IN THE SUPREME COURT OF THE STATE OF DELAWARE
ELZUFON, AUSTIN, TARLOV § & MONDELL, P.A., § § No. 47, 2023 Employer Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § C.A. No. N22A-03-006 DELISA LEWIS, § § Claimant Below, § Appellee. §
Submitted: September 27, 2023 Decided: December 5, 2023
Before SEITZ, Chief Justice; VALIHURA and LEGROW, Justices.
Upon appeal from the Superior Court of the State of Delaware. AFFIRMED.
Brandon R. Herling, Esquire, WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP, New Castle, Delaware, for Appellant Elzufon, Austin, Tarlov & Mondell, P.A.
Tabatha L. Castro, Esquire, THE CASTRO FIRM, INC., Newark, Delaware, for Appellee DeLisa Lewis.
LEGROW, Justice: Elzufon, Austin, Tarlov & Mondell, P.A. (“Elzufon”) appeals from a Superior
Court Memorandum Opinion and Order affirming a decision of the Industrial
Accident Board (“IAB” or the “Board”). The appellee, DeLisa Lewis, sustained a
compensable work injury to her shoulder in 2016, for which she later underwent
surgery. Elzufon and Lewis entered into an agreement under which Elzufon agreed
to pay Lewis disfigurement benefits. Following her surgery, Lewis began
experiencing neck pain for which she sought treatment. After her first treatment,
however, Elzufon’s workers’ compensation carrier denied Lewis additional
coverage relating to her neck.
Lewis petitioned the IAB for a determination of additional compensation due,
arguing that her neck pain was causally related to the 2016 injury. In opposing the
petition, Elzufon argued that Lewis’s neck injury was not causally related to the 2016
injury and that, because it concerned a new injury, Lewis’s petition was time-barred
by a two-year statute of limitations. The IAB ruled in Lewis’s favor, concluding
that her spine injury was causally related to the 2016 injury and that her petition was
timely. The Superior Court affirmed.
Elzufon argues on appeal that we should reverse on two grounds. First,
Elzufon contends that Lewis’s causation expert rendered an opinion that was entirely
speculative and therefore did not constitute substantial evidence. Because Lewis did
not introduce other causation evidence, Elzufon argues that we must reverse. Second, Elzufon asserts that the IAB incorrectly applied a five-year statute of
limitations and that Lewis’s petition is time-barred under the appropriate two-year
statute of limitations.
The record below shows that Lewis’s expert’s opinion was not speculative;
that opinion therefore constituted substantial evidence. In addition, there is
substantial evidence to support the IAB’s determination that Lewis’s petition was
timely. We therefore affirm the Superior Court’s judgment.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
A. Lewis’s Work Injury, Surgery, and Cervical Spine Treatment
Lewis had been working for Elzufon for almost 20 years when she began
experiencing pain in her right shoulder in August 2016.1 After Lewis reported the
pain to Elzufon’s human relations office, she was referred for chiropractic
treatment.2 In 2017, a nurse in the chiropractor’s office advised Lewis to visit Dr.
Eric Johnson, who diagnosed Lewis with bone spurs in the right shoulder and
recommended surgery.3 After a round of physical therapy, on June 15, 2018, Dr.
Johnson performed surgery on Lewis’s shoulder, which was followed by another
round of physical therapy.4
1 App. to Answering Br. at B56. 2 Am. App. to Opening Br. at A11. 3 Id. 4 Id. 2 Lewis returned to work in September or October 2018.5 Upon her return, she
began experiencing neck problems,6 along with continued right-hand numbness,
tingling, and tightness.7 When Lewis followed up with Dr. Johnson, he concluded
that her right-shoulder problems were successfully treated but referred her to Dr.
Newell for possible neck issues.8
Lewis sought treatment at First State Orthopedics for her neck beginning in
February 2019.9 On February 12, 2019, Lewis underwent an MRI.10 The results of
the MRI showed a disc osteophyte complex.11
Dr. Newell began treating Lewis on March 20, 2019.12 During that visit, Dr.
Newell prescribed further physical therapy.13 Dr. Newell later testified that he was
considering two potential diagnoses when he began treating Lewis: thoracic outlet
syndrome and cervical radiculopathy.14 To assist with the diagnosis, and to treat
Lewis’s symptoms, Dr. Newell recommended steroid epidural injections,15 which he
administered on April 8, 2019 and April 22, 2019.16 Lewis reported having complete
5 Id. at A12. 6 Id. 7 Id. at A11. 8 Id. 9 Id. at A8. 10 Id. at A9. 11 Id. 12 Id. at A32. 13 Id. at A11–12. 14 Id. at A35–38. 15 Id. at A11–12. 16 Id. at A8. 3 relief after the injections, which Dr. Newell believed suggested a cervical
radiculopathy.17 Lewis’s symptoms gradually returned after five or six months.18
After the first injection, Elzufon’s workers’ compensation carrier denied
Lewis coverage for further medical treatment.19 Lewis continued with physical
therapy until it became cost prohibitive.20
In July 2019, the parties entered into an agreement for disfigurement benefits
for “surgical scarring to the right upper extremity.”21 The agreement referenced the
“cause of accident” as “repetitive use of the right arm” and the date of injury as
August 29, 2016.22 Under the agreement, Elzufon paid Lewis seven weeks of
disfigurement benefits relating to her shoulder.23 The record does not indicate when
those payments were made.
Lewis visited Dr. Johnson again on January 8, 2020.24 During that visit, Dr.
Johnson “assessed a cervical radiculopathy and believed [Lewis’s] neck and
shoulder spasms were contributing to her symptoms.”25
17 Id. 18 Id. at A12. 19 Id. 20 Id. 21 Id. at A17. 22 Id. 23 Id. at A2. 24 Id. at A19. 25 Id. 4 On May 20, 2021, shortly after Lewis filed her Petition to Determine
Additional Compensation Due (the “Petition”) with the IAB, Lewis visited Dr.
Newell.26 During that visit, Lewis reported that her symptoms had improved after
physical therapy but had never completely resolved.27 She also reported that the
symptoms were worsening and expressed interest in receiving the same injections
that Dr. Newell prescribed two years earlier.28 At the time of his deposition on
January 13, 2022, Dr. Newell had not administered additional injections.29
B. The IAB Proceedings Below
On April 1, 2021, Lewis filed the Petition seeking further medical treatment
for the cervical spine injury, which she claimed was causally related to her 2016
work injury.30 Elzufon argued that any injury to Lewis’s spine was not causally
related to the 2016 injury.31
The IAB held a hearing on the Petition on January 31, 2022.32 Before the IAB
took testimony, Elzufon moved to dismiss the Petition, arguing that Lewis’s cervical
spine injury was unrelated to the 2016 injury and that her Petition was time-barred
by a two-year statute of limitations.33 After deliberating, but before hearing
26 Id. at A9. 27 Id. 28 Id. 29 Id. at A45–46. 30 Id. at A2. 31 Id. 32 App. to Answering Br. at B43–77. 33 Id. at B46–47. 5 testimony, the IAB denied the motion on the grounds that a five-year limitations
period applied and that Lewis filed the Petition within five years of the alleged
injury.34 The IAB noted that it would provide additional rationale in its written
decision.35
Dr. Newell testified by deposition on Lewis’s behalf.36 Lewis testified at the
hearing.37 Dr. Scott Rushton, an orthopedic spine surgeon who had previously
evaluated Lewis, testified by deposition in support of Elzufon.38
Dr. Newell opined that Lewis’s cervical spine problems were causally related
to her 2016 work injury.39 He diagnosed Lewis with cervical radiculopathy for
which treatment was reasonable, necessary, and causally related to her prior work
injury.40 According to Dr. Newell, Lewis’s neck problems, like many patients who
undergo shoulder surgery, were an “indirect unfortunate consequence of being
treated surgically.”41 Dr. Newell’s opinion was partially based on the circumstances
under which Lewis’s spinal injury arose: she had not sustained an isolated injury to
her cervical spine, and her complaints began after surgery.42 In Dr. Newell’s view,
34 Id. at B48. 35 Id. 36 Id. at B48–56. 37 Id. at B56–68. 38 Id. at B69–72. 39 Am. App. to Opening Br. at A7, A10. 40 Id. at A7–8. 41 Id. at A50. 42 Id. at A51–52. 6 if Lewis had not sustained the shoulder injury, she would not have undergone the
surgery that gave rise to her neck issues.43
Dr. Newell testified that, during his physical examination of Lewis, she
demonstrated an abnormal reflex bilaterally, which can be normal, and that she had
a positive Spurling’s maneuver, which is typical of an injured or entrapped nerve of
the neck.44 Based on this information, Dr. Newell was considering diagnosing
cervical radiculopathy affecting the right C6 nerve root between the fifth and sixth
bones of the neck.45 Dr. Newell testified that he therefore recommended epidural
steroid injections to settle the nerve and to assist his diagnosis.46 According to Dr.
Newell, a successful injection would indicate a cervical radiculopathy.47
Dr. Newell testified that he reviewed a previous electromyography (“EMG”)
that was negative for signs of a pinched nerve in Lewis’s arm or neck.48 According
to Dr. Newell, this was “fairly common” and often consistent with neck issues.49 He
testified that the negative findings were not inconsistent with a cervical
radiculopathy because positive findings appear only in the most severe cases.50
43 Id. 44 Id. at A33. 45 Id. at A33–34. 46 Id. 47 Id. at A35–36. 48 Id. at A32–33. 49 Id. 50 Id. at A39–40. 7 Dr. Newell also acknowledged that the results of the February 12, 2019 MRI
did not clearly show nerve compression or pinching.51 But he stated that the MRI
results showed a mild narrowing or “mechanical radiculopathy.”52 He testified that
a mechanical radiculopathy is an injury, or aggravation of an injury, to a disc that
causes inflammation, which can “biochemically” irritate a nearby nerve.53
Dr. Newell made several concessions on cross-examination.54 Importantly for
this appeal, Dr. Newell agreed that he did not have any “medical records” or
“documents” to support his contention that the surgery caused a cervical
radiculopathy.55 He reiterated, however, that his assessment was based in part on
the circumstances surrounding Lewis’s complaints about her neck.56
Dr. Rushton disagreed that Lewis’s neck injury was work-related and opined
that her 2016 injury was an isolated right-shoulder injury for which surgery produced
an excellent clinical outcome.57 Dr. Rushton’s opinion was largely based on the lack
of objective evidence linking a cervical spine injury to the surgery or to repetitive
work-related movement.58 Specifically, Dr. Rushton stated that there is no support
51 Id. at A36–38. 52 Id. 53 Id. 54 See id. at A52–74. 55 Id. at A72–74. 56 Id. at A73 (“So it seems to me [the shoulder surgery is] the big dramatic event that took place around the time that her symptoms began.”). 57 Id. at A100–01. 58 Id. at A96–103. 8 for a cervical radiculopathy diagnosis from an objective standpoint based on his
evaluation of Lewis, the MRI and EMG reports, and her clinical complaints.59
According to Dr. Rushton, the MRI report showing a disc osteophyte complex with
mild to moderate central and foraminal narrowing was “relatively” normal.60 Dr.
Rushton also expressed a belief that the relief Lewis felt after the injections was due
to a placebo effect.61
On cross-examination, Dr. Rushton acknowledged that he did not ask Lewis
about any repetitive activities at work that might have caused her pain.62 He
conceded that he examined Lewis on only one occasion, more than two years before
his deposition,63 and he had not reviewed any updated treatment records other than
Dr. Newell’s deposition transcript.64
The IAB concluded that medical treatment to Lewis’s neck was reasonable,
necessary, and causally related to her 2016 injury.65 The IAB found Dr. Newell’s
causation opinion to be more convincing than Dr. Rushton’s opinion, based largely
on the timing of Lewis’s neck problems.66 The IAB’s written decision also
addressed the reasoning underlying the Board’s denial of Elzufon’s motion to
59 Id. 60 Id. at A97. 61 Id. at A97–99. 62 Id. at A105–06. 63 Id. at A106. 64 Id. 65 Id. at A17. 66 Id. at A18. 9 dismiss. The written decision explained that the Petition was timely because Lewis
filed it within five years of the 2016 injury, as required by 19 Del. C. § 2361(b).67
In the alternative, the IAB explained, the Petition was timely under
19 Del. C. § 2361(a) because Lewis filed it within two years of the date on which
the injury’s “detrimental effect” manifested and Lewis, as a reasonable person, knew
or should have known it was related to her employment.68 That date, the IAB
explained, was either January 8, 2020, when Dr. Johnson assessed Lewis for a
cervical radiculopathy or on either of the dates of the two epidural injections—
April 8, 2019 and April 22, 2019.69
C. Elzufon Appeals to the Superior Court
Elzufon appealed the IAB’s decision to the Superior Court, asserting two
grounds for reversal. First, Elzufon argued that the IAB abused its discretion by
accepting Dr. Newell’s cervical radiculopathy diagnosis because it was not
supported by documentary or objective medical evidence and therefore was not
based on substantial evidence.70 Second, Elzufon asserted that the IAB erred by
denying the motion to dismiss because, according to Elzufon, the Petition was
related to a new body part and therefore subject to Section 2361(a)’s two-year
67 Id. at A21. 68 Id. at A21–22. 69 Id. 70 Opening Br. Ex. A (“Superior Court Opinion”) at 12. 10 limitations period.71 Elzufon argued that the limitations period began on
March 19, 2019, when Dr. Newell diagnosed Lewis with a cervical radiculopathy.72
The Superior Court affirmed the IAB. First, the court held that the IAB’s
decision was based on substantial evidence.73 In the court’s view, adopting
Elzufon’s position would require the court “to step outside of its proper role and re-
weigh the evidence, and make its own credibility and factual findings.”74 Second,
the court held that the IAB’s alternative rulings on Elzufon’s motion to dismiss were
legally correct.75 The court explained that, “[g]iven the [IAB’s] finding that the
cervical spine injury was causally related to the compensable injury,” the IAB’s
holding that the Petition was timely under Section 2361(b)’s five-year limitations
period was “manifestly correct.”76 The court also held that the IAB’s alternative
holding was legally correct because Lewis filed her Petition within two years of
when Dr. Johnson assessed a cervical radiculopathy and administered the two
epidural injections.77
This appeal followed.
71 Id. at 11–12. 72 Id. 73 Id. at 15–16. 74 Id. at 16. 75 Id. at 16–18. 76 Id. at 16–17. 77 Id. at 17–18. 11 II. STANDARD OF REVIEW
This Court’s review of a Board decision is generally limited to determining
“whether there is substantial evidence to support the Board’s findings.”78
“Substantial evidence means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”79 “Weighing the evidence, determining
the credibility of witnesses, and resolving any conflicts in the testimony are
functions reserved exclusively to the Board.”80 On appeal, we review alleged errors
of law de novo.81
III. ANALYSIS
Elzufon raises two issues in this appeal. First, Elzufon argues that the IAB’s
conclusion that Lewis’s spinal injury was causally related to the 2016 injury was not
based on substantial evidence.82 According to Elzufon, Dr. Newell’s opinion—
which was the only causation evidence supporting Lewis’s position—was “purely
speculative in nature” and therefore did not constitute substantial evidence.83
Second, Elzufon argues that the IAB should have dismissed the Petition as time-
barred.84 According to Elzufon, the Board should not have applied
78 Betts v. Townsends, Inc., 765 A.2d 531, 533 (Del. 2000). 79 Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994) (internal quotation marks omitted). 80 Noel-Liszkiewicz v. La-Z-Boy, 68 A.3d 188, 191 (Del. 2013). 81 Arrants v. Home Depot, 65 A.3d 601, 605 (Del. 2013). 82 Opening Br. at 10–15. 83 Id. at 12–13. 84 Id. at 16–18. 12 Section 2361(b)’s five-year limitations period because that provision applies only
when payments have been made in connection with an accepted injury.85 Because
Lewis’s neck injury was not related to the 2016 injury, Elzufon argues,
Section 2361(a)’s two-year limitations period governs the Petition’s timeliness.86
According to Elzufon, Lewis filed the Petition outside that two-year window because
she had “actual notice” of a cervical radiculopathy diagnosis on March 20, 2019,
when she first visited Dr. Newell, but waited until April 1, 2021 to file the Petition.87
A. Dr. Newell’s expert opinion testimony constituted substantial evidence.
“[T]he IAB may adopt the opinion testimony of one expert over another; and
that opinion, if adopted, will constitute substantial evidence for purposes of appellate
review.”88 Elzufon stipulated to Dr. Newell’s qualifications as a medical expert,89
Dr. Newell testified in that capacity, and the IAB adopted Dr. Newell’s opinion
testimony.90 Elzufon nevertheless contends that Dr. Newell’s testimony does not
constitute substantial evidence because his opinion was “purely speculative,” citing
Dr. Newell’s admission that his opinion was not based on objective medical
evidence or records.91 Relying on the Superior Court’s decision in Hinckle v. Shorts
85 See Reply Br. at 7. 86 Id. 87 Opening Br. at 17–18. 88 Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009). 89 Am. App. to Opening Br. at A30. 90 See id. at A18–19, A30. 91 Opening Br. at 12–13. 13 Enterprises, Inc.,92 Elzufon maintains that, given the speculative nature of Dr.
Newell’s opinion, the opinion “cannot ‘constitute substantial evidence for purposes
of appellate review.’”93
Dr. Newell’s testimony does not resemble the testimony in Hinckle. The
claimant in Hinckle sustained a compensable shoulder injury requiring surgery,
which his employer agreed to compensate.94 After his surgery, the claimant again
began experiencing shoulder pain, which necessitated a second shoulder surgery.95
After the second surgery, the claimant petitioned the IAB to determine additional
compensation due, and the IAB denied the petition, finding that the second surgery
was not related to the original work accident.96 That finding was primarily based on
the testimony of an orthopedic surgeon who examined the claimant.97 Among other
things, the surgeon “theorized that another accident could have caused” the
claimant’s second injury, but the surgeon “conceded that no evidence exist[ed] of
such an accident.”98 On appeal, the Superior Court concluded that the surgeon’s
92 2004 WL 1731142 (Del. Super. July 28, 2004). 93 Opening Br. at 14 (quoting Hinckle v. Shorts Enters., Inc., 2004 WL 1731142, at *3 (Del. Super. July 28, 2004)). 94 Hinckle, 2004 WL 1731142, at *1. 95 Id. 96 Id. at *2. 97 Id. 98 Id. at *3. 14 hypothesis could not constitute substantial evidence because it amounted to
speculation.99
Unlike the opinion in Hinckle, Dr. Newell’s opinion was not based on
hypothetical facts that lacked evidentiary support. Although Dr. Newell admitted
that his opinion was not based on “objective” medical records,100 that testimony does
not make his opinion fatally speculative. Dr. Newell was Lewis’s treating physician,
and based on the timing of Lewis’s neck problems, and Dr. Newell’s familiarity with
the complications that patients who undergo shoulder surgery confront, he deduced
that the neck problems may have stemmed from the surgery. Based on that
deduction, Dr. Newell administered injections, the results of which showed, in Dr.
Newell’s view, that Lewis experienced a cervical radiculopathy. Elzufon points to
several inartful soundbites elicited at the end of Dr. Newell’s deposition,101 but a fair
reading of his testimony shows that his opinion was not based on speculation. The
Board’s decision therefore was supported by substantial evidence.102
B. The IAB did not erroneously conclude that the Petition was timely.
The IAB denied Elzufon’s motion to dismiss, holding that the Petition was
not time barred under two alternative provisions of 19 Del. C. § 2361. The primary
99 Id. 100 Opening Br. at 12–13. 101 See id. at 7; Am. App. to Opening Br. at A72–74. 102 See Person-Gaines, 981 A.2d at 1161; Simmons v. Del. State Hosp., 660 A.2d 384, 388 (Del. 1995) (“It is entirely proper and appropriate for the Board to accept the medical testimony of one expert witness over that of another.”). 15 basis for the IAB’s ruling was that Lewis filed the Petition within the five-year
limitations period set forth in Section 2361(b).103 In the alternative, the IAB
concluded that Lewis filed the Petition within the two-year limitations period set
forth in Section 2361(a) because the limitations period was tolled.104 The Superior
Court agreed with both rulings.105 Whether a statute of limitations bars a workers’
compensation benefits claim “is a mixed question of law and fact that requires the
Court to determine: (1) whether the IAB applied the correct legal standard and if so,
(2) whether the factual findings of the IAB were supported by substantial
evidence.”106
We conclude that the IAB correctly applied Section 2361(b) and therefore do
not address its conclusions as to Section 2361(a). The five-year limitations period
in Section 2361(b) applies in cases where “payments of compensation have been
made . . . under an agreement approved by the Board or by an award of the Board.”107
Section 2361(b) provides:
Where payments of compensation have been made in any case under an agreement approved by the Board or by an award of the Board, no statute of limitation shall take effect until the expiration of 5 years from
103 See Am. App. to Opening Br. at A21. 104 See id. at A21–22. 105 Superior Court Opinion at 16–17. 106 Pinnacle Foods v. Chandler, 27 A.3d 552, 2011 WL 3586491, at *3 (Del. Aug. 16, 2011) (TABLE) (quoting Smolka v. DaimlerChrysler Corp., 2004 WL 3958064, at *2 (Del. Super. July 13, 2004)). 107 19 Del. C. § 2361(b). 16 the time of the making of the last payment for which a proper receipt has been filed with the Department [of Labor].108
Elzufon contends that the five-year limitations period does not apply because
there is not substantial evidence that the 2016 injury caused Lewis’s neck injury at
issue in the Petition.109 In other words, Elzufon argues that Section 2361(b) applies
only if Lewis’s spinal injury relates to her earlier shoulder injury. And because those
injuries are not related, Elzufon argues, the IAB should not have applied
Section 2361(b)’s five-year limitations period. Elzufon does not otherwise
challenge the IAB’s ruling under Section 2361(b).
We already have concluded that the IAB’s causation determination was based
on substantial evidence. Accordingly, the IAB correctly applied Section 2361(b).
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the Superior Court’s January 10, 2023
Memorandum Opinion and Order.
108 Id. 109 Reply Br. at 7. 17