Barrett Business Service, Inc. v. Edge ( 2020 )

IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE
BARRETT BUSINESS SERVICE, INC., )
d/b/a ENTERPRISE MASONRY, )
)
Appellant, )
) C.A. No. N19A-11-011 DCS
v. )
)
ROBERT EDGE, )
)
Appellee. )
Submitted: October 9, 2020
Decided: October 29, 2020
Upon Appeal from the Industrial Accident Board–
REVERSED AND REMANDED
OPINION
Nicholas Bittner, Esquire, Attorney for Appellant.
Timothy E. Lengkeek, Esquire, Attorney for Appellee.
STREETT, J.
Introduction
Barrett Business Service, Inc., d/b/a Enterprise Masonry, (“Employer”;
“Appellant”) appeals the Industrial Accident Board’s (the “Board”) decision on
remand that a stroke suffered by Robert Edge (the “Claimant”; “Appellee”) was
caused by a work-related accident.
The Board issued an initial decision holding that Claimant’s stroke was caused
by a work-related accident. Employer appealed that initial decision to this Court.
This Court reversed the Board’s decision and remanded the matter, holding that the
Board did not make, or articulate, findings on causation1. On remand, the Board
found that Claimant’s stroke was caused by the work-related accident.
Employer is now appealing the Board’s decision on remand to this Court.
Employer contends that the Board committed legal error, abused its discretion, and
its findings were not supported by substantial evidence. Claimant contends that the
Board’s decision is free from legal error and supported by substantial evidence.
This Court finds that the Board erred by failing to permit new expert witness
testimony on the issue of causation. Therefore, the Board’s decision is REVERSED
and REMANDED.2
1
The current judge did not handle the original appeal or remand order.
2
Although Employer raised several issues, the Court’s focus is on the issue of additional expert
witness testimony.
1
Statement of Facts
On May 11, 2017, at approximately 8:45 a.m., Claimant, while working for
Employer, fell off of a scaffold onto the ground six to eight feet below. There were
no eyewitnesses. After the fall, Claimant was able to walk, told coworkers that he
had hurt his hip, and filled out an accident report. Claimant also sustained a cut near
his left eye that had been caused by his safety glasses. An ambulance was called for
Claimant and he was transported to the hospital.
At approximately 10:25 a.m., less than two hours after the fall, Claimant
arrived at the emergency room. While stitches were being applied to the cut near
his left eye, Claimant suffered a transient ischemic attack (“TIA”) which is also
called a mini-stroke. The medical professionals took aggressive measures to reduce
Claimant’s significantly high (213/143) blood pressure. A tissue plasma activator
(“TPA”), also called a clot buster, was administered.3 The TPA caused a rapid drop
in Claimant’s blood pressure which starved Claimant’s brain of blood and severely
exacerbated Claimant’s stroke.4
Later that day, at approximately 6:00 p.m., Claimant was taken to surgery.
The surgeon found that two of Claimant’s cerebral arteries were substantially
3
Employer’s medical expert, Dr. Stephen L. Fedder, explained that a TPA, or clot buster, “break[s]
up an acutely formed clot and prevent[s] the addition of more clots.” Dr. Fedder’s Second
Deposition, at 18.
4
It is undisputed that the rapid blood pressure drop exacerbated conditions leading to the stroke.
2
occluded. Although the surgeon removed two clots and then implanted a stent,
Claimant became disabled and is in a wheelchair as a result of the stroke.
Procedural History
On October 3, 2017, Claimant filed a Petition to Determine Compensation
Due to establish that his stroke was causally related to the work accident. Employer
disputed that the stroke was caused by the work accident.
a. The Board’s Initial Decision
On March 23, 2018, a hearing on Claimant’s Petition was held before the
Board. Dr. John B. Townsend testified, by deposition, as the medical expert witness
for Claimant. Dr. Stephen L. Fedder testified, by deposition, as the medical expert
witness for Employer.
Claimant did not present any live witnesses. Employer’s live witnesses were
William Ritter, foreman for Employer; Kyle Furtaw, project manager and safety
coordinator for Employer; and Rhonda Malatesta, financial controller for Employer.
In his deposition testimony on behalf of Claimant, Dr. Townsend testified that
he is board certified in neurology.5 Dr. Townsend examined Claimant on November
14, 2017.6 Claimant was unable to speak and Claimant’s companion spoke to Dr.
5
Dr. Townsend’s Deposition, at 5.
6
Id. at 5.
3
Townsend on behalf of Claimant.7 Dr. Townsend testified that Claimant was a
smoker prior to the accident but his history did not show any other past medical
issues or prior accidents.8
Dr. Townsend observed that Claimant was in a wheelchair, could only say
“oh,” and was unable to read.9 Claimant also had a flaccid paralysis of the right arm.
The record also reflected that Claimant requires help with dressing, needs help with
tasks that involve the right side of his body, and requires assistance going to the
bathroom (although Claimant can walk with the assistance of a quad cane and can
feed himself).10
Additionally, Dr. Townsend diagnosed Claimant as having expressive aphasia
(unable to get words out), receptive aphasia (difficulty in understanding what was
being said to him), and apraxia (not being able to figure out how to do simple
tasks).11 Dr. Townsend opined that these symptoms were consistent with a left
hemisphere stroke.12
7
Id. at 7.
8
Id. at 7–8.
9
Id. at 23.
10
Id. at 7, 23.
11
Id. at 23.
12
Id.
4
 Dr. Townsend reviewed the medical records relating to the accident and
emergency room visit. He stated that the records show that Claimant had fallen eight
feet from a scaffolding, his blood pressure was elevated (213/143) when he arrived
at the hospital, he had “what looked like a black eye with a laceration right next to
the eye on the left side of his face”, and he had tenderness to his left shoulder and
hip.13 Dr. Townsend opined that the injuries suggested that Claimant fell onto his
left side and onto his face.14
According to the records, the emergency room staff decided to close the cut
on Claimant’s face with stitches.15 While the stitches were being applied, Claimant
developed slurred speech, a stutter, and difficulty uttering words.16 The doctors
noted Claimant’s high blood pressure and that Claimant was reporting new
“clumsiness” in his right hand.17
Dr. Townsend testified that the emergency room doctors then activated its
stroke alert procedure.18 A CT angiogram performed on Claimant showed a mild
13
Id. at 9–10.
14
Id. at 10.
15
Id.
16
Id.
17
Id. at 10-11.
18
Id. at 11.
5
buildup of plaque in the right internal carotid artery and mixed plaque that was
calcified and non-calcified on the left side at the carotid bifurcation.19 The records
also showed that a new clot was blocking the blood vessel in the left carotid artery.20
Claimant was then seen by a stroke neurologist who decided that Claimant should
be given a TPA (a clot buster)21 and Claimant’s blood pressure would be lowered
with an IV infusion of blood pressure medicine.22
Dr. Townsend stated that Claimant “became acutely aphasic and his right
extremity became flaccid”23 while the blood pressure medication was being
administered to Claimant. Claimant’s stroke-like symptoms increased as his blood
pressure dropped.24 Dr. Townsend explained the reason for this occurrence:
[I]n the case of somebody that has a long-standing high blood pressure,
when you acutely drop the pressure, the cerebral blood flow has a
certain type of regulatory process where it – the brain likes to maintain
the blood flow at a very even level, but when you get to a certain blood
pressure level, it drops off dramatically. And in patients with normal
blood pressure taken down to 130 systolic blood pressure, which is the
upper number, wouldn’t have much of an effect on the cerebral blood
flow. In this case with the person having high blood pressure likely for
a period of time, you suddenly drop their blood pressure to 130, which
19
Id.
20
Id. at 13.
21
Id. at 15.
22
Id.
23
Id. at 15–16.
24
Id at 16.
6
wouldn’t be a big deal for a normal person, you’re going to put him on
the rapid drop-off and make his cerebral blood drop dramatically over
a very narrow range of blood pressure, which is likely what happened
here…
…
… And if you already don’t have blood flow to an area because of a
clot there, if you suddenly take blood pressure, or take away the
cerebral blood flow, then more area is going to be affected, and you get
the effect of getting a bigger stroke.25
Dr. Townsend testified that the emergency room staff then increased
Claimant’s blood pressure to the 160 range after noticing that Claimant’s symptoms
worsened after the treatment.26 Around 6:00 p.m. later that day, another CT
angiogram was performed on Claimant.27 According to Dr. Townsend, this CT
“showed a long segment of occlusion in blood vessels above the level of the
blockage, which suggests that the clot broke off from that, a big clot, and went
further north, which likely produced the additional strokes.”28 After the CT, a
procedure was performed on Claimant and a stent was inserted after removal of a
clot from the carotid artery and a large fragment of embolic clot.29
25
Id. at 16–17.
26
Id. at 17.
27
Id. at 18.
28
Id.
29
Id. at 19–20.
7
 In Dr. Townsend’s opinion, Claimant’s fall off the scaffolding more likely
than not caused or contributed to his stroke.30 Dr. Townsend stated that Claimant
would not have suffered the massive stroke but for the fall off of the scaffolding.31
Dr. Townsend explained:
[The fall] could have caused stretching of the carotid artery, which
could have caused a fracture of the preexisting plaque, which would
then give rise to more thrombus, which could then embolize into the
upper blood vessels. Or that the fall caused a direct trauma to the
carotid artery, which then had a tear in the area of the preexisting
plaque, which gave rise to the thrombus, which then gave rise to his
stroke.32
In addition, Dr. Townsend offered that Claimant’s very high blood pressure
rate at the emergency room was, in part, related to his pain that was caused by the
work accident.33 Dr. Townsend explained that it would have been reasonable for the
emergency room staff to try to lower his blood pressure but not “down quite as far
as they got it while treating him.”34 Dr. Townsend stated:
So, it’s my opinion that there are issues that occurred as a result of the
fall likely increasing his blood pressure. The fact that he potentially
hyperextended his neck and had evidence for a new thrombosis in an
area where he’s had a persistent blood clot all points to the fact that the
30
Id at 44.
31
Id. at 47.
32
Id. at 44–45.
33
Id. at 46.
34
Id. at 47.
8
 work-related injury did play a substantial role in his developing the
stroke following the injury.35
He also testified that the several-hour delay in the stroke symptoms would be
consistent with this type of an injury.36
Testifying on behalf of Employer by deposition, Dr. Fedder said that he is a
neurological surgeon, he conducted a comprehensive examination of Claimant on
December 19, 2017 while Claimant’s son was present, he reviewed the available
pertinent medical records, and he relied upon this examination and the records to
reach his opinion.37 Dr. Fedder’s opinion is that the fall and the stroke are
unrelated.38
Dr. Fedder testified that Claimant reported in the Employee Report of Injury
or Illness that he fell, primarily, on his hip, shoulder, and elbow.39 Dr. Fedder opined
that the emergency room’s “clinical assessment coupled with the accurate and clear
penmanship of [Claimant] in his employee statement supports an intact neurologic
examination and a grossly architecturally stable spine.”40 He added that this opinion
35
Id. at 51–52.
36
Id. at 52.
37
Dr. Fedder’s Deposition, at 5, 8–12.
38
Id. at 12.
39
Id. at 13.
40
Id. at 13–14.
9
was supported by imaging.41 Dr. Fedder explained that “[t]he initial CAT scan of
[Claimant] at 12 o’clock was essentially normal other than swelling around the
laceration of his left lateral orbital area, and the CT scan of his cervical spine done
in the emergency room does not identify fracture or dislocation.”42
Dr. Fedder stated that Claimant had a longstanding history of hypertension
that set him up to have a stroke.43 He explained that Claimant’s “hypertension was
longstanding and unfortunately untreated, leading [Claimant] to the serious
condition he was in.”44 He also testified that Claimant “obviously had many strokes
before” the date of the accident.45 Dr. Fedder also stated that there was no evidence
that Claimant’s injuries impacted either the carotid or vertebral arteries in the neck.46
In addition, Dr. Fedder asserted that the emergency room records showed no
evidence of neurological deficits at the time of admission. He also said that the
subsequent neurological deficit were not related to the “relatively minor fall.”47
41
Id. at 14.
42
Id.
43
Id. at 15.
44
Id. at 16–17.
45
Id. at 16.
46
Id. at 20.
47
Id. at 25.
10
 Dr. Fedder described Claimant’s presentation as being significantly
neurologically impaired and unable to communicate in a meaningful way, other than
to give a thumbs up or thumbs down.48 Claimant indicated that he was a daily
smoker of one to two packs of cigarettes a day (although he had stopped smoking by
the time of the examination).49 Claimant also attends physical therapy sessions three
times a week and is taking several medications, post-stroke, for hypertension.50
Dr. Fedder provided his diagnostic impression in relation to the work
accident.51 He testified that Claimant had sustained a “scalp laceration, left shoulder
and left hip contusion.”52 Concerning the stroke, Dr. Fedder stated that it “is an
independent event related to [Claimant’s] clear history of longstanding and unrelated
hypertension and tobacco usage.”53
Dr. Fedder based this conclusion on Claimant’s documented history of
hypertension, an EKG that demonstrated signs of left ventricular strain from
hypertension, and CT scans that showed evidence of prior strokes. He also pointed
48
Id. at 23.
49
Id. at 24.
50
Id.
51
Id. at 29.
52
Id.
53
Id.
11
out that Claimant “did not have signs or symptoms of any neurologic event at the
time of his fall from the scaffolding.”54 Claimant did not lose consciousness, was
able to bear weight, filled out his statement in neat penmanship, provided a history,
and did not manifest any neurological abnormalities until 12:45 p.m. 55 He also noted
that the records showed no evidence to support a diagnosis of traumatic brain injury,
including a concussion, related to the work accident.56
In Dr. Fedder’s opinion, the stroke was unrelated to the fall but was
exacerbated by the effort in the emergency room to lower Claimant’s blood pressure.
Dr. Fedder explained:
When you have longstanding, untreated hypertension, your body gets
used to it and it becomes necessary in order [to] maintain perfusion to
the brain, particularly when perfusion of the brain is compromised by
significant atherosclerotic stenosis and/or occlusion of the major
feeding blood vessels to the brain. When you reduce the blood pressure
in a person like that, even to levels that would still be considered
elevated, they fall below the ability of the brain’s cerebrovascular
regulatory capacity and causes ischemic changes and vascular
embarrassment of the brain, leading to the situation that happened
here.57
54
Id. at 32.
55
Id. at 32–33.
56
Id. at 34.
57
Id. at 31.
12
 Dr. Fedder disagreed with Dr. Townsend’s contention that the fall could have
caused an embolism to break loose from the carotid artery at the time of the fall.58
Dr. Fedder opined that if that were the case, Claimant “would have manifested with
a stroke at the time of the fall” instead.59
Mr. Ritter, Claimant’s coworker, testified that he was present at the job site
on the morning of the fall, he heard somebody yell but did not see Claimant fall, and
Claimant told him that his shoulder and side were hurting but did not complain of
any head or neck pain.60 Claimant also had a small cut near his eye that was bleeding
(Mr. Ritter thought that the cut came from Claimant’s safety glasses).61 Mr. Ritter
said that prior to the accident Claimant was wearing a harness, a hard hat (the hard
hat had fallen to the ground during the accident), and safety glasses.62
Mr. Ritter testified that Claimant stated that he was “okay,” he did not ask for
medical treatment, and he was a little drowsy but seemed fine otherwise.63 Mr. Ritter
also said that Claimant was standing and walking with the help of other people.64
58
Id. at 45.
59
Id.
60
The Board Hearing of April 19, 2019, at 100.
61
Id.
62
Id.
63
Id. at 101.
64
Id.
13
Additionally, Mr. Ritter said that he was aware that Claimant was a longtime smoker,
previously reported headaches while at work, and previously asked for Tylenol
(twice several months before the accident).65 Mr. Ritter did not have knowledge of
Claimant’s blood pressure rate or any prior falls.66
Kyle Furtaw, the project manager and Employer’s safety coordinator, testified
that he arrived at the scene of the accident shortly after it occurred. 67 Mr. Furtaw
testified that Claimant complained of pain to his left side and left leg, had a laceration
to his eye,68 and was a “little shaken up.”69 Claimant did not complain to Mr. Furtaw
of head or neck pain.70 Claimant was then taken to the hospital in an ambulance and
Mr. Furtaw followed the ambulance.71 At the hospital, Claimant complained about
his left leg and the doctors closed the cut near his eye with stitches.72
65
Id. at 102.
66
Id. at 103.
67
Id. at 108.
68
Although Mr. Furtaw testified that the laceration was to Claimant’s eye, other testimony indicate
that the laceration was near the eye.
69
Id. at 109.
70
Id.
71
Id. at 110.
72
Id.
14
 Mr. Furtaw stated that he witnessed the onset of Claimant’s mini-stroke, which
occurred approximately two hours after they arrived at the hospital.73 Mr. Furtaw
said that the doctors questioned Claimant about whether he knew what was going on
and Claimant had trouble speaking.74 Mr. Furtaw testified that the doctor said that
the mini-stroke did not have a correlation to the work accident.75 Mr. Furtaw
testified that he did not know whether Claimant had hit his head during the
accident.76 He also stated that someone on the hospital staff (he did not remember
the individual’s name or position) told him that the Claimant’s blood pressure was
the cause of the TIA (mini-stroke).77
Rhonda Malatesta testified that she handles workers compensation claims for
Employer and is on its safety committee.78 She stated that Claimant had a prior
claim relating to a previous fall off of scaffolding that had occurred around 2013.79
There was no allegation of a stroke related to the first fall. Ms. Malatesta testified
73
Id. at 112.
74
Id. at 113.
75
Id. at 114.
76
Id. at 117.
77
Id. at 118.
78
Id. at 121.
79
Id. at 123.
15
that she was aware that Claimant had pre-existing high blood pressure and was a
longtime smoker.80 She also stated that she was aware that Claimant’s brother had
suffered two strokes. According to Ms. Malatesta, the Petition was the first time that
Employer knew that there was a claim that the stroke was caused by the work
accident.81
On April 19, 2018, the Board issued its decision granting Claimant’s Petition.
The Board ordered that Employer pay Claimant’s outstanding medical expenses,
attorney’s fee in the amount of $8,000.00, and medical witness fees. The Board also
ruled that Claimant would be placed on an open agreement for total disability
beginning on the date of the work accident.
The Board determined that the issue was “whether Claimant’s stroke was
causally related to his fall from a scaffold on May 11, 2017.”82 In finding that the
stroke was causally related to the fall, the Board stated that it relied on the opinion
of Dr. Townsend. It stated that it found Dr. Townsend’s testimony to be more
reliable than that of Dr. Fedder.
The Board stated that this was a “but for” case, finding that:
The fact that Claimant’s hypertension was a pre-existing condition,
latent or not, does not matter, he was in the hospital being treated for
80
Id. at 124.
81
Id. at 128.
82
The Board’s April 19, 2018 Opinion, at 21.
16
injuries related to the fall at work. Simply put, but for the work accident
Claimant would not have been in the emergency room that day
ultimately getting treated for hypertension. The Board also finds it
credible that Claimant’s blood pressure temporarily increased as a
result of the accident. This is not a situation where medical opinions
differ as both doctors agreed that the treatment of high blood pressure
caused a massive stroke… Dr. Townsend specifically noted that were
it not for the accident Claimant would not have had the treatment to
rapidly reduce his blood pressure.83
b. Appeal to this Court of the Board’s Initial Decision
On May 16, 2018, Employer filed a Notice of Appeal of the Board’s decision.
On appeal, Employer argued that the Board ignored the progression and timeline of
events while Claimant was in the emergency room. Employer argued that
Claimant’s treatment and causes for treatment were bifurcated into treatment for his
fall and separate treatment for a stroke that happened during his hospital stay that
was unrelated to his fall.
On May 1, 2019, this Court reversed and remanded the Board’s decision.84
The Court focused on the issue of causation. The Court found that the expert
testimony presented the Board with three choices as to causation:
1) the stroke was a coincidence, unrelated to the fall, 2) the fall caused
trauma to the carotid artery itself, which caused a stroke, or 3) embolic,
non-calcified plaque was loosened by the trauma of the fall, travelled
to the carotid artery and was the proverbial straw that broke the camel's
back, causing the stroke.85
83
Id. at 22.
84
Barrett Business Services, Inc. v. Edge, 2019 WL 2070460 (Del. Super. May 1, 2019).
85
Id. at *2.
17
 The Court found that the Board did not adopt any of these choices. The Court
noted that the Board simply awarded compensation on the basis that “but for the
work accident Claimant would not have been in the Emergency Room that day
ultimately getting treated for hypertension”86 although all of the experts agreed that
the TPA (clot buster) dramatically increased the severity of the stroke.
The Court held that the central question put to the Board was whether the work
accident caused the stroke but “[t]he Board made no finding whether the [stroke]
was caused by the workplace accident” or “whether the treatment for hypertension
was related to the workplace accident.”87
The Court also found that the Board and Claimant’s expert did not relate the
increase in blood pressure to the stroke. In addition, the Court wrote that, although
the Board found that the TPA (clot buster) caused Claimant’s blood pressure to drop
dramatically which caused “dramatic effects” on the stroke, “the Board did not make
a finding whether and how the administration of the TPA was a result of the
accident.”88
The Court concluded:
86
Id. at *3.
87
Id.
88
Id.
18
 The Court does not presume that the Board intended to set new
precedent making the Employer the general health insurer of its
employees. But in order to sustain the Board's ruling, a reviewing Court
must be able to see that the Board has found that “but for” the workplace
accident, the stroke and its aftermath would not have occurred. There
was at least some expert testimony that this was true, but in adopting
the broad approach that it did, the Board did not rely on these expert
theories.89
In reversing and remanding, the Court held:
The Claimant in this case may be [sic] deserve the compensation
ordered in the Board's prior decision. By this Opinion, the Court does
not mean to suggest that he is not. The Court remands only because the
Board's decision does not articulate findings on causation sufficient to
allow the reviewing Court to engage in appellate review of its findings.
On the other hand, the Board may determine that it must hear more
testimony before it can make its findings on causation.90
c. The Board’s Decision on Remand
On June 6, 2019, the Board held a hearing to determine the course and scope
of the remand proceedings.91 At the hearing, Employer asserted that there is a
statutory right at a remand hearing to present new evidence and arguments limited
to the reasons why the case was remanded. Employer argued that because the
“problematic portion [of the Board’s decision] was the expert opinion … [Employer]
89
Id.
90
Id. at *4.
91
Prior to remand, one of the original Board members at the determination proceeding had retired.
As such, on remand, the Board included a new Board member. The record does not reflect that
Employer raised this issue at or before the remand hearing.
19
[is] entitled to present new evidence on the expert opinions,” including, possibly,
new depositions, new experts, and a new defense medical examination (“DME”).92
In addition, Employer contended that it was legally entitled to have Claimant
undergo a new DME, whether or not the Board allows it as evidence.93
In contrast, Claimant argued that a remand hearing and new evidence were not
necessary because the record is complete.94 Claimant asserted that the Board was
merely required to add one sentence to its order stating that Claimant’s high blood
pressure, caused by the pain from the fall, was being treated in the hospital and led
to the stroke.95 Claimant also argued that, at its discretion, the Board could address
whether the trauma of the fall caused a piece of plaque to loosen, causing the
stroke.96 In addition, Claimant asserted that a new DME was not necessary because
Claimant’s condition had not changed.97
On June 18, 2019, the Board issued its order determining the course and scope
of the remand proceedings. The Board determined that a hearing would be held, but
92
Hearing to Determine the Scope of Remand Proceedings Transcript, at 8-9.
93
Id. at 7.
94
Id. at 6.
95
Id. at 5.
96
Id.
97
Id. at 10.
20
limited the hearing to the issue for which the Board’s first decision was remanded.
The Board found that the “issue for remand is a clarification and explanation of the
Board’s findings on causation.”98 The Board wrote that the Superior Court held that
the Board’s decision did not “sufficiently link” the Board’s determination of
causation to “the opinions of Claimant’s medical expert, Dr. John Townsend.”99 As
such, the Board limited the evidence to this issue.
In its order, the Board held that:
The parties may obtain updated testimony from their medical experts
to address the medical causation issue however the Board notes that,
based on the decision on appeal, there is limited relevance (if any) for
other fact witnesses. Put simply the evidence presented must relation
to how Claimant’s stroke could have been causally related to his fall at
work medically.100
The Board also found that another DME would not be relevant because the
issue on remand did not concern Claimant’s current medical condition. Therefore,
the Board concluded that it was not reasonable to require Claimant to undergo
another DME.
On September 27, 2019, the Board held the remand hearing. Employer
submitted an updated deposition from its expert, Dr. Fedder. Claimant did not
98
The Board’s Order to Determine the Scope of the Remand Proceedings, at 2.
99
Id.
100
Id. at 2–3.
21
present an updated deposition of its expert, Dr. Townsend. Consistent with the
Board’s order, there were no additional witnesses.
In the updated deposition, Dr. Fedder again testified that Claimant’s stroke
was not related to the work accident. He opined that Claimant would have suffered
a stroke regardless of the work accident and that it was just a coincidence that he
suffered a stroke several hours after the work accident.101 He stated that: “I don’t
see a medical basis for linking the stroke to the … physiologically minor work
event.”102 He concluded that the stroke was caused by “the accumulated damage of
years of untreated and significant hypertension” and that there was no evidence that
the work accident accelerated any condition that led to the stroke.103 He also said
that the treatment for the work accident injuries was not responsible for causing
Claimant’s stroke.104
Dr. Fedder maintained that Claimant did not sustain a traumatic brain injury
or concussion.105 He pointed out that Claimant’s employee incident report
(completed on the day of the accident but before the stroke) reflected that Claimant’s
101
Dr. Fedder’s Second Deposition, at 21, 34–35.
102
Id.
103
Id. at 32.
104
Id. at 34.
105
Id. at 7–8.
22
penmanship was legible, neat, and accurate.106 He also suggested that the emergency
room staff did not perform imaging of Claimant’s head when he first arrived because
“there was nothing to suspect intracranial processes.”107 In addition, Claimant was
able to provide his history to the emergency room staff.108
Dr. Fedder also described the fall as “physiologically minor.”109 He observed
that Claimant sustained a “scalp laceration” without intracranial bleeding or
fractures, a contusion to the left shoulder without fractures, and trauma to his left hip
without fractures.110 Additionally, he said that there was no evidence that the fall
caused a tear in Claimant’s blood vessel.111
Dr. Fedder also testified that the fall did not affect Claimant’s blood
pressure.112 He stated that Claimant’s blood pressure was high before the accident113
and pointed out that Claimant had a long history of hypertension.114 In addition, and
106
Id.
107
Id. at 20.
108
Id.
109
Id. at 19.
110
Id. at 19–20.
111
Id. at 23.
112
Id. at 8.
113
Id. at 10.
114
Id.
23
consistent with a history of hypertension, Dr. Fedder explained that the CT scan
showed that Claimant had a prior stroke in the right thalamus, several small vessel
disease strokes in the remainder of the brain, chronic left carotid occlusion, and
significant atherosclerosis of the intracranial arteries.115 Additionally, Dr. Fedder
stated that Claimant did not see a family doctor on a regular basis and was not taking
medication for hypertension.116 He considered Claimant’s high blood pressure to be
an event that was independent to the accident.
Dr. Fedder also said that, even if the fall resulted in an increased blood
pressure, the TPA (clot buster) was not administered in response to the accident.117
Dr. Fedder explained that the TPA was administered in response to Claimant’s
neurologic deficits that occurred a couple of hours after Claimant arrived at the
emergency room.118
Dr. Fedder disagreed with the Board’s finding (in its original decision) that
treatment for Claimant’s high blood pressure began immediately upon presentation
to the emergency room.119 Dr. Fedder testified that the records showed that Claimant
115
Id. at 8–9.
116
Id. at 8.
117
Id. at 19.
118
Id.
119
Id. at 12.
24
arrived at the emergency room at 10:34 a.m. but that he did not receive significant
intervention with his blood pressure until 12:45 p.m. 120 Dr. Fedder stated that the
blood pressure treatment was administered when it was determined that Claimant
was a candidate for TPA (clot busters).121
Concerning the issue as to whether Claimant’s high blood pressure caused the
stroke, Dr. Fedder testified that Claimant’s high blood pressure set the stage for his
stroke.122 He stated that high blood pressure was “the causal factor, and certainly
the medical basis for all the many strokes that were present in the brain” before the
accident.123 In his opinion, the stroke was not an acute stroke caused by an acute
hypertensive crisis.124 Furthermore, Claimant had preexisting risk factors for a
stroke125— significant hypertension126 and a history of tobacco use.127
120
Id.
121
Id.
122
Id. at 13.
123
Id.
124
Id. at 14.
125
Id. at 21–22.
126
Id. at 22.
127
Id.
25
 Concerning Dr. Townsend’s argument that the stroke was a delayed result of
trauma to Claimant’s carotid artery, Dr. Fedder asserted that such cases are
“extraordinarily rare.”128 He testified that he had seen less than ten cases of acute
trauma causing a stroke.129 Dr. Fedder maintained that the work accident was not
associated with intracranial trauma or neck trauma and there was no evidence of
stretching of the carotid artery.130
On October 22, 2019, the Board issued its decision on remand. The Board,
again, found in favor of Claimant.131 The Board acknowledged that the case was
remanded because the Court found that the Board “did not provide an adequate
record for appellate review by failing to provide conclusions linked to one of the
causation theories espoused by Claimant’s expert, Dr. Townsend.”132
The Board stated that it was not convinced that the accident caused Claimant’s
blood pressure to increase. It wrote that the testimony that the pain from the accident
increased Claimant’s blood pressure was “speculative and insufficient to Claimant’s
128
Id. at 28.
129
Id. at 31.
130
Id. at 26, 31.
131
The Board mailed its decision on October 29, 2019.
132
The Board’s October 22, 2019, Opinion, at 25.
26
burden of proof.”133 The Board pointed out that there was no evidence that provided
Claimant’s baseline blood pressure prior to the accident that could be compared to
Claimant’s blood pressure after the accident.
Nevertheless, the Board found for Claimant because Dr. Townsend had
testified “that the fall at work caused the preexisting arteriosclerosis or plaque to
move or break off ultimately resulting in the stroke.”134 The Board wrote:
Dr. Townsend testified that there was evidence of calcified or old
plaque as well as evidence of non-calcified or newly formed plaque.
This evidence demonstrates that something happened on that morning
which ultimately resulted in the new occlusion at the bifurcation which
caused a massive stroke. Dr. Townsend provided studies as evidence
that the symptoms can have a delayed onset when an artery is injured.135
The Board concluded that Dr. Townsend’s viewpoint, “while not the strongest
evidence, is sufficient to carry Claimant’s burden of proof.”136 The Board noted that
“[m]edical evidence stating a possibility of causation is sufficient when combined
with other evidence tending to show causation.”137 The Board reasoned:
Dr. Townsend’s opinion that the fall may have caused an injury to the
artery combined with the fact that Claimant was not having any
symptoms related to hypertension and carotid artery disease prior to the
133
Id. at 26.
134
Id. at 27.
135
Id.
136
Id.
137
Id.
27
 accident rises above the minimum evidentiary threshold for Claimant
to meet his burden to prove his stroke was causally related to the work
accident. Consequently, the Board finds Claimant’s stroke causally
related to the compensable work accident and awards Claimant medical
expenses and ongoing disability.138
The Board also awarded Claimant $3,750.00 in attorney’s fees, in addition to
the $8,000.00 awarded in the Board’s initial decision. The Board took into account
the attorney’s fees customarily charged in the locality and found that this amount
represented a reasonable fee.
d. Appeal to this Court of the Board’s Decision on Remand
On November 26, 2019, Employer filed a Notice of Appeal of the Board’s
second decision.
On February 10, 2020, Employer filed its Opening Brief.
On February 20, 2020, Claimant filed his Answer.
On February 27, 2020, Employer filed its Reply.
Parties’ Contentions
Employer contends that the Board committed legal error and abused its
discretion when it denied Employer’s request to introduce “new, relevant testimony”
on “the question of the medical cause of the stroke and whether it had any relation
to the work accident.”139 Employer asserts that the Board should have allowed new
138
Id. at 28.
139
Employer’s Opening Brief, at 17.
28
evidence, a new hearing was required because one of the original hearing officers
was absent from the remand hearing, and that attorney fees should not have been
awarded. Employer also contends that the Board’s decision was not supported by
substantial evidence.
Employer asserts that the law requires that a party be allowed to present
additional evidence on the problematic issue (medical causation) on remand at the
remand hearing.140 Employer argues that, concerning the issue of causation, it
“determined that an additional medical expert was needed from a different medical
specialty.”141 However, the Board limited Employer “to re-deposing the same
medical expert it had used previously.”142
In addition, Employer argues that a substitute Board member at the remand
hearing who did not participate in the original hearing was improper. Employer
states that the original Board heard testimony from three live witnesses, which
provided information of Claimant’s history, the accident, and Claimant’s appearance
and demeanor after the accident. Employer argues that this testimony was critical
and the new Board member should have been “afforded the opportunity to scrutinize
140
Id. at 19, citing Morris James LLP v. Weller, 2018 WL 1611267 (Del. Super. Mar. 29, 2018);
Johnson Controls v. Haines, 1999 WL 743570 (Del. Super. Aug. 17, 1999).
141
Id. at 20.
142
Id.
29
the witnesses, including the opportunity to ask questions directly.” 143 Employer
explains that the Board’s decision that the stroke was caused by the work accident
“is only legitimate if the [C]laimant sustained a meaningful blunt trauma to the head
or neck.”144 Employer argues that the live testimony is necessary to determining
whether that trauma to the head or neck occurred.
Employer also argues that the substitution of a Board Member made it
impossible for the Board to clarify its prior decision, making a de novo hearing
necessary. Employer explains that it is “impossible for the Board to clarify its
reasoning and conclusions because one-half of the decision making body is no longer
available to provide such clarifications.”145
The last legal error alleged by Employer concerns the Board’s decision to
award Claimant attorney’s fees in the amount of $3,750.00 on remand, in addition
to the $8,000.00 attorney’s fees awarded at the original hearing. Employer argues
that Claimant should not have received additional attorney’s fees for the remand
hearing because Claimant “received no additional benefit.”146
143
Id. at 21.
144
Id.
145
Id.
146
Id. at 24, citing Playtex Prods. v. Woodall, 2004 WL 2735455, at *7 (Del. Super. Oct. 7, 2004).
30
In addition to the alleged legal errors and abuse of discretion, Employer
contends that the Board’s decision was not supported by substantial evidence.
Employer writes that the Board stated that it relied on Claimant’s expert’s opinion
that the fall “caused the preexisting arteriosclerosis or plaque to move or break off
ultimately resulting in the stroke.”147 However, Employer points out that Claimant’s
expert was more equivocal, saying that the fall “could also stretch the carotid artery
upwards and backwards, that could produce an issue within the clot, or cause a clot
to break off and go further upstream.”148
Employer also challenges Claimant’s expert’s statement that “we know that
he fell on the left side of his head and struck the lateral part of his face” because
there is no evidence that Claimant fell on his head.149 Employer notes that the
testimony established that Claimant fell on his hip, a witness testified that he did not
know whether Claimant hit his head, and Claimant’s own incident report states that
he impacted his hip, should, and elbow (and did not mention head).
Employer also contends that the Board’s findings from the original hearing
and the findings from the remand hearing are contradictory. Employer states that
the Board’s original decision found that Claimant “did not sustain direct trauma to
147
Id.
148
Id. at 26 (emphasis in Employer’s Opening Brief).
149
Id.
31
the carotid artery”150 but the Board’s remand decision accepted Claimant’s expert’s
opinion that the fall may have caused an injury to Claimant’s carotid artery.
Employer writes that, “[w]ithout direct trauma to the head, neck, or carotid artery,
[Claimant’s expert’s] entire opinion is rendered baseless and not grounded in
reality.”151
Employer also asserts that, while Claimant’s expert based his opinion on
“mere speculation,” Employer’s expert “repeatedly and thoroughly disproved
[Claimant’s expert’s] contentions by citing to the actual studies and tests performed
on the Claimant, including confirmation that there was no new plaque.”152
Employer further asserts that Claimant’s expert’s testimony was focused on
the general population and not specifically on Claimant. Employer also points out
that the studies relied upon by Claimant’s expert show that it is extremely rare that
a stroke is caused by acute trauma and that the expert failed to reconcile this extreme
rarity with the facts of the case. Employer additionally argues that the expert
committed a logical fallacy by opining that the lack of symptoms before the fall
suggests that the stroke was related to the fall.
150
Id. at 27.
151
Id.
152
Id. at 28.
32
 Claimant asserts that the Board’s order determining the scope of the remand
hearing complied with this Court’s mandate on remand and, therefore, should be
affirmed.153 Claimant argues that, on remand, the Board properly limited the
evidence to the issue that this Court identified as problematic, namely causation.154
Claimant argues that the Court only remanded because it required additional findings
of facts on Claimant’s theory of causation and that that Board was merely required
to flesh out the arguments that the parties had made at the first Board hearing.
Claimant contends that, by granting Employer’s request for a new hearing with
updated depositions and additional argument, “the Board went above and beyond
what was required under this Court’s mandate…”155 In a footnote, Claimant asserts,
without elaboration, that “retaining new experts would go well beyond the matter on
remand.”156
153
Claimant’s Answer, at 8. Claimant cites the following text as the instructions from this Court’s
prior decision:
The Court remands only because the Board's decision does not articulate findings
on causation sufficient to allow the reviewing Court to engage in appellate review
of its findings. On the other hand, the Board may determine that it must hear more
testimony before it can make its findings on causation. Barrett Business Services,
Inc. v. Edge, 2019 WL 2070460, *4 (Del. Super. May 1, 2019).
154
Claimant’s Answer, at 9, citing Johnson Controls v. Haines, 1999 WL 743570 (Del. Super.
Aug. 17, 1999).
155
Id. at 10.
156
Id. at 8, n.1.
33
Concerning the attorney’s fee, Claimant asserts that Employer has cited no
authority that supports its position that attorney’s fees are not available when there
is a new hearing. Claimant argues that a fee is warranted for the remand hearing
because “there was a benefit conferred on the Claimant by the Board’s hearing and
the Remand Order.”157 Claimant also contends that Employer’s argument
concerning the attorney’s fee should be rejected because Employer failed to raise an
objection below.
Claimant additionally asserts that the Board’s decision to accept Claimant’s
expert’s testimony over Employer’s expert’s testimony constitutes substantial
evidence supporting the Board’s findings for the purposes of appellate review.
Claimant argues that a claimant meets the threshold for causation when “medical
evidence stating a possibility of causation when combined with other evidence
tending to show causation” is presented.158 Claimant notes that his expert testified
“that the injury to his face or neck when he fell off the scaffolding more likely than
not caused or contributed to [Claimant’s] stroke.”159 Claimant argues that his expert
157
Id. at 10–11, citing Willingham v. Kral Music, Inc., 505 A.2d 34, 36 (Del. Super. 1985).
158
Id. at 11.
159
Id.
34
“applied well-accepted medical principles to Claimant’s specific medical
condition.”160
Claimant also contends that the Board is allowed to adopt the opinion
testimony of one expert over another, which constitutes substantial evidence for
appellate review. Claimant writes that, “[h]aving heard from both experts, the Board
accepted [Claimant’s expert’s] causation opinion over [Employer’s expert’s]
opinion.”161
Standard of Review
This Court’s review of the Board’s decision is “limited to examining the
record for errors of law and determining whether substantial evidence supports the
Board’s factual findings.”162 Questions of law are reviewed de novo. Substantial
evidence means “relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”163 Substantial evidence “requires less than a
preponderance of the evidence, but more than a mere scintilla.” 164 This Court is
precluded from weighing the evidence, determining questions of credibility, or
160
Id. at 14.
161
Id.
162
Blair v. Smyrna School District, 2019 WL 1530127, at *3 (Del. Super. Apr. 5, 2019).
163
Id.
164
Gregg v. State, 2016 WL 4530614, at *4 (Del. Super. Aug. 29, 2016) (internal quotation marks
removed).
35
making its own factual findings,165 and it “must consider the record in a light most
favorable to the party prevailing below.”166 The Court will affirm the Board’s
decision if it is supported by substantial evidence and is free from legal error “even
if the Court might have, in the first instance, reached the opposite conclusion.”167
Discussion
Employer asserts that the Board committed several legal errors, abused its
discretion, and that its findings of fact were not supported by substantial evidence.
This Court finds merit to Employer’s argument that the Board erred by not
permitting new expert witnesses on the issue of medical causation when requested
by Employer.168
165
Stevens v. State, 802 A.2d 939, 944 (Del. Super. May 23, 2002).
166
Weitzel v. State, 2016 WL 4249766, at *5 (Del. Super. Aug. 9, 2016).
167
Id.
168
Employer’s contention that the Board’s decision constitutes legal error or an abuse of discretion
on the basis that one of the Board members at the remand proceedings had not participated in the
original Board decision is without merit. Employer has provided no authority for its position that
a de novo proceeding is required when there is a substitution of an officer and a transcript is
available.
In addition, Employer’s argument that the Board was required to permit the live lay witnesses
to provide new testimony in the presence of the new Board member also lacks merit. The Board
was not required to permit the live witnesses to testify on remand because those witnesses were
laypersons and did not testify concerning medical causation, which was the problematic issue on
remand. Johnson Controls, Inc. v. Haines, 1999 WL 1568334, at *1 (Del. Super. Oct. 12, 1999)
(The Court held that on remand the Board is only required to revisit the issue identified by the
Court as problematic.). Moreover, the relevant testimony of the live witnesses has not been
disputed.
36
In State v. Steen169, an appeal from the Industrial Accident Board, the
Delaware Supreme Court held that, when 19 Del. C. § 2350(b)170 and 19 Del. C. §
2348(f)171 (at the time § 2348(d)) are read together, “the statutory scheme for
conducting a hearing on remand is unambiguous.”172 The Court explained that “[t]he
Board is to decide the matter, after the remand hearing, on the basis of the evidence
from the prior hearing plus any new evidence and legal arguments the parties decide
to present.”173 In Johnson Controls, Inc. v. Haines, also an appeal from the Industrial
Accident Board, this Court clarified the Steen holding, stating that “Steen does not
169
State v. Steen, 719 A.2d 930, 934 (Del. 1998).
170
19 Del. C. § 2350(b) states:
In case of every appeal to the Superior Court the cause shall be determined by the
Court from the record, which shall include a typewritten copy of the evidence and
the finding and award of the Board, without the aid of a jury, and the Court may
reverse, affirm or modify the award of the Board or remand the cause to the Board
for a rehearing. In case any cause shall be remanded to the Board for a rehearing,
the procedure and the rights of all parties to such cause shall be the same as in the
case of the original hearing before the Board.
171
19 Del. C. § 2348(f) states:
Whenever a cause shall be remanded to the Board for a rehearing, all evidence
theretofore taken before the Board in a previous hearing or hearings shall become
part of the evidence in the hearing upon remand.
172
State v. Steen, 719 A.2d 930, 934 (Del. 1998).
173
Id.
37
require the Board to hear the entire case anew on remand, but rather, allows the
parties to revisit the issue identified by this Court as problematic.”174
More recently, this Court, again, addressed the issue in Morris James LLP v.
Weller, which was also an appeal from the Industrial Accident Board.175 The Court
explained that, pursuant to § 2350(b), “it appears on remand of a workers'
compensation claim that all evidence previously taken becomes part of the record
on remand, and that the parties may augment that record by offering additional
evidence or legal argument.”176 Citing Steen and Johnson Control, this Court held
that “on remand parties are entitled to introduce new evidence and new legal
argument with respect to the issue identified as ‘problematic.’”177
In the Instant Case, the problematic issue, for which the matter was remanded,
was the Board’s failure to make, or articulate, findings on medical causation.178
Employer had “determined that an additional medical expert witness was needed
174
Johnson Controls, Inc. v. Haines, 1999 WL 1568334, at *1 (Del. Super. Oct. 12, 1999).
175
Morris James LLP v. Weller, 2018 WL 1611267, at *4 (Del. Super. Mar. 29, 2018).
176
Id.
177
Id.
178
The Court concluded that the Board, in its initial decision, “made no finding whether the
[stroke] was caused by the workplace accident” or “whether the treatment for hypertension was
related to the workplace accident.” Barrett Business Services, Inc. v. Edge, 2019 WL 2070460, at
*3 (Del. Super. May 1, 2019). The Court also stated that it remanded the case because “the Board’s
decision does not articulate findings on causation sufficient to allow the reviewing Court to engage
in appellate review of its findings.” Id. at *4.
38
from a different medical specialty” on the issue of causation. The record shows that
Employer requested permission to call new expert witnesses in addition to being
allowed to obtain a new deposition for its original expert.179 In its Order, the Board
held that “[t]he parties may obtain updated testimony from their medical experts to
address the medical causation issue however the Board notes that, based on the
decision on appeal, there is limited relevance (if any) for other fact witnesses.” 180
As such, the Board did not provide permission for Employer to call new expert
witnesses on causation, precluding Employer from so doing.
The case law is clear that the Board must permit new evidence on the
problematic issue on remand.181 Here, the record shows that Employer requested
179
At the hearing, Employer argued, “because the problematic portion [of the Board’s original
decision] was expert opinions, under the statute and case law we are entitled to present new
evidence on expert opinions.” The Hearing to Determine the Scope of the Remand Proceedings
Transcript, at 8. Employer then argued that this new evidence could mean “new depositions” and,
also, that it “could even mean new experts if the parties see fit because this all goes into the expert
opinions.” Id. at 8-9 (emphasis added). Employer also requested “that we be permitted to a
remand hearing on the issue of the expert opinions and that we be allowed to bring in new
depositions, new experts, new evidence in accordance with the abundance of case law.” Id. at 9
(emphasis added).
180
The Board’s June 19, 2019 Order, at 2-3. The Board also stated: “Put simply the evidence
presented must relate to how Claimant’s stroke could have been causally related to his fall at work
medically.” Id. at 3. The Board’s Order is somewhat ambiguous, in that it does not explicitly
states that new expert witnesses are not allowed. However, at the very least, the Board did not
fully address Employer’s request for permission to bring in new expert witnesses, and the Order
appears to have had the effect of precluding new expert witnesses.
181
Indeed, in its order, the Board stated that “the weight of the case law supports the party
requesting a hearing on remand to present new evidence and argument” and that the evidence can
be limited to the issue on remand, which the Board identified as medical causation. The Board’s
June 19, 2019 Order, at 2. However, the Board then proceeded to deny (or ignore) Employer’s
request for new evidence (in the form of experts) on the issue of medical causation.
39
permission to call new expert witnesses on the problematic issue (medical
causation). Because the Board failed to permit new expert witnesses on causation
when requested, it committed legal error.182 Therefore, reversal and remand are
warranted on this ground.183
As the Board’s decision is reversed and remanded, and additional expert
witnesses may testify on causation, this Court declines to address Employer’s
argument that the Board’s findings of fact are not supported by substantial
evidence.184 In addition, it would be inappropriate for the Court to make a decision
182
Claimant does not cite legal authority for the position that the Board was not required to allow
requested new expert witness testimony on causation at the remand hearing. Instead, Claimant
suggests, in a footnote, that the record does not support Employer’s assertion that it had requested
new experts (Claimant states that the Board’s order does not reference such a request and that
Employer’s Opening Brief does not cite to the record where the request was made). See Claimant’s
Answer, at 8, n. 1. However, as discussed in this Opinion, the transcript of the hearing to determine
the scope of the remand proceedings shows that Employer did request permission to have new
experts (and Employer cites to the transcript in its Reply). The Hearing to Determine the Scope of
the Remand Proceedings Transcript, at 8. In addition, Claimant merely asserts (without
elaboration) that, assuming arguendo that Employer had made such a request, “retaining new
experts would go well beyond the matter on remand.” Claimant’s Answer, at 8, n. 1. However,
Claimant does not explain why the retention of new experts on causation would go beyond the
matter on remand when causation was the matter on remand.
183
Contrary to Employer’s contention, the Board is not required to conduct a de novo proceeding
on remand; instead, it is required to allow “the parties to revisit” the issue of causation. Johnson
Controls, Inc. v. Haines, 1999 WL 1568334, at *1 (Del. Super. Oct. 12, 1999) (“Steen does not
require the Board to hear the entire case anew on remand, but rather, allows the parties to revisit
the issue identified by this Court as problematic.”).
184
See Barrett Business Services, Inc. v. Edge, 2019 WL 2070460, at *4 (Del. Super. May 1, 2019)
(In its first Opinion, this Court declined to review the substance of Claimant’s claim and reversed
and remanded the matter to the Board for further proceedings to properly address the issue of
causation).
40
on attorney’s fee at this time.185 However, when determining attorney’s fees, the
Board must keep in mind that it is required to follow the statutory limitations.186
Conclusion
Accordingly, the Board’s ruling is REVERSED and REMANDED for such
further proceedings as the Board may deem necessary consistent with this Opinion.
IT IS SO ORDERED.
/s/ Diane Clarke Streett______
Diane Clarke Streett, Judge
185
Playtex Prod., Inc. v. Woodall, 2004 WL 2735455, at *2 (Del. Super. Oct. 7, 2004) (“19 Del. §
2320(10) allows an employee to collect reasonable attorney's fees if they were awarded
compensation. The legislative purpose of this section was to relieve a successful claimant of the
legal fees and expenses necessary to obtain his just compensation. Compensation under the statute
has been defined broadly as to include any benefit or favorable change in the employee's
position.”).
186
19 Del. C. § 2320(10)(a) states:
A reasonable attorneys' fee in an amount not to exceed 30 percent of the award or
10 times the average weekly wage in Delaware as announced by the Secretary of
Labor at the time of the award, whichever is smaller, shall be allowed by the Board
to any employee awarded compensation under Part II of this title and taxed as costs
against a party. In order for the Board to award a fee under this section, counsel for
an employee shall submit to the Board an Attorneys' Fee Affidavit in a form
prescribed by or substantially in compliance with Board rules, along with a copy of
the written fee agreement signed by the employee. Any fee awarded to an employee
under this paragraph shall be applied to offset the fees that would otherwise be
charged to the employee by that employee's attorney under the fee agreement.
41
42