IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
BRIAN SCOTT JOHNSON, : Claimant Below-Appellant, : C. A. No. S23A-08-001 CAK v. : CANALFRONT BUILDERS, LLC, : Employer Below-Appellee. :
Submitted: February 7, 2024 Decided: February 29, 2024
On Appeal from Industrial Accident Board
AFFIRMED
MEMORANDUM OPINION AND ORDER
Walt F. Schmittinger, Esquire, Schmittinger and Rodriguez, P.A., 414 South State Street, Dover, DE 19903, Attorney for Claimant/Appellant.
Andrew J. Carmine, Esquire, Elzufon Austin & Mondell, 300 Delaware Avenue, Suite 1700, Wilmington, DE 19801, Attorney for Employer/Appellee.
KARSNITZ, R.J. PROCEDURAL BACKGROUND
On December 5, 2022, Brian Scott Johnson (“Claimant”) filed a Petition to
Determine Additional Compensation Due (the “Petition”), seeking (1) a
compensability determination and payment for total knee replacement surgeries to
both Claimant's left and right knees and (2) total disability benefits in connection with
the same.1
The Petition was heard before the Industrial Accident Board (the “Board”) on
July 20, 2023. The Board issued a decision on July 28, 2023 awarding the Claimant
the following benefits:
1. Outstanding medical expenses for the left and right total knee
replacement surgeries;
2. Total disability benefits, at the rate of $713.65, from October 12,
2022 until July 27, 2023;
3. Ongoing partial disability benefits, at the rate of $306.97,
effective July 28, 2023;
4. Reimbursement for the medical expert witness fees of Dr. Jose
Pando and Dr. Michael Silverman; and,
5. Attorneys’ fees and costs in the amount of $13,012.70.2
1 Stipulation of Facts (July 20, 2023). 2 Brian Scott Johnson v. Canalfront Builders, LLC, IAB No. 1476304, at 29 (7/28/2023).
2 Claimant filed a timely partial appeal, limited to the issue of Claimant's
entitlement to ongoing total disability benefits instead of ongoing partial disability
benefits.
Claimant filed his Opening Brief on October 18, 2023. Employer filed its
Answering Brief on November 8, 2023. Claimant filed his Reply Brief on December
1, 2023. I held oral argument on February 7,2024. This is my decision.
FACTS
Claimant has suffered from and treated for rheumatoid arthritis for at least
twenty years. During those years, he experienced pain in many joints, including his
shoulders, ankles, feet, and knees. Flare-ups of his rheumatoid arthritis would differ
in severity, but would give him difficulty performing tasks at work and at home. To
treat pain in his joints, as well as swelling and stiffness, Claimant was placed on
biological medications. Despite these symptoms, Claimant was fully functional and
performed medium to heavy duty construction work during those years.
Claimant suffered a compensable work accident on July 26, 2018, while
working for Canalfront Builders, LLC ("Employer"). While walking down a
construction driveway, he fell backwards, hyperextending and tearing the meniscus
in his left knee.
Following his work accident, Claimant experienced extreme pain and
3 swelling in his left knee, making it difficult for him to walk or even stand, let alone
work. Claimant underwent an aspiration of and injection to the left knee on August
7, 2018. Unfortunately, this procedure resulted in Claimant developing a dangerous
staph infection, which required him to undergo several surgeries on the left knee and
to discontinue the biological rheumatoid arthritis medication and begin intravenous
and oral antibiotics.
Claimant underwent bilateral total knee replacement surgeries; the right knee
in October 2022 and the left knee in January 2023. Following these surgeries,
Claimant experienced an improvement in his condition, with much better mobility
and much better function. In January, 2023, Claimant's rheumatologist, Dr. Pando,
determined that Claimant's symptoms were under control, and he did not require the
resumption of the biological medications.
THE BOARD HEARING
Dr. Pando, who testified for Claimant, had opined as early as June, 2022 that
the Claimant was unable to work. Dr. Pando last evaluated Claimant two weeks after
the January 2023 left total knee replacement surgery. He also testified that the
bilateral knee replacement was causally related to the original work injury.
Dr. Silverman, who also testified for Claimant, opined that returning to work
as a practical matter was not really an option. Dr. Silverman did not examine the
Claimant after the January 2023 total knee replacement surgery. He also testified
4 that the bilateral knee replacement was causally related to the original work injury.
Dr. Schwartz, who testified for Employer, evaluated Claimant in January
2019, October 2019, and March 2023 (after the bilateral knee replacement).
Although he supported the testimony about the causal connection between the
original work injury and the bilateral knee replacement, he testified that there was
no medical indication for total disability and, at the very minimum, sedentary work
would be appropriate.
At the July 20, 2023 Board hearing, Claimant confirmed that he drove to the
hearing in Dover, Delaware from his home in Harbeson, Delaware, for about one
hour. He confirmed that he can shop and put gas in his truck. Claimant advised that
he had not returned to work since the work accident and had not looked for or applied
for any work. When asked if he wanted to return to work, Claimant advised that
he was prevented from returning to work by social security disability benefits, as
those benefits would cease if he returned to work.
Employer accepted the compensability of the left knee surgery prior to the
Board hearing. After the hearing, the Board accepted the medical expert testimony
of Dr. Pando and Dr. Silverman regarding the causal relationship of the right total
knee replacement surgery to the July 26, 2018 work accident. However, the Board
accepted the medical expert testimony of Dr. Schwartz that Claimant was doing quite
well after the bilateral knee replacement and that there was no medical indication for
5 total disability. Rather, Claimant could work full-time in a sedentary duty capacity.
The Board cited Claimant's testimony that he had much better function since
the surgeries. It noted that Claimant was able to drive himself to the hearing, sit
through the hearing, and he did not use an assistive device to walk.
Having found that Claimant could return to work with physical restrictions,
the Board addressed whether Claimant was entitled to partial disability benefits under
the statute. The Board accepted the vocational expert testimony of Dr. Riley that
there was work available to the Claimant in the open labor market within his physical
restrictions and vocational qualifications.3 Dr. Riley identified thirteen potential job
opportunities for the Claimant. The Board appropriately scrutinized the survey,
eliminating certain jobs as not appropriate for Claimant either from a physical
standpoint or from a vocational perspective. Of the remaining positions, the
Claimant had an earning capacity of $789.55 per week, entitling him to partial
disability benefits at the rate of $306.97 per week.
Applying the controlling law set forth in the Delaware Supreme Court
decision Gilliard- Belfast v.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
BRIAN SCOTT JOHNSON, : Claimant Below-Appellant, : C. A. No. S23A-08-001 CAK v. : CANALFRONT BUILDERS, LLC, : Employer Below-Appellee. :
Submitted: February 7, 2024 Decided: February 29, 2024
On Appeal from Industrial Accident Board
AFFIRMED
MEMORANDUM OPINION AND ORDER
Walt F. Schmittinger, Esquire, Schmittinger and Rodriguez, P.A., 414 South State Street, Dover, DE 19903, Attorney for Claimant/Appellant.
Andrew J. Carmine, Esquire, Elzufon Austin & Mondell, 300 Delaware Avenue, Suite 1700, Wilmington, DE 19801, Attorney for Employer/Appellee.
KARSNITZ, R.J. PROCEDURAL BACKGROUND
On December 5, 2022, Brian Scott Johnson (“Claimant”) filed a Petition to
Determine Additional Compensation Due (the “Petition”), seeking (1) a
compensability determination and payment for total knee replacement surgeries to
both Claimant's left and right knees and (2) total disability benefits in connection with
the same.1
The Petition was heard before the Industrial Accident Board (the “Board”) on
July 20, 2023. The Board issued a decision on July 28, 2023 awarding the Claimant
the following benefits:
1. Outstanding medical expenses for the left and right total knee
replacement surgeries;
2. Total disability benefits, at the rate of $713.65, from October 12,
2022 until July 27, 2023;
3. Ongoing partial disability benefits, at the rate of $306.97,
effective July 28, 2023;
4. Reimbursement for the medical expert witness fees of Dr. Jose
Pando and Dr. Michael Silverman; and,
5. Attorneys’ fees and costs in the amount of $13,012.70.2
1 Stipulation of Facts (July 20, 2023). 2 Brian Scott Johnson v. Canalfront Builders, LLC, IAB No. 1476304, at 29 (7/28/2023).
2 Claimant filed a timely partial appeal, limited to the issue of Claimant's
entitlement to ongoing total disability benefits instead of ongoing partial disability
benefits.
Claimant filed his Opening Brief on October 18, 2023. Employer filed its
Answering Brief on November 8, 2023. Claimant filed his Reply Brief on December
1, 2023. I held oral argument on February 7,2024. This is my decision.
FACTS
Claimant has suffered from and treated for rheumatoid arthritis for at least
twenty years. During those years, he experienced pain in many joints, including his
shoulders, ankles, feet, and knees. Flare-ups of his rheumatoid arthritis would differ
in severity, but would give him difficulty performing tasks at work and at home. To
treat pain in his joints, as well as swelling and stiffness, Claimant was placed on
biological medications. Despite these symptoms, Claimant was fully functional and
performed medium to heavy duty construction work during those years.
Claimant suffered a compensable work accident on July 26, 2018, while
working for Canalfront Builders, LLC ("Employer"). While walking down a
construction driveway, he fell backwards, hyperextending and tearing the meniscus
in his left knee.
Following his work accident, Claimant experienced extreme pain and
3 swelling in his left knee, making it difficult for him to walk or even stand, let alone
work. Claimant underwent an aspiration of and injection to the left knee on August
7, 2018. Unfortunately, this procedure resulted in Claimant developing a dangerous
staph infection, which required him to undergo several surgeries on the left knee and
to discontinue the biological rheumatoid arthritis medication and begin intravenous
and oral antibiotics.
Claimant underwent bilateral total knee replacement surgeries; the right knee
in October 2022 and the left knee in January 2023. Following these surgeries,
Claimant experienced an improvement in his condition, with much better mobility
and much better function. In January, 2023, Claimant's rheumatologist, Dr. Pando,
determined that Claimant's symptoms were under control, and he did not require the
resumption of the biological medications.
THE BOARD HEARING
Dr. Pando, who testified for Claimant, had opined as early as June, 2022 that
the Claimant was unable to work. Dr. Pando last evaluated Claimant two weeks after
the January 2023 left total knee replacement surgery. He also testified that the
bilateral knee replacement was causally related to the original work injury.
Dr. Silverman, who also testified for Claimant, opined that returning to work
as a practical matter was not really an option. Dr. Silverman did not examine the
Claimant after the January 2023 total knee replacement surgery. He also testified
4 that the bilateral knee replacement was causally related to the original work injury.
Dr. Schwartz, who testified for Employer, evaluated Claimant in January
2019, October 2019, and March 2023 (after the bilateral knee replacement).
Although he supported the testimony about the causal connection between the
original work injury and the bilateral knee replacement, he testified that there was
no medical indication for total disability and, at the very minimum, sedentary work
would be appropriate.
At the July 20, 2023 Board hearing, Claimant confirmed that he drove to the
hearing in Dover, Delaware from his home in Harbeson, Delaware, for about one
hour. He confirmed that he can shop and put gas in his truck. Claimant advised that
he had not returned to work since the work accident and had not looked for or applied
for any work. When asked if he wanted to return to work, Claimant advised that
he was prevented from returning to work by social security disability benefits, as
those benefits would cease if he returned to work.
Employer accepted the compensability of the left knee surgery prior to the
Board hearing. After the hearing, the Board accepted the medical expert testimony
of Dr. Pando and Dr. Silverman regarding the causal relationship of the right total
knee replacement surgery to the July 26, 2018 work accident. However, the Board
accepted the medical expert testimony of Dr. Schwartz that Claimant was doing quite
well after the bilateral knee replacement and that there was no medical indication for
5 total disability. Rather, Claimant could work full-time in a sedentary duty capacity.
The Board cited Claimant's testimony that he had much better function since
the surgeries. It noted that Claimant was able to drive himself to the hearing, sit
through the hearing, and he did not use an assistive device to walk.
Having found that Claimant could return to work with physical restrictions,
the Board addressed whether Claimant was entitled to partial disability benefits under
the statute. The Board accepted the vocational expert testimony of Dr. Riley that
there was work available to the Claimant in the open labor market within his physical
restrictions and vocational qualifications.3 Dr. Riley identified thirteen potential job
opportunities for the Claimant. The Board appropriately scrutinized the survey,
eliminating certain jobs as not appropriate for Claimant either from a physical
standpoint or from a vocational perspective. Of the remaining positions, the
Claimant had an earning capacity of $789.55 per week, entitling him to partial
disability benefits at the rate of $306.97 per week.
Applying the controlling law set forth in the Delaware Supreme Court
decision Gilliard- Belfast v. Wendy's,4 the Board allowed the Claimant to rely on his
treating doctor's opinion regarding work status and awarded total disability benefits
paid up to the date of the Board's decision, July 28, 2023, with partial disability
3 Dr. Riley's vocational expert testimony about job availability for Claimant is not being challenged by Claimant on appeal. 4 754 A.2d 251 (Del. 2000). 6 benefits thereafter.
STANDARD OF REVIEW
The appeal before me is on the record of the proceedings before the Board.5
M y review is limited. I review the decision of the Board solely to determine whether
there is substantial competent evidence in the record to support the Board's findings
and whether its decision is free from legal error.6
I do not determine questions of credibility, or make my own factual findings.7
I view the facts in the light most favorable to the Board.8 A ruling of the Board will
not be disturbed on appeal unless it is based clearly on unreasonable or capricious
grounds.9 The "Court gives significant weight to the [Board] regarding its
application of legal principles in the specialized context of our state's workers'
compensation scheme, because the [Board] has the occasion to give life to that
scheme on a weekly basis in the many cases that come before it."10
ANALYSIS
The only issue on appeal is whether the Board's decision to terminate
5 29 Del. C. §10142. 6 Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965); General Motors Corp. v. Freeman,164 A.2d 686, 688 (Del. 1960); General Motors Corp. v. Jarrell, 493 A.2d 978, 980 (Del. Super 1985). 7 Id. 8 Chudnofsky v. Edwards, 208 A.2d 516,518 (Del. 1965). 10 Berry v. MIRTA QSR KNE LLC, 2021 WL 626944 (Del. Super. Feb. 16, 2021) citing Christiana Care Health Services v. Davis, 127 A.3d 391, 395 (Del. 2015). 7 Claimant's total disability benefits, and to award only partial disability benefits, is
supported by substantial evidence and free of legal error.
Claimant argues that the Board's acceptance of Dr. Schwartz' medical expert
opinion that Claimant is physically capable of sedentary duty work is legally flawed.
However, “[t]he Board is free to accept or reject in whole or in part testimony
offered before it and to fix its verdict upon testimony accepted."11 The Board is free
to accept one expert's opinion over another and may accept or reject an expert's
testimony entirely.12 The Board acted within its legal authority when accepting the
expert testimony of Dr. Schwartz over that of Dr. Pando and Dr. Silverman on the
issue of Claimant's physical ability to work. Dr. Schwartz was the only expert to
examine Claimant after he had fully recovered from both total knee replacement
surgeries. Dr. Silverman examined Claimant two days prior to Claimant's January
2023 left total knee replacement and Dr. Pando last examined Claimant only two
weeks after the January 2023 left total knee replacement. Therefore, Claimant's
experts were unable to testify as to Claimant's current physical ability levels.
Dr. Schwartz' third examination of Claimant occurred nearly two months after
Claimant's January 2023 left total knee replacement surgery. He recorded very mild
diffuse pain, no effusion, no evidence of instability, and near full range of motion of
11 Collins v. Giant Food, Inc., 1999 WL 1442024, at 3 (Del. Super. Oct. 13, 1999). 12 Torres v. Reybold Homes, Inc., 1999 WL 144024 (Del. Super. Apr. 24, 2014). 8 the right knee and mild effusion, moderate pain, near full range of motion, and no
instability of the left knee.
Dr. Schwartz' expert opinion as to Claimant's physical ability to work after the
two knee replacement surgeries is consistent with Claimant's surgeon, Dr. Choy,
who documented that Claimant was doing well after the left total knee replacement.
Dr. Pando recorded that Claimant's mobility was much improved and he did
not need to resume biologics because his symptoms were under control largely due to
the total knee replacements. Dr. Pando's decision not to resume the biologics, on the
basis that Claimant did not require them, suggests that Claimant's overall condition
had improved following the knee replacement surgeries as he points to the
discontinuance of the biologics as the reason for the worsening of Claimant's
rheumatoid arthritis. Dr. Pando's testimony indicates a clear improvement in
Claimant's function following the knee replacement surgeries.
Dr. Schwartz' expert opinion that Claimant is capable of sedentary duty work
is consistent with Claimant's testimony. When asked about his reporting to Dr.
Pando of feeling pretty good and not requiring medication refills, Claimant
explained that that was because he was sedentary. Claimant testified that he could
carry out activities such as driving, shopping, and fueling his truck. Although his
testimony was somewhat contradictory, Claimant ultimately testified that he had not
returned to work because if he did, his social security disability benefits would cease.
9 The Board's acceptance of expert testimony, even when contradicted by other
expert testimony, qualifies as substantial evidence for purposes of appeal.13
Substantial evidence is "such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion."14 Here, the Board's decision to accept Dr.
Schwartz' medical expert opinion as to Claimant's current work capabilities was
supported by substantial evidence and within the Board's purview as trier of fact.
The Board’s recognition that the left knee work injury was causally connected
to the ultimate bilateral total knee replacement, and that the discontinuation of the
biologics medication because of the risk of infection led to a worsening of
Claimant’s longstanding rheumatoid arthritis, does not lead a fortiori to a Board
conclusion that Claimant was totally, as opposed to partially, disabled. Indeed, after
the bilateral total knee replacement, Claimant was doing better, despite the
continuing arthritis. This certainly supports a Board finding of partial disability; i.e.,
that Claimant could work in a sedentary duty capacity.
CONCLUSION
For the foregoing reasons, Claimant’s partial appeal is denied, and the
decision of the Board is AFFIRMED.
IT IS SO ORDERED.
13 DiSabatino Bros. Inc. v. Wortman, 453 A.2d 102, 106 (Del. 1988). 14 Histed v. E.J DuPont de Nemours & Co., 621 A2.d 340, 342 (Del. 1993).
10 /s/ Craig A. Karsnitz Craig A. Karsnitz
cc: Prothonotary