Lankford v. Kent County

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ROBERT LANKFORD, )
Appellant )
)
v. ) C.A. No.: N24A-12-001 SSA
)
KENT COUNTY, )
Appellee )

Submitted: October 8, 2025
Decided: October 16, 2025

MEMORANDUM OPINION AND ORDER

Upon Appeal from the Industrial Accident Board: Reversed and Remanded.

Michael I. Silverman, Silverman McDonald & Friedman, Wilmington, Delaware
Attorney for Appellant, Robert Lankford.

Andrew J. Carmine, Elzufon Austin & Mondell, Wilmington, Delaware
Attorney for Appellee, Kent County.
Robert Lankford (hereinafter “Appellant” or “Claimant”) appeals the

decision of the Industrial Accident Board (hereinafter “Board”) which denied his

Petition to Determine Additional Compensation Due. The parties submitted

briefing and presented oral argument on the issue. After careful review of the

record and legal standards, the Court must reverse the decision of the Board.

Factual and Procedural History

Appellant has a long history before the Board. Appellant worked for

Appellee for 21 years. In 2010, he was injured while conducting an emergency

inspection within the course of his employment. To conduct this inspection, he

lifted a manhole cover. When Appellant lifted the cover, he heard a pop. He was

unable to stand up. Appellant was misdiagnosed after his injury. Three years later,

he underwent surgery. During which time “[t]he surgeon accidentally cut five

nerves and stapled a nerve to the hernia.” 1 It appears undisputed that Appellant

lives in substantial pain.2

In 2022, Appellee petitioned the Board to review Appellant’s total disability.

The 2022 decision of the Board has been reviewed by this Court, with a view

toward understanding the record as to recurrence, which requires a return of

1
D.I. 23 at p. 10.
22
See report of Dr. Schwartz, Appellee’s medical expert, dated January 23, 2024 (“He is crying
during today’s evaluation….Mr. Lankford is ambulating with the use of a walker. He continues
to have an extremely tough time getting up and down from a seated position.”).
impairment. It does not appear that any psychologist or psychiatrist testified at that

time. In that decision, the Board found “work is therapeutic as it decreases stress,

catastrophic thinking and anxiety and it increases coping strategies.” 3 The 2022

decision went on to state “[t]here are many studies showing that work is so

important for mental and physical health.”4 “The Board accepts Dr. Schwartz’s

opinion and explanation that work is therapeutic, because it decreases stress,

catastrophic thinking, and anxiety, and it increases coping strategies.”5 Dr.

Schwartz is an orthopedic surgeon, who testified on behalf of Appellee. Appellant

appeared pro se at that time. The Board reduced Appellants’ benefits in 2022.

That decision is not the subject of this appeal, but provides helpful background.

On April 19, 2023, Appellant filed two Petitions to Determine Additional

Compensation Due. The first was filed pursuant to 19 Del. C. § 2347 for a

recurrence of total disability. The second related to the causal relationship between

the industrial accident and symptoms in Appellant’s left hip and lumbar spine. The

Board held a hearing in July of 2024. At that time, the Board was unable to reach

a decision.

A second hearing took place on October 24, 2024. The parties stipulated “a

portion of the Claimant’s psychological issues are causally related to the work

3
Id. at p. 6.
4
Id. at p. 10.
5
Id. at p. 13.
accident, but not the entirety of his psychological issues.” Appellant presented

testimony from Dr. Dettwyler regarding psychological injuries. Appellant also

presented testimony from Dr. Newell, who specializes in physical medicine and

rehabilitation and Dr. Zaslavsky, an orthopedic surgeon. Appellee again presented

testimony from Dr. Schwartz, the same orthopedic surgeon who testified in 2022.

After the October hearing, the Board issued a written decision. The Board

denied both of Appellant’s Petitions. This appeal followed. The scope of the

appeal is whether the decision to deny Appellant’s Petition to Determine

Additional Compensation Due based on a recurrence, specific to psychological

injury, was based upon substantial evidence.

Standard of Review on Appeal from the Industrial Accident Board

“[T]he sole function of the Superior Court….is to determine whether or not

there was substantial competent evidence to support the finding of the Board, and,

if it finds such in the record, to affirm the findings of the Board.” 6 “Only where

there is no satisfactory proof in support of a factual finding of the Board may the

Superior Court, or this Court for that matter, overturn it.”7 “If there is substantial

supporting evidence for the Board’s decision and no mistake in law, the decision

6
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
7
Id. at 67.
will be affirmed.” 8 “Substantial evidence means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”9

On appeal, “this Court will not weigh the evidence, determine questions or

credibility, or make its own factual findings.” 10 However, where the Board fails to

make adequate subordinate findings to support its ultimate conclusion, the Court

will reverse. 11 This Court will only find an abuse of discretion sufficient to reverse

the Board if the decision “has ‘exceeded the bounds of reason in view of the

circumstances.’”12 Where there is a “conflict in the evidence, it [is] the duty of the

Board to determine whose testimony it deemed most worthy of credit, and to state

its conclusions of fact accordingly.” 13

This case involves the compensability of a psychological disorder under the

Workers’ Compensation Act, so the Court will review the relevant caselaw before

proceeding to an analysis. “This Court has previously recognized the

compensability of psychological and neurological disorders when they are the

result of an industrial accident.”14 In a review by this Court of a Board decision

8
Turner v. Bennett’s Action Glass, 1998 WL 733763 at *2 (Del. Super.) citing Longobardi v.
Unemployment Ins. Appeal Bd., 287 A.2d 690, 692 (1971).
9
This and That Services Co. Inc. v. Nieves, 303 A.3d 1220, 1226 (Del. 2023) quoting Christiana
Care Health Servs. v. Davis, 127 A.3d 391, 394 (Del. 2015).
10
Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159 (Del. 2009).
11
Board of Pub. Ed. in Wilmington v. Rimlinger, 232 A.2d 98, 100 (Del. 1967).
12
Person-Gaines, 981 A.2d at 1161 citing Stanley v. Kraft Foods, Inc., 2008 WL 2410212, at *2
(Del. Super.).
13
Le Tourneau v. Consol. Fisheries Co., 51 A.2d 862, 867 (Del. 1947).
14
Delaware v. Cephas, 637 A.2d 20, 23 (Del. 1994).
related to psychological disorder, this Court found “[w]hen presented with

competing expert testimony, the IAB, as the finder of fact, must make a credibility

assessment to determine which expert’s opinion to believe.”15 Similarly, in

Standard Distributing, this Court held “[w]hen conflicting expert opinions are each

supported by substantial evidence, the Board is free to accept one opinion over the

other opinion.” 16 “Although the Board is entitled to discount the testimony of a

witness, even a medical witness, on the basis of credibility, it must provide

specific, relevant reasons for doing so.”17 If an expert medical opinion is based

entirely upon the claimant’s subjective report of injuries, the Board may reject that

conclusion, if it finds the underlying facts to be different. 18

This case involves an analysis of recurrence, which is defined as “the return

of an impairment without the intervention of a new or independent accident.” 19

“Work restrictions that continue to impair an individual in the same manner do not

support a finding that the individual had a recurrence of total

disability…Furthermore, a slight change in impairment will not support a finding

of recurrence in total disability. Because a slight change in impairment does not

15
Muziol v. DaimlerChrysler Corp., 2002 WL 819139, at *5 (Del. Super.).
16
Standard Distrib., Inc., v. Hall, 897 A.2d 155, 158 (Del. Super. 2006).
17
Turbitt v. Blue Hen Lines, Inc., 711 A.2d 1214, 1215 (Del. 1998).
18
Id. at 1215–16.
19
DiSabatino & Sons v. Facciolo, 306 A.2d 716, 719 (Del. 1973).
support a finding of recurrence, neither does a continuation of impairment.” 20 The

burden of demonstrating recurrence is with Appellant.

Testimony and Arguments Before the Board in 2024

Appellant presented testimony from Dr. John Dettwyler, Ph.D. Dr.

Dettwyler began treatment of Appellant in October of 2016. At some point, he

diagnosed Appellant with adjustment disorder with mixed anxious and depressed

features. 21 Dr. Dettwyler testified “I have spoken with him numerous times in the

last two years about hospitalization.”22 On March 7, 2022, Dr. Dettwyler opined

Appellant was totally disabled.23 Shortly thereafter, the Board made a

determination that Appellant could return to work on a part-time, at-home basis.

However, the 2022 decision of the Board does not reference Dr. Dettwyler at all.

He opined in his 2024 testimony that Appellant’s “condition has gotten worse and

has deteriorated over time.” 24 Appellee did not present testimony from a

psychologist—and did not need to do so under the law.

Testimony from Dr. Schwartz, on behalf of Appellee, was also presented to

the Board. Dr. Schwartz testified on August 7, 2023, and again on June 13, 2024.

During his 2023 deposition, Dr. Schwartz testified as to his various evaluations of

20
Chubb v. State, 961 A.2d 530, 535–36 (Del. 2008).
21
Tr. Dettwyler, IAB Hearing No. 1404967, at 6:3–6.
22
Id. at 9:1–2.
23
Id. at 20:4–22.
24
Id. at 28:16–19.
Appellant over the years. In 2021, Appellant reported severe back pain, groin pain,

and lower extremity pain. He rated his pain as a 10 out of 10. 25 In 2021, Appellant

was using crutches. 26

Appellant objected to Dr. Schwartz relating an opinion as to the mental

health benefits of work by a patient in chronic pain.27 That opinion specifically

referenced a study on work and loneliness to support to proposition that “work is a

task that will distract someone who’s dealing with chronic pain?” 28 Dr. Schwartz

is an orthopedic surgeon and the stipulation as to his qualifications was limited to

that area of expertise.29

The Board’s Decision

In summarizing the evidence presented, the Board summarized Dr.

Dettwyler’s opinion as “[c]laimant’s inability to work contributes to his depression,

stress, and anxiety and Claimant’s condition has gotten worse and deteriorated over

time.” 30 The Board summarized Dr. Newell’s testimony. Specifically, his opinion

that “Claimant’s condition had become progressively worse over the course of the

last couple of years.”31

25
Tr. Schwartz, IAB Hearing No. 1404967, at 6–7.
26
Id. at 8:6–7.
27
Id. at 12–13.
28
Id.
29
Id. at 5:8–12. This stipulation as to his qualification as an expert in orthopedic surgery is
consistent in his subsequent deposition on June 13, 2024 at p. 4-5.
30
Lankford v. Kent Cnty., IAB Hearing No. 1404967 (Nov. 8, 2024), at 3.
31
Id. at 4.
The Board stated in its summary of Dr. Schwartz’ opinion “[a]s work is

considered to be therapeutic, Dr. Schwartz felt Claimant would be capable of a

minimum of four hours a day at home in a sedentary position as a starting point.”32

“Dr. Schwartz did not see any psychological disorders or problems when he

examined Claimant.” 33 In reaching its decision to deny both petitions, the Board

made findings separately on the issue of recurrence and the compensability of the

left hip and low back.

Analysis

“The Board may, in its discretion, disregard any customary rules of evidence

and legal procedures so long as such a disregard does not amount to an abuse of its

discretion.”34 In order to assess whether the Board abused its discretion, the

Supreme Court has explained this Court should examine whether that decision

“exceeded the bounds of reason in view of the circumstances, [or] so ignored

recognized rules of law or practice as to produce injustice.’”35

In Zayas, the Supreme Court reiterated that Delaware law “‘requires an

expert’s opinion be based upon a proper factual foundation and sound methodology

to be admissible.’ Pursuant to that rule, any expert who testifies must satisfy

32
Id. at 10.
33
Id. at 11.
34
Zayas v. Delaware, 273 A.3d 776, 785 (Del. 2022) quoting 19 Del. Admin. C. § 1331-14.3.
35
Id. quoting Roos Foods v. Guardado, 152 A.3d 114, 118 (Del. 2016).
Delaware Rule of Evidence 702 for his or her testimony to be admissible as

evidence. If an expert’s opinion lacks a factual foundation, then the opinion is not

valid.” 36

The 2022 decision did not reference any psychological disorders. The

decision includes generic platitudes about the benefits of work. Again, that

decision is not the subject of this appeal, but it assists the Court in establishing a

history for determining whether the decision to deny Appellant’s Petition for

Additional Compensation Due to recurrence resulting from psychological disorders

is supported by substantial evidence.

After a careful review, this Court cannot reconcile the Board’s conclusion in

this matter or find that it is supported by substantial evidence. Specifically, the

Board relied on testimony from Dr. Schwartz regarding Appellant’s psychological

disorders, specifically, “Dr. Schwartz did not see any psychological disorders or

problems when he examined Claimant.” 37 This is outside the scope of his

expertise. While the Board was free to disregard the expert testimony of

Appellant’s psychologist, the decision does not clearly reject Dr. Dettwyler’s

opinion. Instead, the decision misstates the testimony of Dr. Dettwyler—

specifically, the Board concluded Dr. Dettwyler “did not indicate there was any

36
Id. quoting Perry v. Berkely, 996 A.2d 1262 (Del. 2010).
37
Lankford v. Kent Cnty., IAB Hearing No. 1404967 (Nov. 8, 2024), at 11.
change in Claimant’s condition.”38 That was not his testimony. 39 Instead, he

testified he diagnosed Appellant with psychological disorders. Over the past two

years, Dr. Dettwyler has considered hospitalization of Appellant. Dr. Dettwyler

opined Appellant “has gotten worse and has deteriorated.” The Board also

summarized Dr. Dettwyler’s testimony as “Claimant’s inability to work contributes

to his depression, stress, and anxiety and Claimant’s condition has gotten worse

and deteriorated over time.” However, the testimony shows Dr. Dettwyler does not

attribute the depression, stress, and anxiety to Appellant’s inability to work—he

relates it to Appellant’s pain.40

Appellee did not present a psychologist, and they did not need to present an

expert on that issue—because the Board is free to accept or reject testimony.

However, to the extent any expert testified on behalf of Appellee about the

psychological diagnosis and recurrence, it was Dr. Schwartz. That was outside the

scope of his expertise. The Court finds the Board’s reliance on Dr. Schwartz’

testimony for matters of psychological disorders inappropriate. Further, the

38
Id. at 14.
39
At oral argument, counsel discussed the theory that Dr. Dettwyler did not complete a change
form, and on that basis, the Board rejected his testimony as to recurrence. The Court appreciates
counsel’s argument, but the Board’s decision does not reference the form as a basis for its
decision. The Board is entitled to discount testimony, but it must provide specific and relevant
reasons for its decision.
40
Tr. Dettwyler, IAB Hearing No. 1404967, at 6:3–14. “I diagnosed him with adjustment
disorder with mixed anxious and depressed features secondary to his injuries sustained on
6/2/10…. He demonstrated significant symptoms of anxiety and depression as a product of his
persistent pain and inability to find any direction for improvement.”
Board’s findings as to Dr. Dettwyler are not supported by his testimony. As such,

the decision is not based on substantial evidence.

The record reflects a stipulation that some of Appellant’s psychological

illnesses are a result of his compensable work injury. The Court returns to the

definition of recurrence as the return of an impairment without the intervention of a

new or independent accident and notes the absence of any finding in 2022 related

to psychological disorders. Delaware law recognizes the compensability of

psychological disorders when they are the result of an industrial accident.

The Board’s reliance upon an orthopedic surgeon to opine as to

psychological disorders and the therapeutic benefits of work in pain management

lacked the proper foundation. The Board also misstated the testimony of Dr.

Dettwyler. As such, the Board erred in its application of the law and its factual

findings. This matter shall be reversed and remanded so the Board can consider

whether Appellant has experienced a recurrence based on his psychological

disorder.

IT IS SO ORDERED.

/s/Sonia Augusthy
Judge Sonia Augusthy