Elliott v. State of Delaware.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

SAMUEL ELLIOTT, )

)

Claimant-Below/Appellant, )

)

v. ) C.A. No. N13A-08-008 DCS

)

STATE OF DELAWARE, )

)

Employer-Below/Appellee. )

Submitted: March 3, 2014

Decided: June 30, 2014

On Appeal from a Decision of the Industrial Accident Board

of the State of Delaware – AFFIRMED.

OPINION

Ronald Stoner, Esquire, Ronald Stoner, P.A., Newark, DE, Attorney for Claimant-

Below/Appellant Samuel Elliott

John J. Klusman, Esquire and Benjamin K. Durstein, Esquire, Tybout, Redfearn &

Pell, Wilmington, DE, Attorneys for Employer-Below/Appellee State of Delaware

STREETT, J.

Introduction

On February 2, 2007, Appellant Samuel Elliott (“Appellant”), a probation

officer for the State of Delaware (the “Employer”), sustained injuries when he and

the other members of a Probation and Parole team attempted to apprehend a

fugitive. Pursuant to an agreement approved by the Industrial Accident Board (the

“Board”), Appellant received temporary total disability compensation for the

injuries that he sustained as a result of the 2007 work accident.

On July 12, 2010, Appellant filed a Petition to Determine Additional

Compensation Due wherein he alleged permanent impairment to his brain, spine,

smell, taste, and balance. On September 17, 2010, the Employer filed a Petition to

Terminate Total Disability Benefits, alleging that Appellant was no longer totally

disabled as a result of the 2007 work accident. A hearing on both Petitions was

held on March 28, 2011.

On July 27, 2011, the Board issued a decision, granting Appellant’s Petition,

in part. The Board awarded Appellant compensation for seven percent permanent

impairment to the spine and denied compensation as to the brain, smell, taste, and

balance impairments. In addition, the Board granted the Employer’s Petition to

Terminate Total Disability Benefits and awarded Appellant partial disability as of

the date of the decision. Appellant appealed the Board’s decision.

2

On June 29, 2012, the Court reversed the Board’s decision, in part, as to

permanent impairment to the brain and remanded the matter to the Board for

credibility findings regarding certain expert and non-expert witnesses. The Court

also reversed and remanded the Board’s decision as to Appellant’s permanent

balance impairment and termination of his total disability benefits, in the event that

the findings on remand impacted the Board’s prior decision. The Court affirmed

the Board’s decision as to permanent impairment to the spine, smell, and taste.

On March 26, 2013, the Board held a remand hearing.

On July 26, 2013, the Board made credibility findings regarding certain

expert and non-expert witnesses and reaffirmed its prior decision to deny

compensation for permanent brain and balance impairments and to terminate

Appellant’s total disability benefits.

Appellant has appealed the Board’s decision on remand.

For the reasons set forth below, the Board’s decision is affirmed.

Factual Background

Relevant portions of the factual background from the Court’s decision prior

to remand 1 are summarized below:

1

See Elliott v. State, 2012 WL 2553327 (Del. Super. June 29, 2012).

3

Appellant “was a competent member of a Probation and Parole team that

operates in a SWAT-like fashion to apprehend escapees from the criminal justice

system.” 2

On February 2, 2007, Appellant sustained injuries to his head, neck, right

shoulder, and spine as his team attempted to apprehend a dangerous fugitive. He

received ongoing treatment from “a series of physicians for pain, chronic

headaches, memory loss, dizziness, balance impairment, and blurred double

vision.”3

Procedural History

On July 12, 2010, Appellant filed a Petition to Determine Additional

Compensation Due with the Board and sought compensation for permanent

impairment to his brain, spine, smell, taste, and balance as a result of the 2007

work accident. The Employer disputed causation.

On September 17, 2010, the Employer filed a Petition to Terminate Total

Disability Benefits, alleging that Appellant was no longer totally disabled as a

result of the work accident. Appellant had been receiving temporary total

disability compensation for injuries that he sustained as a result of the 2007 work

2

Id. at *1.

3

Id.

4

accident, pursuant to an agreement that was approved by the Board on March 20,

2009. 4

On March 28, 2011, a hearing before the Board was held. At the hearing,

Michael Cocuzza (Appellant’s supervisor), John Moyer (Appellant’s partner),

Appellant, Lisa Elliott (Appellant’s wife), and Dr. John Dettwyler (Appellant’s

treating psychologist) each testified on Appellant’s behalf. Appellant also

presented the deposition testimony of Dr. Alan Fink (a neurologist and Appellant’s

medical expert) and Dr. Brian Shiple (Appellant’s treating physician who

specializes in family medicine and sports medicine).

In addition, the Employer presented the deposition testimony of Dr. Karl

Rosenfeld (an orthopedic surgeon), Dr. William Sommers (a neurologist), Dr.

James Langan (a neuropsychologist), and Dr. Wolfram Rieger (a psychiatrist).

The testimony of each of the aforementioned expert and non-expert

witnesses is summarized in the Court’s June 29, 2012 decision.5

The Board also heard testimony from Robert Stackhouse, who prepared a

labor market survey and testified on the Employer’s behalf.

On July 27, 2011, the Board granted Appellant’s Petition to Determine

Additional Compensation Due, in part, and awarded Appellant compensation for a

4

Elliott v. State, Hearing No. 1298390, 2 (Indus. Accident Bd. Jul. 27, 2011) (hereinafter “Bd. Dec. at ”).

5

See Elliott v. State, 2012 WL 2553327.

5

seven percent impairment to the spine. The Board found that Appellant did not

prove, by a preponderance of the evidence, that he suffered permanent impairment

to his brain, smell, taste, or balance and, accordingly, denied compensation as to

those impairments. The Board granted the Employer’s Petition to Terminate Total

Disability Benefits and awarded Appellant partial disability at $226.36 per week.

Appellant appealed the Board’s July 27, 2011 decision, asserting that the

decision was not supported by substantial evidence and was legally incorrect. The

Employer asserted that the Board’s decision should be affirmed on appeal.

On June 29, 2012, the Court affirmed the Board’s decision as to Appellant’s

permanent spinal, smell, and taste impairments. The Court reversed the Board’s

decision as to Appellant’s permanent brain impairment and remanded the matter to

the Board for credibility findings regarding certain expert and non-expert

witnesses.

Specifically, the Court directed the Board to issue a decision on remand as to

Appellant’s brain impairment that included: (1) credibility findings as to Drs. Fink

and Dettwyler, (2) consideration of the testimony from Drs. Fink and Rosenfeld

regarding Appellant’s reflexes, (3) a specific finding reconciling Dr. Rosenfeld’s

comments about Appellant in November 2006 with his comments after the 2007

work accident, and (4) credibility findings as to Appellant’s non-expert witnesses

(Cocuzza, Moyer, and Mrs. Elliott). The Court also reversed and remanded the

6

Board’s decision as to Appellant’s permanent balance impairment and termination

of his total disability benefits to determine whether any of aforementioned

evidence or credibility findings on remand changed the Board’s prior decision.

On March 26, 2013, the Board held a remand hearing. At the hearing,

Appellant testified that he continued to treat with Dr. Shiple for his shoulder and

back injuries and that Dr. Patil, a neurologist, now treated his brain injury. 6 He

further testified that he has not been employed in any capacity since the 2007 work

accident and that he still does not drive.7

On July 26, 2013, the Board issued a decision on remand, reaffirming its

prior decision to deny compensation for permanent brain and balance impairments

and to terminate Appellant’s total disability benefits. The Board “reviewed [and

weighed] all the evidence in this case regarding [Appellant’s] alleged permanent

brain impairment, with particular emphasis on the specific issues raised by the

Court.”8 The Board made credibility findings as to certain expert and non-expert

witnesses and determined that Appellant had not proven, by a preponderance of the

evidence, that he suffered a permanent brain impairment as a result of the 2007

work accident. The Board noted that because it had not changed its prior decision

6

Tr. of Bd. Hrg. on Remand, 5 – 6 (Mar. 26, 2013) (hereinafter “Remand Tr. at ”).

7

Id. at 6.

8

Elliott v. State, Hearing No. 1298390, 4 (Indus. Accident Bd. Jul. 26, 2013) (hereinafter “Bd. Dec. on Remand at

”).

7

as to permanent brain impairment, it “reconfirm[ed] its earlier decision that

[Appellant] does not suffer a permanent balance impairment and its decision to

terminate [Appellant’s] total disability benefits.” 9

On August 14, 2013, Appellant filed a Notice of Appeal of the Board’s

decision on remand.

On December 12, 2013, Appellant filed an Opening Brief. The Employer

filed an Answering Brief on January 24, 2014. On February 3, 2014, Appellant

filed a Reply Brief.

Parties’ Contentions

Appellant contends that the Board erred as a matter of law and fact because

the Board: (1) required “incontrovertible proof” that Appellant suffers from a

permanent brain impairment as a result of the 2007 work accident, (2) did not

provide specific, relevant support for its credibility determinations as to Drs. Fink,

Dettwyler, and Rosenfeld, and (3) did not afford appropriate weight to the

testimony of Appellant’s lay witnesses.

The Employer asserts that substantial evidence supports the Board’s

conclusion that Appellant did not suffer permanent brain impairment related to the

2007 work accident. The Employer argues that the Board applied the correct

standard in its earlier decision and again on remand in reaching such a conclusion.

9

Id. at 15.

8

The Employer further argues that the Board fully addressed all of the expert

credibility issues on remand and did not err in its consideration of, and weight

accorded to, lay witness testimony.

Standard of Review

On appeal from a Board decision, the role of the Court is to determine

whether the Board’s findings of fact are supported by substantial evidence and

whether its decision is free from legal error.10 Substantial evidence is “such

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

conclusion.” 11 The Court does not weigh evidence, determine questions of

credibility, or make findings of fact.12 The record is viewed “in the light most

favorable to the prevailing party below.” 13 However, questions of law are

reviewed de novo.14

10

Spellman v. Christiana Care Health Servs., 74 A.3d 619, 622 (Del. 2013). See also Anchor Motor Freight v.

Ciabattoni, 716 A.2d 154, 156 (Del. 1998); Shively v. Allied Sys., Ltd., 2010 WL 537734, *9 (Del. Super. Feb. 9,

2010).

11

Histed v. E.I. Du Pont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993) (citing Olney v. Cooch, 425 A.2d 610,

614 (Del. 1998)).

12

Arrants v. Home Depot, 65 A.3d 601, 605 (Del. 2013). See also Day & Zimmerman Sec. v. Simmons, 965 A.2d

652, 656 (Del. 2008).

13

Wyatt v. Rescare Home Care, 81 A.3d 1253, 1258 – 59 (Del. 2013).

14

Anchor Motor Freight v. Ciabattoni, 716 A.2d at 156; Shively v. Allied Sys., Ltd., 2010 WL 537734 at *9.

9

The Board’s decision will stand if satisfactory evidence supports the Board’s

factual findings and if it is free from legal error.15

Discussion

Brain Impairment

Under the Delaware Workers’ Compensation Act, a claimant may file a

petition to recover compensation for certain permanent injuries caused by a work-

related accident.16 The claimant has the burden of proving his or her permanent

impairment claim by a preponderance of the evidence. 17 A compensable

permanent impairment requires a showing of loss of use. 18

“Although the Board is guided by medical evidence and testimony, ‘it is the

function of the Board, and not that of a physician, to determine a claimant’s

disability – subject to the requirement that the Board’s findings be based on

substantial competent evidence.’” 19 Where the Board is presented with conflicting

medical expert testimony, it must resolve such testimony in its role as the fact-

15

Noel-Liszkiewicz v. La-Z-Boy, 68 A.3d 188, 191 (Del. 2013) (“Only when there is no satisfactory proof to support

a factual finding of the Board may the Superior Court . . . overturn that finding”). See also Bustos v. Castle Constr.

of Del., Inc., 2005 WL 2249762, *2 (Del. Super. 2005).

16

19 Del. C. § 2326.

17

29 Del. C. § 10125(c) (“The burden of proof shall always be upon the applicant or proponent”); Drainer v.

Heating Oil Partners, 2013 WL 3871412, *6 (Del. Super. June 27, 2013), aff’d, 2014 WL 470399 (Del. Feb. 4,

2014).

18

See 19 Del. C. § 2326(g) (“The Board shall award proper and equitable compensation for . . . the loss of use of

any member or part of the body . . . .”); Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 – 37 (Del. 2006)

(finding that “evidence of pain without loss of use is not a compensable permanent impairment”).

19

Bromwell v. Chrysler LLC, 2010 WL 4513086, *3 (Del. Super. Oct. 28, 2010) (quoting Poor Richard Inn v.

Lister, 420 A.2d 178, 180 (Del. 1980)).

10

finder.20 The Board is free to accept or reject an expert’s testimony in whole or in

part. 21 However, where the expert medical testimony is by deposition, the Board

must provide “specific relevant reasons” based on evidence in the record for

accepting one expert’s testimony over the other’s. 22 The Board may reject the

opinion of a medical expert if it determines that opinion is primarily based on what

a claimant has told the doctor and the underlying facts suggest otherwise. 23 The

Board may also “accord more weight to a non-treating expert over a conflicting

treating expert.”24 The Board’s “acceptance of expert testimony, even when

contradicted by another expert, qualifies as substantial evidence for purposes of

appeal.” 25

In the instant case, Appellant filed a petition to recover compensation for a

forty percent permanent impairment to his brain. As a result, Appellant had the

ultimate burden of proof in establishing permanent brain impairment. In both of its

20

Munyan v. Daimler Chrysler Corp., 909 A.2d at 136.

21

Sweeney v. Wal-Mart, 2013 WL 3975149, *4 (Del. Super. July 31, 2013) (citing Turbitt v. Blue Hen Lines, 711

A.2d 1214, 1215 (Del. 1998)).

22

Rhinehardt-Meredith v. State, 2008 WL 5308388, *5 (Del. Dec. 22, 2008) (discussing Lindsay v. Chrysler Corp.,

1994 WL 750345 at *3 (Del. Super. Dec. 7, 1994)).

23

Sweeney v. Wal-Mart, 2013 WL 3975149, *4 (noting that “when the expert medical opinion is based in large part

on a claimant’s recital of subjective complaints and the Board finds the underlying facts to be different, the Board

may reject the expert’s conclusion”). See also Flowers v. Daimler Chrysler Corp., 2005 WL 2303811, *4 (Sept. 20,

2005) (citing Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).

24

Noel-Liszkiewicz v. La-Z-Boy, Inc., 2012 WL 4762114, *5 (Del. Super. Oct. 3, 2012), aff’d, 2013 WL 519603

(Del. Feb. 12, 2013) (citing Clements v. Diamond State Port Corp., 831 A.2d 870, 877 (Del. 2003)).

25

Cottman v. Burris Fence Constr., 2006 WL 3742580, *4 (Del. Dec. 19, 2006) (internal quotation marks and

citation omitted).

11

decisions, the Board clearly articulates the preponderance of the evidence

standard. 26 The Board’s use of “incontrovertible proof” in its decision 27 on remand

“may have been poor word choice but it does not establish that the Board ignored

the appropriate standard and replaced it with a higher burden of proof.”28

Moreover, it is well-established that the Employer “need not raise and prove

alternative theories of causation in order to prevail.” 29 Consequently, Appellant’s

argument that the Board applied an improper burden of proof is without merit.

Furthermore, on remand, the Board considered all of the evidence and

testimony in the record before responding to each of the Court’s four directives.

The Board fully explained its reasons for rejecting the conclusion of

Appellant’s medical experts (Drs. Fink, Dettwyler, and Shiple) that Appellant

suffered from a permanent brain impairment which they diagnosed as post-

concussion syndrome.

Specifically, the Board accepted Dr. Fink’s testimony that Appellant

suffered a concussion from the 2007 work accident and symptoms of post-

26

See Bd. Dec. at 40 (“After considering the voluminous testimony on this [brain impairment] issue, the Board finds

the testimony of the Employer’s experts more persuasive and concludes that, more likely than not, [Appellant] does

not suffer from a permanent brain injury related to the acknowledged work accident”); Bd. Dec. on Remand at 4

(“The burden of proof on the issue of permanent brain impairment remains on Claimant as the original petitioner . . .

After weighing the evidence, the Board again finds, by a preponderance of the evidence, that [Appellant] has not

suffered a permanent brain injury as a result of the work accident on February 2, 2007”).

27

See Bd. Dec. on Remand at 6 (noting that “neither Dr. Fink nor Dr. Rosenfeld has stated that these findings [of

hyperreflexia and clonus] provide incontrovertible proof of a permanent brain injury”).

28

Goicuria v. Kauffman’s Furniture, 1997 WL 817889, *1 (Del. Super. Oct. 30, 1997), aff’d, 1998 WL 67720 (Del.

Feb. 5, 1998).

29

Strawbridge & Clothier v. Campbell, 492 A.2d 853, 853 (Del. 1985).

12

concussion syndrome for a period of time thereafter. However, the Board cited Dr.

Fink’s heavy reliance on testing performed at Bryn Mawr Rehabilitation Center

and on Appellant’s subjective complaints as the reasons for rejecting his opinion

that Appellant suffered a forty percent permanent impairment to his brain.

The Board explained that “the [Appellant’s experts’] testimony about [his]

treatment and test results at Bryn Mawr . . . lacked detail and left the Board with an

incomplete understanding of the Bryn Mawr doctors’ tests and conclusions.” 30

The Board further explained that, based on its own observations of

Appellant and the inconsistencies noted by the Employer’s medical experts, it

doubted the credibility of some of Appellant’s subjective complaints. Specifically,

the Board noted that Appellant made conflicting statements to doctors regarding

his psychological history, complained of worsening cognitive problems despite

receiving extensive treatment, performed poorly on Dr. Langan’s validity tests, and

Dr. Langan’s MMPI-3 test results showed symptom somatization. As the Board

correctly noted, it was permitted to consider Appellant’s credibility, or lack

thereof, when it discounted Dr. Fink’s testimony because his diagnosis and opinion

were based on the integrity of Appellant’s subjective complaints.

Moreover, although Dr. Fink found hyperreflexia and clonus when he

physically examined Appellant, the Board noted that both Dr. Fink and Dr.

30

Bd. Dec. on Remand at 11.

13

Rosenfeld testified that there is more than one possible cause for such findings and

neither expert definitively testified that these findings did, in fact, indicate a

permanent brain impairment in Appellant.

As to Appellant’s treating psychologist, the Board found that while Dr.

Dettlwyler saw Appellant more times than the other medical experts who testified

before the Board, “the weight afforded a doctor’s opinion is never solely

determined by the number of times he or she has seen the patient.” 31

In addition, the Board did not accept Dr. Dettwyler’s opinion that Appellant

suffered permanent brain impairment as a result of the 2007 work accident,

because he, too, relied on testing performed at Bryn Mawr Rehabiliation Center in

forming his opinion. The Board also reasoned that Dr. Dettwyler conceded further

testing was necessary in order to determine if a cognitive issue caused Appellant’s

memory lapses involving his age, his son’s date of birth, and the President’s name.

Furthermore, the Board determined that Dr. Dettwyler “undermined his own

credibility by making the unsupported generalization” that Dr. Langan and Dr.

Reiger “always found nothing wrong or found a patient’s condition to be related to

pre-existing psychological problems.” 32

31

Id.

32

Id. at 12.

14

Additionally, although the Court did not direct the Board to do so, the Board

addressed the credibility of Dr. Shiple’s opinion regarding Appellant’s permanent

brain impairment. The Board found that although Dr. Shiple treated Appellant for

his musculoskeletal injuries, accepted what Appellant reported to him as accurate,

referred Appellant to Bryn Mawr Rehabilitation Center when his concussion

symptoms persisted, and relied on that facility’s testing in forming his opinion, Dr.

Shiple’s own credibility was undermined by “some general bias” held by Dr.

Shiple concerning “DME evaluations and testing in general.” 33

As to Dr. Rosenfeld (one of the Employer’s experts), the Board credited his

testimony in general, despite his use of “overly dramatic” language to describe

Appellant’s physical appearance pre- and post-work accident.34 The Board

compared Dr. Rosenfeld’s comments regarding Appellant in 2006 (when he treated

Appellant for an unrelated injury) and post-work accident and found that Dr.

Rosenfeld “sought to contrast [Appellant’s] actual physically robust appearance

with the doctor’s pre-exam expectations” and that such language was used to

emphasize that Appellant’s subjective complaints were inconsistent with his

physical appearance.35

33

Id. at 13.

34

Id. at 9.

35

Id.

15

The Board noted that it had been “presented with qualified medical experts

who reached distinctly different conclusions on the issue of brain permanency after

examining [Appellant] on multiple occasions and reviewing most of the same

clinical exam findings, history, and diagnostic test findings.” 36 Ultimately, the

Board found the Employer’s experts’ (Drs. Sommers, Langan, and Rieger) opinion

that Appellant suffered from a psychological condition or malingering to be more

persuasive that Appellant’s experts’ opinion. The Board summarized all of the

experts’ opinions as to permanent brain impairment, explained its reasons for

accepted the Employer’s experts’ opinion, and, on remand, articulated reasons for

rejecting Appellant’s experts’ opinion. It is not required to do anything further. 37

Finally, the Board also reconsidered the testimony of Appellant’s non-expert

witnesses (his supervisor, partner, and wife). The Board accepted their testimony

that they observed significant changes in Appellant’s behavior and capabilities

after the 2007 work accident, which continued despite treatment. However, the

Board stated that “none of these witnesses has medical expertise and cannot opine

whether the behaviors and capabilities they have observed are related to an organic

36

Id.

37

See Johnson v. E.I. Dupont de Nemours & Co., 2000 WL 33115805, *3 (Del. Super. Oct. 4, 2000) (affirming a

Board decision denying petition for permanent impairment benefits where the “Summary of the Evidence” and

“Permanent Impairment” sections, when taken together, made it clear that the Board evaluated all of the expert

testimony, personally observed the appellant, and explained its reason for accepting one expert’s opinion over the

other’s).

16

brain injury.” 38 The Board also noted that “medical evidence . . . is most critical to

the Board’s decision in this case.” 39

As the trier of fact, the Board determines the credibility of witnesses as well

as the appropriate weight to accord witness testimony and the reasonable

inferences to be drawn therefrom. 40 Such determinations “are functions that are

reserved exclusively for the Board.”41

Balance Impairment

As the Court previously noted, “the Board is free to reject with reason the

expert opinion of Dr. Fink as to [Appellant’s] complaints of dizziness and balance

problems and accept the opinion of Dr. Sommers that no balance impairment

exists.”42 On remand, the Board found that the experts’ testimony on their

hyperreflexia and colonus findings in Appellant did not definitively indicate the

existence of permanent brain impairment. Thus, the Board was not required to

reconsider Dr. Rieger’s comment that dizziness is a symptom that is commonly

faked. The Board’s decision that Appellant does not suffer from a permanent

balance impairment stands.

38

Bd. Dec. on Remand at 14.

39

Id.

40

Saunders v. DaimlerChrysler, Corp., 2006 WL 390098, *4 (Del. Feb. 17, 2006).

41

Opportunity Ctr., Inc. v. Jamison, 2007 WL 3262211, *3 (Del. May 24, 2007).

42

Elliott v. State, 2012 WL 2553327 at *10.

17

Termination of Total Disability

Appellant also appealed the Board’s decision to terminate Appellant’s total

disability benefits. Appellant takes issue with the Board’s acceptance of the

opinions of the Employer’s experts (Drs. Sommers, Rosenfeld, and Reiger) that

Appellant did not have a permanent brain impairment and that Appellant was able

to work without explaining its reasons for discounting his experts’ opinions to the

contrary.

Under Delaware law, the Board is authorized to increase, decrease, or

review previously agreed-upon compensation if an interested party submits an

application asserting that the injured employee’s condition or circumstances have

changed.43

To prevail on a petition to terminate total disability benefits, the employer

bears the initial burden of demonstrating that the injured employee is no longer

totally incapacitated to work, which may require the Board to weigh and choose

between conflicting expert testimony. 44 The burden then shifts to the injured

employee to show that he is a “displaced worker” (i.e., “one who suffers from a

compensable injury that renders him so handicapped that he will ‘no longer be

employed regularly in any well known branch of the competitive labor market’ and

43

19 Del. C. § 2347. See also Arrants v. Home Depot, 65 A.3d at 605.

44

Shively v. Allied Sys., Ltd., 2010 WL 537734 at *11.

18

could only obtain steady employment if a job is specially created for him” or that

his treating physician ordered him not to work).45 If the injured employee shows

that he is a displaced worker, then the employer must provide evidence that regular

employment is available within the injured employee’s capabilities. 46

In its decision prior to remand, the Board found that the Employer presented

evidence that Appellant was no longer completely incapacitated, Appellant did not

establish displacement (even though he was entitled to follow Dr. Shiple’s

instructions not to return to work while the Employer’s Petition was pending), and

that the Employer presented evidence of twelve jobs within Appellant’s vocational

and physical capabilities. On remand, the Board explained its reasons for

discounting Appellant’s experts as to permanent brain impairment. The Board

stated that it weighed all of the evidence and found that Appellant did not suffer

from permanent brain impairment, and, as a result, the Board reaffirmed its

decision to terminate total disability. Thus, the Board’s decision to terminate

Appellant’s total disability benefits stands.

Conclusion

Therefore, the Board applied the appropriate standard to reach its decision

that Appellant did not meet his burden of proving, by a preponderance of the

evidence, that he suffered permanent brain impairment as a result of the 2007 work

45

Id. at *13 (quoting Torres v. Allen Family Foods, 672 A.2d 26, 30 (Del. 1995)).

46

Id.

19

accident. It was within the Board’s purview to resolve the conflicting medical

expert testimony on the issue of permanent brain impairment and to accord weight

to the non-experts’ testimony. On remand, the Board cited specific, relevant

reasons for rejecting Appellant’s experts’ opinion and addressed each of the issues

raised by the Court before remand. The Board’s acceptance of the Employer’s

experts’ opinion that Appellant does not suffer from permanent brain impairment

over Appellant’s experts’ opinion to the contrary constitutes substantial evidence

on appeal. Because the Board did not change its decision as to permanent brain

impairment on remand after making certain expert and non-expert findings, the

Board was not required to reconsider its decision as to permanent balance

impairment and to terminate Appellant’s total disability benefits.

ACCORDINGLY, the Board’s decision regarding Appellant’s brain and

balance impairments is AFFIRMED. The Board’s decision granting the

Employer’s Petition to Terminate Total Disability Benefits is also AFFIRMED.

IT IS SO ORDERED.

/s/ Diane Clarke Streett

Diane Clarke Streett

Judge

Original to Prothonotary

cc: Ronald Stoner, Esquire

John J. Klusman, Jr., Esquire

Benjamin K. Durstein, Esquire

20