity until it
ultimately fractures or breaks. No trauma is necessary to cause a fracture although the bones are
more susceptible to fracture in the event of a trauma.” Decision on Pet. to Determine Additional
Compensation Due at 22. Dr. Eskander testified, “So, again, in layman’s terms, his bones are
soft, and that softness will lend itself to an increased risk of fractures. It doesn’t matter what
occurs, it’s just the higher chance. So he could lift something, he could roll out of bed, he could
get into a car accident, he can have any event, but his bones are more prone to breaking . . .”
Dep. of Dr. Eskander at 17.
24
The “claimant bears the burden of proving that the injury was work-related.” Strawbridge &
Clothier v. Campbell, 492 A.2d 853, 854 (Del. 1985) (citing Johnson v. Chrysler Corp., 59 Del.
48, 51, 213 A.2d 64, 66 (Del. 1965)).
7