IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ELZUFON, AUSTIN, TARLOV & ) MONDELL, P.A., ) ) Employer Below-Appellant, ) C.A. No. N22A-03-006 FWW ) v. ) ) DELISA LEWIS, ) ) Claimant Below-Appellee. )
Submitted: November 7, 2022 Decided: January 10, 2023
MEMORANDUM OPINION
On Appeal from the Industrial Accident Board:
AFFIRMED.
Walter J. O’Brien, Esquire, WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP, 2 Penn’s Way, Suite 300, New Castle, Delaware 19720; Attorney for Appellant Elzufon, Austin, Tarlov & Mondell, P.A.
Tabatha L. Castro, Esquire, THE CASTRO FIRM, INC. 200 Continental Dr., Suite 401, Newark, Delaware 19713; Attorney for Appellee Delisa Lewis.
WHARTON, J. I. INTRODUCTION
Elzufon, Austin, Tarlov, & Mondell, P.A. (“Elzufon”) filed a Notice of
Appeal on March 18, 2022 seeking a review of the February 17, 2022 decision by
the Industrial Accident Board (“Board”). Elzufon contends that the Board erred
when it granted Appellee Delisa Lewis’ (“Lewis”) Petition for Additional
Compensation Due, concluding that conservative treatment to her cervical spine was
causally related to her 2016 compensable work accident.
In considering this appeal, the Court must determine whether the Board’s
decision is supported by substantial evidence and is free from legal error.
Specifically, the Court must determine whether the Board erred as a matter of law
when it denied Elzufon’s Motion to Dismiss based on the two-year statute of
limitations under 19 Del. C. § 2361(a) and whether the Board abused its discretion
in determining the factual causation of the cervical medical treatment in dispute.
Upon consideration of the pleadings before the Court and the record below, the Court
finds that the Board’s determination was supported by substantial evidence in the
form of the opinion of Dr. Michael Newell that Lewis’ cervical radiculopathy was
causally related to her earlier compensable work injury. Further, the Board did not
err as a matter of law when it denied Elzufon’s Motion to Dismiss. Accordingly, the
Board’s decision is AFFIRMED.
2 II. FACTUAL AND PROCEDURAL CONTEXT
In its decision, the Board set out the procedural posture of the case as well as
a detailed summary of the evidence presented at the hearing before the Board on
January 31, 2022.1 Since neither party takes exception to the Nature and Stage of
the Proceedings or the Summary of the Evidence set out in the Board’s decision, the
Court accepts them.2 On August 29, Lewis sustained a compensable injury to her
upper right extremity while working for Elzufon.3 She had surgery on her right
shoulder in June 2018.4 The parties reached an agreement as to compensation at the
rate of $688.46 per week and additional disfigurement benefits for seven weeks.5
Lewis filed a Petition to Determine Additional Compensation Due on April 1, 2021
seeking further medical treatment for a cervical spine injury which she claimed was
causally related to her 2016 work injury.6 Elzufon disputed that any injury to the
cervical spine was related to Lewis’ prior injury.7 It further argues that Lewis was
alleging an injury to a “new body part” and, since more than two years had passed
1 Delisa Lewis v. Elzufon, Austin, Tarlov & Mondell, P.A., No. 1489024, at 2-12, (I.A.B. Feb. 17, 2022), D.I. 6 (Tab 7). 2 Id. 3 Id., at 2. 4 Id. 5 Id. 6 Id. The Board incorrectly stated at page 2 that the petition was filed on June 20, 2019. The correct date is April 1, 2021. See Record, at Tab 1. The incorrect date played no part in the Board’s decision and appears to be the only time the date was cited incorrectly in the Board’s decision. 7 Id. 3 since the 2016 work injury, the petition should be dismissed pursuant to 19 Del. C.
§ 2361(a).8
At the hearing before the Board, Elzufon presented a Motion to Dismiss, based
on its contention that Lewis’ cervical spine complaints related to a new body part
unrelated to her shoulder injury, and thus, her petition was untimely as outside the
two-year statute of limitations of 19 Del. C. § 2361(a).9 After deliberating, the Board
denied the motion prior to taking testimony.10 At the hearing, Lewis presented the
deposition testimony of William M. Newell, M.D., a physical medicine,
rehabilitation, and interventional spine specialist, and testified herself.11 It was Dr.
Newell’s opinion that Lewis’ cervical spine problems were causally related to her
2016 compensable work injury to her right upper extremity.12 He diagnosed her with
cervical radiculopathy for which the contested treatment was reasonable, necessary
and causally related to Lewis’ prior work injury.
Dr. Newell testified that Lewis was referred to him by Dr. Eric Johnson for
residual symptoms following surgery.13 She complained of neck pain radiating
down into the right shoulder and arm with numbness, tingling, and paresthesia down
8 Id., at 2-3. 9 Id., at 2. 10 Id., at n. 1. 11 Id., at 2, 6. 12 Id., at 2. 13 Id., at 3. 4 to the right arm.14 A previous electromyography (“EMG”) was negative for signs of
a pinched nerve in her arm or neck,15 which was “fairly common” and often
consistent with neck issues according to Dr. Newell.16
When Dr. Newell performed a physical examination on her, Lewis
demonstrated an abnormal reflex bilaterally, which can be normal.17 She also had a
positive Spurling’s maneuver, which is typical of an injured or entrapped nerve of
the neck.18 Dr. Newell diagnosed a cervical radiculopathy affecting the right C6
nerve root between the fifth and sixth bones of the neck.19 He recommended epidural
steroid injections to settle down the nerve and improve her symptoms.20
Dr. Newell testified that an MRI from February 12, 2019 showed a disc
osteophyte complex.21 He agreed that it did not show clear nerve compression, or
pinching, but the MRI did show a mild narrowing or “mechanical radiculopathy.”22
According to Dr. Newell, a “mechanical radiculopathy” is an injury or aggravation
of an injury to a disc that causes inflammation, which can “biomechanically” irritate
14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 Id. 20 Id. 21 Id., at 4. 22 Id. 5 a nearby nerve.23 Dr. Newell also did not conclude that Lewis’ normal findings on
an EMG to her upper extremities On April 30, 2020 was inconsistent with his
diagnosis of cervical radiculopathy, since, in his view, positive findings only appear
in the most severe cases, not mild or moderate ones.24
Dr. Newell disagreed with Dr. Scott Rushton, Elzufon’s medical expert, that
Lewis’ neck problems were unrelated to her repetitive use work injury and prior
shoulder surgery.25 In Dr. Newell’s view, Lewis’ neck problems, like many patients
who have shoulder surgery, were an “indirect unfortunate consequence of being
treated surgically.”26 In Lewis’ case, she suffered no isolated injury to the cervical
spine, and but for her shoulder injury requiring surgery, she would not have
developed neck issues.27
Dr. Newell made a number of concessions on cross examination. He agreed
that: cervical radiculopathy is often associated with degenerative disease and Lewis
is in her mid-fifties; physical therapy records from 2019 show Lewis referred to
intermittent back pain since 1986; and prior x-rays were positive for scoliosis, which
over time can result in a pinching of a spinal nerve.28 He pointed out, however, that
23 Id. 24 Id. 25 Id., at 5. 26 Id. 27 Id. 28 Id. 6 it would be unusual for scoliosis to affect the cervical area or it would be only a
“incidental finding.”29 Dr. Newell also agreed with Dr. Rushton that Lewis’
complaint of pain in her fourth and fifth fingers as well as elbow pain is inconsistent
with the C6 nerve root and with her cervical radiculopathy originating at C5-6.30
Finally, Dr. Newell conceded that there were no medical records supporting a view
that Lewis’ altered body mechanics post-surgery caused a cervical radiculopathy.31
Lewis testified that Dr. Eric Johnson performed shoulder surgery on her on
June 15, 2018, which was followed by a course of physical therapy. 32 When she
returned to work, she continued to experience right hand numbness, tingling, and
tightness.33 She followed up with Dr. Johnson who determined her right shoulder
problems were resolved by the surgery, but referred her to Dr. Newell for possible
neck issues.34 After receiving her first injection from Dr. Newell, her pain was
relieved for about five or six weeks, but then her neck symptoms slowly began to
return..35
29 Id. 30 Id., at 6. 31 Id. 32 Id. 33 Id. 34 Id. 35 Id., at 7. 7 Dr. Scott Rushton, an orthopedic spine surgeon, testified by deposition on
behalf of Elzufon.36 His conclusion was that Lewis sustained a right shoulder injury
resulting from repetitive use which was appropriately treated by surgery that
appeared to result in a good subjective outcome.37 He said that there is no objective
evidence to support a repetitive motion injury to Lewis’ cervical spine as a result of
work related injuries.38
Dr. Rushton testified that Lewis reported at the defense medical examination
that surgery provided her with subjective improvement, but she later developed
complaints of pins and needles in her right elbow radiating to her fourth and fifth
digits as well as an aching discomfort in her right shoulder.39 She denied what Dr.
Rushton described as typical cervical spine symptomology – neck pain, mechanical
pain along the scapular or shoulder blade area or any dermatomal or radicular type
pain in a nerve distribution.40
Two EMGs that Dr. Rushton reviewed were normal with no evidence of
cervical radiculopathy – one done on October 10, 2016 and the other done on March
11, 2019.41 An MRI report of the cervical spine showing a disc osteophyte complex
36 Id., at 8. 37 Id., at 11. 38 Id. 39 Id., at 8. 40 Id. 41 Id. 8 at C3-4 with mild to moderate central and foraminal narrowing was “relatively”
normal in Dr. Rushton’s opinion.42 Dr. Rushton acknowledged that Lewis showed
improvement after receiving injections, but did not feel she was a candidate for any
invasive treatment because he saw no structural problem amenable to an injection.43
Dr. Rushton also found no objective evidence to support Dr. Newell’s theory
that Lewis developed cervical radiculopathy post-surgery.44 None of the treatment
records supported it, nor did the EMG and MRI reports, the physical examination,
or Lewis’ clinical complaints.45 In Dr. Rushton’s opinion, there is no objective
evidence to support any diagnosis of cervical radiculopathy, much less one related
to Lewis’ previous right shoulder injury.46 According to Dr. Rushton, there was no
evidence to support a cervical spine work-related repetitive movement injury, the
mechanics of the injury did not fit the diagnosis, and Lewis’ physical examination
completely lacked any evidence of radiculopathy.47 He ascribed Lewis’
improvement after injections to a possible “placebo effect.”48
Dr. Rushton acknowledged on cross-examination that he did not ask Lewis
when he saw her about any repetitive activities at work that might have caused her
42 Id., at 9. 43 Id. 44 Id. 45 Id. 46 Id. 47 Id. 48 Id., at 10. 9 pain.49 He also testified that he saw Lewis for the first and only time two years and
four months ago and had not reviewed any updated treatment records other than Dr.
Newell’s deposition testimony.50
The Board concluded that Lewis’ contested medical treatment to her neck was
reasonable, necessary, and causally related to the previous compensable 2016
injury.51 In doing so, the Board found the opinion of Dr. Newell on the issue of
causation of Lewis’ cervical spine pain more convincing than that of Dr. Rushton.52
It based that finding on the timing of Lewis’ symptoms since she never had any
history of neck problems until after her right shoulder surgery.53 The Board found
Dr. Rushton’s belief that Lewis’ condition improve after receiving injection was due
to a “placebo effect” unsubstantiated.54
The Board also explained its denial of Elzufon’s Motion to Dismiss.55 The
Board explained that pursuant to 19 Del. C. § 2361(b), Lewis’ present petition
adding what Elzufon describes as a new body part was filed well within five years
of the compensable injury.56 Specifically, more than five years had not passed since
49 Id. 50 Id. 51 Id., at 12. 52 Id., at 13. 53 Id., at 14. 54 Id., at 15. 55 Id., at 16-17. 56 Id., at 16. 10 Lewis had received compensation for disfigurement benefits related to the 2016
injury.57 Alternatively, the Board observed that under § 2361(a), in a cumulative
detrimental effect case such as Lewis’, the two-year statute of limitations starts to
run from the date the “detrimental effect” is manifested, and the claimant, as a
reasonable person, knows or should know it is related to employment.58 Here, the
Board found that date was either January 8, 2020 when Dr. Eric Johnson assessed
Lewis for a cervical radiculopathy or April 8 and 22, 2019 when Dr. Newell
administered her injections.59 Lewis filed her petition on April 1, 2021, making all
of those dates within the two-year period.60
Elzufon appeals the Board’s decision.
III. THE PARTIES’ CONTENTIONS
Elzufon contends that the Board’s decision should be reversed on two
grounds. First, it contends that the Board erred as a matter of law when it denied
Elzufon’s Motion to Dismiss on statute of limitations grounds. 61 Specifically, it
contends that as a new injury to a different body part than the compensable injury,
Lewis’ petition for additional compensation for her neck pain is subject to the two-
57 Id. 58 Id. 59 Id., at 17. 60 Id. 61 Elzufon’s Op. Br., at 11-13, D.I. 13. 11 year statute of limitations of 19 Del. C. § 2163(a).62 Lewis was diagnosed with
cervical radiculopathy when she visited Dr. Newell on March 19, 2019. Thus, her
petition filed on April 1, 2021 was time-barred.63
The second ground for reversal Elzufon argues is that the Board abused its
discretion when it failed to rely on substantial evidence in making its factual
causation determination of Lewis’ cervical medical treatment.64 It its view, the
Board should not have credited Dr. Newell’s diagnosis of cervical radiculopathy
because it is unsupported by any documentary or objective medical evidence.65
In response, Lewis argues that the Board was correct in relying on the five-
year statute of limitations of 19 Del. C. §2361(b).66 Further, even if the two-year
limitations period applied, the starting date when that period began to run was
January 8, 2020 when Lewis sought treatment from her surgeon, Dr. Johnson.67
Lewis’ also disputes Elzufon’s contention that the Board abused its discretion when
it credited Dr. Newell’s diagnosis and causation opinion and rejected Dr.
Rushton’s.68
IV. STANDARD OF REVIEW
62 Id., at 11. 63 Id., at 12-13. 64 Id. at 13-16. 65 Id., at 14-15. 66 Lewis’ Ans. Br., at 9-11, D.I. 14. 67 Id. 68 Id., at 11-15. 12 The Board’s decision must be affirmed so long as it is supported by substantial
evidence and is free from legal error.69 Substantial evidence is that which a
reasonable mind might accept as adequate to support a conclusion.70 While a
preponderance of evidence is not necessary, substantial evidence means “more than
a mere scintilla.”71 Questions of law are reviewed de novo,72 but because the Court
does not weigh evidence, determine questions of credibility, or make its own factual
findings,73 it must uphold the decision of the Board unless the Court finds that the
Board’s decision “exceeds the bounds of reason given the circumstances.”74
V. DISCUSSION
It appears to the Court that the Board’s denial of Elzufon’s Motion to Dismiss
on statute of limitations grounds necessarily implicates its decision on causation.
For that reason, the Court first considers whether there was substantial evidence to
support the Board’s factual causation determination, and then considers its decision
on the Motion to Dismiss.
69 Conagra/Pilgrim’s Pride, Inc. v. Green, 2008 WL 2429113, at *2 (Del. June 17, 2008). 70 Kelley v. Perdue Farms, 123 A.3d 150, 153 (Del. Super. 2015) (citing Person- Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009)). 71 Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988). 72 Kelley, 123 A.3d at 152–53 (citing Vincent v. E. Shore Markets, 970 A.2d 160, 163 (Del. 2009)). 73 Bullock v. K-Mart Corp., 1995 WL 339025, at *2 (Del. Super. May 5, 1995) (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66–67 (Del. 1965)). 74 Bromwell v. Chrysler LLC, 2010 WL 4513086, at *3 (Del. Super. Oct. 28, 2010) (quoting Bolden v. Kraft Foods, 2005 WL 3526324, at *3 (Del. Dec. 21, 2005)). 13 A. There Was Substantial Evidence to Support the Board’s Factual Causation Determination.
The Court’s role on appeal is not to re-weigh the evidence and decide whether
the Board reached the correct decision. Instead, it is to decide whether there was
substantial evidence to support the Board’s decision and whether that decision was
free from legal error. After listening to the evidence, the Board found that Lewis
had met her burden of demonstrating by a preponderance of the evidence that
medical treatment for her cervical spine is reasonable, necessary, and causally
related to the underlying 2016 compensable work injury.75 In reaching that
determination, the Board found that Dr. Newell’s diagnosis of a cervical
radiculopathy which was causally related to Lewis’ compensable injury more
credible than Dr. Rushton’s opinion that Lewis did not have cervical radiculopathy
at all.76
The Board explained the basis of that determination in its Decision. It found
that Lewis’ 2018 surgery for her compensable injury caused “sequelae” for the
development of her cervical spine symptoms.77 In other words, the Board found that
her cervical spine symptoms were a consequence of her surgery. Dr. Newell began
treating Lewis nine months after her surgery, and when he examined her in March
75 Delisa Lewis v. Elzufon, Austin, Tarlov & Mondell, P.A., at 11. 76 Id., at 13. 77 Id. 14 2019, he found symptoms of an irritated or entrapped nerve of the neck at C5-6.78
In April 2019, he performed epidural steroid injections to the neck to settle down the
nerve and which successfully provided symptomatic relief.79 The Board found Dr.
Newell’s causation opinion persuasive based on the timing of Lewis’ symptoms
since she never had any prior medical history of neck problems until after her
shoulder surgery.80 As Dr. Newell explained, many patients who have had shoulder
surgery develop cervical spine issues.81 Here, Lewis’ neck issues were aggravated
by her rehabilitation efforts, in Dr. Newell’s view.82
Dr. Newell’s ultimate causation opinion, expressed to a reasonable degree of
medical probability, as supported by Lewis’ testimony, was substantial evidence of
causation such that a reasonable mind might accept it as adequate to support the
Board’s conclusion. The fact that Dr. Rushton had a different opinion does not alter
that conclusion. The Board carefully evaluated the opinion testimony of both
doctors and concluded that Dr. Newell’s opinion made more sense in light of Lewis’
medical treatment history and his far more extensive actual treatment experience
with Lewis as her treatment provider. Thus, the Court concludes that the Board’s
decision was supported by substantial evidence. To find otherwise, as Elzufon asks,
78 Id. 79 Id. 80 Id., at 14. 81 Id. 82 Id. 15 would require the Court to step outside of its proper role and re-weigh the evidence,
and make its own credibility determinations and factual findings.
B. The Statute of Limitations Did Not Bar Lewis’ Petition.
The Board based its denial of Elzufon’s Motion to Dismiss on its reading of
19 Del. C. § 2361(b) which provides for a five-year statute of limitations in certain
situations.83 That section reads:
(b) 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 the time of the making of the last payment for which a proper receipt has been filed with the Department.84
The Board held that the present petition, filed on April 1, 2021, was filed within five
years of the date of injury of August 29, 2016.85 Specifically, less than five years had
elapsed since Lewis received her last disfigurement compensation payment related to
that compensable accident under their agreement filed on July 29, 2019.86 Given the
Board’s finding that the cervical spine injury was causally related to the compensable
injury, as affirmed here, that holding is manifestly correct.
Alternatively, the Board held that this case is a “cumulative detrimental effect
case” (based on the prior agreement of the parties) and that the initial two-year statute
83 Id., at 16. 84 19 Del. C. § 2361(b). 85 Delisa Lewis v. Elzufon, Austin, Tarlov, & Mondell, P.A., at 16. 86 Id. 16 of limitations under 19 Del. C. § 2361(a) began to run from the date the “detrimental
effect” manifested itself and Lewis, as a reasonable person, knew, or should have
known it was related to employment.87 Here, the Board determined that Lewis’
present petition for additional cervical spine treatment was within two years of when
she last saw her treating surgeon, Dr. Johnson, on January 8, 2020 and he assessed
her with a cervical radiculopathy.88 Furthermore, the present petition was filed within
two years of when she received her diagnostic/therapeutic injections from Dr. Newell
on April 8 and April 22, 2019.89 It appears inferentially that the Board found that the
results of Lewis’ visit with Dr. Newell in March 2019 were insufficient to put her on
notice that her cervical spine pain was related to her employment. That conclusion
is reasonable in light of the fact that the purpose of the injections in April 2019 was
at least partially diagnostic. Again, given that the Board’s found causal connection
between the compensable injury and the manifestation of the further detrimental
effect related to Lewis’ cervical spine injury, Elzufon’s Motion to Dismiss was
properly denied on this alternative basis as well.
VI. CONCLUSION
For the foregoing reasons, the Board’s decision was supported by substantial
evidence and was free from legal error. There was substantial evidence to support
87 Id. 88 Id., at 16-17. 89 Id., at 17. 17 the Board’s determination that Lewis’ cervical spine injury was causally related to
her compensable shoulder injury. Further the Board’s holding that the petition was
not barred by the statute of limitations was free from legal error. Therefore, the
IT IS SO ORDERED.
/s/ Ferris W. Wharton Ferris W. Wharton, J.