Franceschi-Rodriguez v. Perdue Foods, LLC

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

)
LUIS FRANCESCHI-RODRIGUEZ, )
) C.A. No.: S25A-09-001 RHR
Appellant, )
)
v. )
)
PERDUE FOODS, LLC, )
)
Appellee. )

Submitted: February 3, 2026
Decided: May 22, 2026

MEMORANDUM OPINION

On Appeal from the Industrial Accident Board,
REVERSED.

Walt F. Schmittinger, Esq., SCHMITTINGER AND RODRIGUEZ, P.A., Dover,
Delaware, Attorney for Appellant Luis Franceschi-Rodriguez.

Andrea C. Panico, Esq., TYBOUT, REDFEARN & PELL, Wilmington, Delaware,
Attorney for Perdue Foods, LLC.

Robinson, J.
Luis Franceschi-Rodriguez appeals from the Industrial Accident Board’s (the

“Board”) decision to terminate his temporary total disability benefits after

concluding he was not a displaced worker. The decision arose after Franceschi-

Rodriguez received a compensable workplace injury on March 1, 2022, while he

was working for Perdue Foods, LLC (“Perdue”), but was later released to work under

permanent sedentary work restrictions. This court reverses the Board’s decision

without prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

Franceschi-Rodriguez is a native of Puerto Rico who only speaks and

understands Spanish. Franceschi-Rodriguez obtained a four-year degree and

certification in respiratory therapy while living in Puerto Rico. This education was

entirely in Spanish. Franceschi-Rodriguez worked as a respiratory therapist in a

Puerto Rican hospital from 1995 to 1998 and worked as a police officer part-time

from 1988 to 1998.1

When Franceschi-Rodriguez’s parents subsequently fell ill, he came to

Massachusetts to care for them at some point in the 1990s2 until 2020.3 While taking

care of his parents, Franceschi-Rodriguez did occasional painting work for a friend’s

1
D.I. 6, R. of Industrial Accident Board (hereinafter “R. of IAB”), Tab 9 at *13.
2
It is unclear when exactly Franceschi-Rodriguez moved to Massachusetts. Franceschi-Rodriguez
mentioned a few different years in the 1990s, but an exact year was not specified.
3
D.I. 6, R. of IAB, Tab 2 at *59.
2
construction company. After the death of his parents, and upon moving to Delaware,

Franceschi-Rodriguez got a job at Perdue. Because many employees at Perdue were

Spanish-speaking, an interpreter was always available and some of the management

staff were bilingual. Franceschi-Rodriguez’s degree and certification from Puerto

Rico could not transfer to Delaware unless he took courses and completed a

certification exam in English.

On March 1, 2022, Franceschi-Rodriguez sustained compensable injuries

while working at Perdue from the repetitive lifting of chicken boxes weighing

around fifty-nine pounds. This lifting caused strain and injury to Franceschi-

Rodriguez’s right upper extremity. After undergoing surgery for his right shoulder

in October of 2022, Franceschi-Rodriguez continued to experience pain, limited

range of motion, and functional deficits.

Franceschi-Rodriguez’s surgeon, Dr. Manifold, released him in July of 2023

with permanent sedentary work restrictions. Franceschi-Rodriguez was restricted

from any overhead use of his right arm, and lifting, pulling, or pushing more than

ten pounds. Dr. Mavrakakis, a specialist in spinal conditions, treated Franceschi-

Rodriguez’s non-compensable spinal injury and also restricted him to sedentary

work. Franceschi-Rodriguez was evaluated throughout treatment by Dr. Gelman,

Perdue’s expert, between March 2023 and February 2025. Dr. Gelman initially

opined that Franceschi-Rodriguez could perform light duty work, but then changed

3
his opinion to sedentary restrictions due to Franceschi-Rodriguez’s worsening

symptoms in February of 2025. Later, Dr. Gelman released an addendum—not based

on any new information—attempting to change this opinion again to light duty work.

Based on this information, Perdue filed a petition for review with the Board

on December 17, 2024, seeking termination of Franceschi-Rodriguez’s benefits

because he was physically able to work. In preparation for the hearing, Perdue

acquired a labor market survey from Dr. Riley, which compiled a list of available

jobs. The survey was based on Franceschi-Rodriguez’s physical and vocational

abilities and geographic location. Dr. Riley relied on Dr. Gelman’s opinion that

Franceschi-Rodriguez could perform light duty work. She was unaware that

Franceschi-Rodriguez was unable to understand or communicate in English. Dr.

Riley’s survey compiled a list of ten jobs available, eight of which were considered

light duty and two considered sedentary. Of the two sedentary jobs, one sought a

bilingual applicant, and the other job was filled prior to the hearing, although Dr.

Riley indicated a similar position would be available at a different location. Perdue

did not have any positions available within Franceschi-Rodriguez’s restrictions.

The Board held a hearing on the petition on August 4, 2025, and rendered a

decision on August 11, 2025. In response to Perdue’s request to terminate temporary

total disability, Franceschi-Rodriguez claimed he was a displaced worker who

should remain entitled to those benefits. The Board found in favor of Perdue,

4
reasoning that Franceschi-Rodriguez was not a displaced worker but was entitled to

partial disability at the total disability rate.

In its decision, the Board addressed whether Franceschi-Rodriguez was a

displaced worker. In weighing the evidence presented, the Board found there was no

dispute that Franceschi-Rodriguez was no longer totally medically disabled and

could work in some capacity. The Board found that Franceschi-Rodriguez was not

actually displaced because he claimed to have sought employment in construction

and housekeeping, which were beyond his physical abilities, and did not make an

effort to find work within his restrictions. The Board also found that Franceschi-

Rodriguez was not prima facie displaced for the following reasons:

He is 58 years old and therefore below the normal retirement age. He
has a four year university education, albeit achieved in Puerto Rico in
his native Spanish tongue, and a ten year history of law enforcement
experience, given the time he served as a police officer, also in Puerto
Rico. While clearly Claimant’s lack of proficiency with the English
language is an employment barrier, it is not enough alone to support a
finding that Claimant is per se prima facia displaced. His educational
and vocational histories suggest that, outside of the language issue,
Claimant has exhibited a host of skills beyond basic labor including a
four year degree and a decade spent in law enforcement. While his
inability to speak the national language by Dr. Riley’s own admission
may present obstacles for employment, especially for someone who has
only worked in construction or as a factory laborer for Employer, and
the need for sedentary work may well drain the pool of potential
employers even further, at least as it relates to the instant matter, the
Board does not find Claimant a prima facia displaced worker.4

4
D.I. 6, R. of IAB, Tab 9 at *22.
5
The Board, in considering Franceschi-Rodriguez’s ability to work and its

impact on his earning capacity, found that he was limited to sedentary restrictions.

In support of this conclusion, the Board explained why Dr. Mavrikakis’ testimony

was more persuasive and rejected Dr. Gelman’s.

Because of this finding, the Board further addressed the labor market survey

and reasoned that the only jobs available to Franceschi-Rodriguez were the two

sedentary options. The Board stated that one option required a bilingual applicant,

which Franceschi-Rodriguez is not eligible for because of his inability to speak,

write, or understand English. The Board concluded that Franceschi-Rodriguez’s

language capabilities made the other option, which was potentially available in

another location, unlikely to be viable.

Based on these findings, the Board ultimately concluded that although it was

unwilling to find Franceschi-Rodriguez prima facie displaced, it was not persuaded

that Franceschi-Rodriguez was capable of the same earning capacity as he was at the

time of the injury. The Board stated that Perdue failed to establish Franceschi-

Rodriguez’s earning capacity according to his physical restrictions. The Board,

therefore, concluded that Franceschi-Rodriguez was entitled to partial disability at

the total disability rate.

6
After the Board rendered its final decision, Franceschi-Rodriguez timely filed

this appeal on September 5, 2025.5 He filed his opening brief on October 13, 2025.6

Perdue filed its answering brief on December 10, 2025.7 Franceschi-Rodriguez filed

a reply brief on January 20, 2026.8

THE PARTIES’ CONTENTIONS

A. Franceschi-Rodriguez’s Claims

Franceschi-Rodriguez’s primary claim on appeal is that the Board erred in

finding that he was not a displaced worker and, therefore, not entitled to total

disability. Most of Franceschi-Rodriguez’s argument focuses on his language

barrier. Franceschi-Rodriguez argues that the Board erred in finding that he was not

prima facie displaced. His argument rests on the fact that he cannot read or write in

English and is limited in understanding English. He explains that he was able to

work at Perdue because there were primarily Spanish speaking employees, and an

interpreter was available.

Franceschi-Rodriguez claims that the Board’s determination was not

supported by substantial evidence and that its reasoning supported a finding of prima

facie displacement. Franceschi-Rodriguez argues that he is essentially unemployable

5
D.I. 1, Appellant’s Notice of Appeal.
6
D.I. 12, Appellant’s Opening Br. on Appeal.
7
D.I. 13, Appellee’s Answering Br.
8
D.I. 18, Appellant’s Reply Br. on Appeal.
7
due to his limitations, prior experience and education, lack of fluency in the English

language, and lack of training. Franceschi-Rodriguez alleges that his prior education

and work experience in Puerto Rico do not translate into present employability. He

states that the Board has not identified how those skills are applicable and concludes

that they are not transferable because of the language barrier. Franceschi-Rodriguez

highlights that Dr. Riley could not find one job that the Board deemed suitable for

him according to his restrictions.

Franceschi-Rodriguez relies on Yoder v. Twin River Management Group, Inc.,

arguing that, as in his case, there was no substantial evidence to support the Board’s

conclusion in that case.9 Franceschi-Rodriguez notes a difference between his case

and Yoder is that the claimant there only had an eighth-grade education from an

Amish school, whereas he has his four year degree and certification. Franceschi-

Rodriguez reasons that this difference is insignificant because his education is not

useful to him because of the language barrier.

B. Perdue’s Claims

In its answering brief, Perdue asserts that the Board’s decision was supported

by substantial evidence because of Franceschi-Rodriguez’s education, background,

and transferable skills. Perdue agrees with the Board’s decision that Franceschi-

Rodriguez was not prima facie displaced because he has transferable skills based on

9
2025 WL 2207447 (Del. Super. Ct. Aug. 4, 2025).
8
his history. Perdue alleges that this background shows that he is a person capable of

completing a university degree, working in the fields of healthcare and law

enforcement, interacting with others, and developing new skill sets. Perdue states

that the Board properly found that Franceschi-Rodriguez’s language barrier was not

enough alone to support prima facie displacement.

Perdue argues that this case differs from Yoder. Perdue points out that the

claimant there was older, performed manual labor tasks longer, worked for the same

employer for over twelve years, and only had a high school education. Perdue states

that unlike the case here, the claimant in Yoder was proficient in English, had a smart

phone, and could utilize a computer. Perdue contrasts the case with Franceschi-

Rodriguez’s situation by claiming that Franceschi-Rodriguez is capable of

functioning in day-to-day society even with his language barrier. Perdue highlights

Franceschi-Rodriguez’s education, work experience, residency in two different

states, caring for his ill parents, going to doctor’s appointments, applying for jobs,

and working at Perdue. Perdue asserts that Franceschi-Rodriguez’s manual labor

experience is limited compared to the work experience he had in Puerto Rico.

Perdue alleges that Franceschi-Rodriguez’s claims that his skills are not

transferable due to his language barrier is not supported by Dr. Riley’s testimony.

Perdue rests this assertion on accommodations that Dr. Riley claimed could be made

at various jobs to assist Franceschi-Rodriguez’s language barrier. Perdue references

9
Dr. Riley’s discussion of voice recognition software that could be used in

Franceschi-Rodriguez’s native language and ADA accommodations for his injuries,

such as a single-handed keyboard.

C. Franceschi-Rodriguez’s Response

Franceschi-Rodriguez argues that any transferable skills he may have are a

legal and practical nullity in Delaware’s labor market. Franceschi-Rodriguez

emphasizes that neither the Board nor Perdue has established what transferable skills

he has and how they transfer to the labor market. Franceschi-Rodriguez asserts that

his education and work experience in Puerto Rico, entirely in Spanish, ended nearly

thirty years ago. He alleges that he has worked as a manual laborer for the last

twenty-five years. Franceschi-Rodriguez argues that it is an error of law to

categorize “decades-old, nontransferable certifications as ‘skills’ . . . .”10

Franceschi-Rodriguez also argues that Dr. Riley’s accommodation

suggestions of voice recognition software and one-handed keyboards are factually

unsupported by the record. Franceschi-Rodriguez alleges that Dr. Riley came up

with these accommodations but was unable to identify employers willing to offer

them. Even if she was able to do so, Franceschi-Rodriguez states that he does not

have the technological literacy to utilize these accommodations. Nonetheless,

Franceschi-Rodriguez points out that the test for employment is whether jobs are

10
D.I. 18, Appellant’s Reply Br. on Appeal, at *3.
10
realistically within reach of the injured worker, not if employment is technically

possible.

Finally, Franceschi-Rodriguez argues that he is more severely displaced than

the claimant in Yoder. Franceschi-Rodriguez states that he was physically restricted

like the claimant in Yoder but lacks the technological and communication tools that

the claimant possessed. Franceschi-Rodriguez reasons that if an English-speaking

laborer like the Yoder claimant was displaced, he should certainly be found displaced

because of his language barrier and technological illiteracy.

STANDARD OF REVIEW

This court has appellate jurisdiction over final decisions made by an agency

under 29 Del. C. § 10142.11 “The review of an Industrial Accident Board’s decision

is limited to an examination of the record for errors of law and a determination of

whether substantial evidence exists to support the Board’s findings of fact and

conclusions of law.”12 Substantial evidence includes “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion,” or “more than a

scintilla but less than a preponderance of the evidence.”13 This court will not act as

the trier of fact, weigh evidence, determine credibility, or make factual findings and

11
Foodliner v. Hidinger, 2025 WL 2795866, at *5 (Del. Super. Ct. Sept. 30, 2025)(quoting Quality
Assured Inc. v. David, 2022 WL 17442738, at *3 (Del. Super. Ct. Dec. 6, 2022)).
12
Stanley v. Kraft Foods, Inc., 2008 WL 2410212, at *2 (Del. Super. Ct. Mar. 24, 2008)(citing
Histed v. E.I. duPont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993)).
13
Foodliner, 2025 WL 2795866, at *6.
11
conclusions.14 Rather, this court “must give deference to the experience and

specialized competence of the Board and must take into account the purposes of the

Worker’s Compensation Act.”15

DISCUSSION

The displaced worker doctrine “is simple in articulation, but much more

difficult in application.”16 It allows “a claimant to collect total disability even though

she may have physically recovered sufficiently to return to the work force but is now

unable to secure employment because of the injury.”17 Displacement occurs if the

employee’s injury makes it so he “will no longer be employed regularly in any well-

known branch of the competitive market and will require a specially-created job . . .

.”18 This analysis is done on a case-specific basis and has shifting burdens between

the employer and employee.19

When an employer files a petition to terminate total disability benefits, “the

employer bears the initial burden of demonstrating that the employee was no longer

totally incapacitated from working.”20 If this burden is met, it then shifts to the

employee to establish he is a displaced worker.21 The employee must prove “he is

14
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
15
Foodliner, 2025 WL 2795866, at *6.
16
Smith v. Allen Foods, 2026 WL 383832, at *1 (Del. Super. Ct. Feb. 11, 2026).
17
Miranda v. DuPont, 2000 WL 303317, at *2 (Del. Super. Ct. Feb. 29, 2000).
18
Id.
19
Wyatt v. State, 1998 WL 283469, at *4 (Del. Super. Ct. Mar. 27, 1998).
20
Miranda, 2000 WL 303317, at *2.
21
Id.
12
an unskilled worker, unable to perform any task other than general labor,” and that

“his inability to perform the duties of a general laborer is causally related to the

accident in issue.”22 If an employee cannot establish prima facie displacement, he

can establish actual displacement by showing he made reasonable efforts or actively

searched for a job, but was unsuccessful.23 If displacement by either means is proven,

the burden shifts back to the employer “to identify available job opportunities within

the employee’s restrictions.”24

“The displaced worker test does not compel the Board to evaluate whether the

employee is able to return to his former job, but rather, whether the employee is able

to transfer his skills to employment in some other fashion.”25 The Board must

consider factors such as “the employee’s age, education, general background,

occupational and general experience, emotional stability, the nature of work

performable under the physical impairment and the availability of such work.”26 To

render a decision on displaced worker status, the Board must weigh those factors

together with the medical testimony.27

22
Hensley v. Artic Roofing, Inc., 369 A.2d 678, 679 (Del. 1976).
23
Miranda, 2000 WL 303317, at *2; see also Hooten v. Blue Hen Disposal, 2023 WL 1433129,
at *7 (Del. Super. Ct. Feb. 1, 2023).
24
Hooten, 2023 WL 1433129, at *7.
25
Hutchens v. Town of Milton, 1996 WL 658813, at *4 (Del. Super. Ct. Oct. 8, 1996).
26
Id. (quoting Ham v. Chrysler Corp., 231 A.3d 258, 261 (Del. 1967)).
27
Id.
13
Additionally, each case that raises the displaced worker doctrine is dependent

on its own unique circumstances.28 “While another case may be similar to that of

Claimant, that case is not determinative to the outcome of this case; and this Court

will not reverse the Board’s holding simply because the two cases appear to be

similar.”29 Although the parties here provided thorough arguments under Yoder, that

case and others do not govern the outcome.

The primary issue the parties seek to have this court address is focused on

Franceschi-Rodriguez’s language barrier. This court agrees with the Board’s finding

that a language barrier alone is not sufficient to prove an employee is prima facie

displaced. Rather, the effects of Franceschi-Rodriguez’s physical injury coupled

with the above referenced factors are determinative of displacement. Though not

dispositive, a language barrier is still relevant to consider in a displaced worker

analysis as seen in recent decisions from the Board.30 Considering the record, this

court finds that the Board’s conclusion that Franceschi-Rodriguez was not prima

facie displaced was not supported by the substantial evidence on the record.

Therefore, its decision must be reversed.

28
Martinez v. Propak Logistics, LLC, 2007 WL 3105817, at *3 (Del. Super. Ct. Oct. 2, 2007).
29
Id.
30
See Yoder, 2025 WL 2207447, at *4 (quoting the Board’s decision, “[Claimant] is only 62 years
old, finished 8th grade at an Amish school, has no language barrier and also speaks and reads in
German and Pennsylvania Dutch.”); see also Smith, 2026 WL 383832, at *3 (quoting the Board’s
decision, “Claimant completed 10th grade, has no language barrier, drives a car, functions as an
adult in today’s society, and has a delightful personality.”).
14
A. Franceschi-Rodriguez Established He Was Prima Facie Displaced at the
Hearing.
First, the court will consider whether Franceschi-Rodriguez sufficiently

established he was prima facie displaced at the hearing before the Board. In doing

so, “this Court is not restricted by the Board’s findings of fact because it is the

evidence before the Board rather than the findings of the Board with which this Court

is concerned.”31

After Perdue met its initial burden—which is undisputed—the record shows

that Franceschi-Rodriguez met his burden of proving he is a prima facie displaced

worker by establishing he is unskilled and can no longer work in general labor

because of his injury.32 Because he met this burden, this court does not have to

consider whether Franceschi-Rodriguez is actually displaced.

1. Franceschi-Rodriguez is Unskilled Because He Cannot Perform a Job Other Than

General Labor.

An unskilled worker is one who is “unable to perform any task other than

general labor.”33 On his burden, Franceschi-Rodriguez met this definition. He

explained that he worked for a friend’s construction company doing painting work

occasionally after moving to Massachusetts to care for his ill parents. After his

31
Zdziech v. Del. Auth. for Specialized Transp., 1988 WL 109338, at *4 (Del. Super. Ct. Oct. 13,
1988).
32
See Hensley, 369 A.2d at 679.
33
Id.
15
parents died, Franceschi-Rodriguez began working at Perdue in Delaware doing

general labor. His work history beyond general labor was done in Puerto Rico and

in Spanish, all of which ended around 1998.

Franceschi-Rodriguez’s degree and certification in respiratory therapy is of

no value now because it cannot be transferred to Delaware unless he is able to

undergo further education and exams in English. Because Franceschi-Rodriguez

would essentially have to start over to acquire the certifications in respiratory therapy

that he had in Puerto Rico, and learn the English language to do so, he is effectively

uneducated.

Because Franceschi-Rodriguez proved that he exclusively performed general

labor since moving to Massachusetts and Delaware, coupled with his language

barrier and the inability to transfer his education, it is clear that Franceschi-

Rodriguez was unable to perform a job outside of general labor. Therefore,

Franceschi-Rodriguez sufficiently established he was an unskilled worker.

2. Franceschi-Rodriguez’s Injury is the Reason Why He Can No Longer Perform

General Labor.

It is apparent that Franceschi-Rodriguez’s physical restrictions to sedentary

work, which arose from the injury he sustained in the accident at Perdue, prevent

him from performing general labor. Prior to the injury, Franceschi-Rodriguez was

able to find employment in general labor like painting and factory work, but his

16
injury and sedentary restrictions have removed general labor as an option. His

inability to perform general labor now is directly caused by the restrictions imposed

because of his injury, not other factors like his language barrier.

This is the exact type of situation that the displaced worker doctrine is

intended to cover in that “a person who qualifies for displaced worker status is a

worker who was a physical laborer before his injury, cannot after his injury do any

physical labor, and is not educated enough to obtain employment where physical

labor is not required.”34

Because the record clearly reflects that Franceschi-Rodriguez’s sedentary

restrictions prevent him from performing general labor, Franceschi-Rodriguez met

this requirement and ultimately met his burden of proving he was prima facie

displaced.

B. The Board’s Decision that Franceschi-Rodriguez was not Prima Facie
Displaced is not Supported by Substantial Evidence.

In weighing the evidence Franceschi-Rodriguez presented at the hearing, the

Board acknowledged that Franceschi-Rodriguez: (1) was 58 years old, (2) had a

four-year degree achieved in Puerto Rico in Spanish, (3) had a ten year work history

in law enforcement in Puerto Rico, (4) was unable to speak English, (5) only

performed construction or factory work for Perdue, (6) has a host of skills beyond

34
Zdziech, 1988 WL 109338, at *4.
17
basic labor; and (7) required sedentary work because of his injury.35 The Board

placed the greatest weight on Franceschi-Rodriguez’s work history and education

from Puerto Rico. In doing so, however, the Board did not identify how Franceschi-

Rodriguez could transfer those skills to employment considering his work

restrictions.

These facts are similar to those in Sabo v. Pestex, Inc., where the Board found

that a claimant was not prima facie displaced because he had skills from acquiring a

Commercial Driver’s License (“CDL”) that would qualify him for employment.36

The court, however, concluded that the Board failed to “elaborate on which skills it

found were transferable and how they would lift Claimant out of the general laborer

category.”37 The court went further in stating that it was unclear how the skills the

claimant used to initially acquire a CDL would be transferable considering the

claimant could no longer drive for extended periods and could not pass the required

physical examination necessary to use a CDL.38

Likewise, the Board here does not identify what skills Franceschi-Rodriguez

possesses that afford him the opportunity to work in a job other than general labor.

Rather, the Board references Franceschi-Rodriguez’s degree and law enforcement

35
D.I. 6, R. of IAB, Tab 9 at *22.
36
2004 WL 2735457, at *6 (Del. Super. Ct. Oct. 28, 2004), reh’g granted, 2004 WL 2827902
(Del. Super. Ct. Dec. 7, 2004)(deciding the case should not be remanded to the Board), aff’d, 2006
WL 250505 (Del. 2006).
37
Id.
38
Id.
18
experience without explaining how this background translates to a “host of skills.”

This reasoning ignores the fact that Franceschi-Rodriguez’s degree and certification

cannot be transferred to employment in Delaware without further education and

testing in English. It is unclear how any skills Franceschi-Rodriguez used to acquire

his degree in Puerto Rico would transfer in Delaware. Further, Franceschi-Rodriguez

would seemingly not be a competitive applicant for any prospective job in law

enforcement in Delaware because of his work restrictions and language barrier.

Some of the Board’s statements seem to contradict its initial reasoning and

instead support prima facie displacement. The Board mentioned that Franceschi-

Rodriguez has only worked in general labor when discussing the difficulty he may

face in finding employment.39 It further noted that Franceschi-Rodriguez’s language

barrier, general labor background, and need for sedentary work “may well drain the

pool of potential employers.”40 This reasoning appears to show that Franceschi-

Rodriguez has met the definition of a displaced worker,41 especially coupled with

the Board’s finding that none of the jobs listed on the labor market survey were

suitable for Franceschi-Rodriguez, as later discussed. The Board instead concluded

39
D.I. 6, R. of IAB, Tab 9 at *22 (“While his inability to speak the national language . . . may
present some obstacles for employment, especially for someone who has only worked in
construction or as a factory laborer for Employer . . . .”).
40
Id. (“[A]nd the need for sedentary work may well drain the pool of potential employers even
further . . . .”).
41
See Yoder, 2025 WL 2207447, at *4 (“A displaced worker, ‘while not completely incapacitated
for work, is so handicapped by a compensable injury that he will no longer be employed regularly
in any well-known branch of the competitive labor market.’”).
19
that even with this information in mind, “as it relates to the instant matter, the Board

does not find [Franceschi-Rodriguez] a prima facie displaced worker.”42 This court

finds that the substantial evidence on the record—and as recognized by the Board in

its decision—was not supportive of the Board’s ultimate conclusion. Therefore, the

Board’s decision must be reversed.

C. Perdue Would Have Failed to Meet its Burden of Proving Franceschi-
Rodriguez had Employment Opportunities Within His Restrictions.

Had the Board found that Franceschi-Rodriguez met his burden of proof for

displacement, it would have shifted the burden to Perdue to prove that there were

employment opportunities within his restrictions. Although the Board did not find

Franceschi-Rodriguez to be displaced, it still considered the employment

opportunities Perdue presented in the labor market survey. The Board’s findings

demonstrate that Perdue would have failed to meet its burden.

In its discussion of the labor market survey, the Board found that none of the

jobs presented in it were suitable for Franceschi-Rodriguez. The Board

acknowledged Dr. Riley’s reliance on Dr. Gelman’s opinion that Franceschi-

Rodriguez could perform light duty work and her admission that she was unaware

of the extent of Franceschi-Rodriguez’s language barrier when she performed the

survey. Thus, because the Board rejected Dr. Gelman’s opinion, the Board only

42
D.I. 6, R. of IAB, Tab 9 at *22.
20
considered the two sedentary jobs on the survey. It concluded that Franceschi-

Rodriguez was not eligible for the position seeking a bilingual applicant and,

likewise, would not be a competitive applicant for the other position because of his

language barrier. The Board concluded that although it was unwilling to find that

Franceschi-Rodriguez was prima facie displaced, Perdue failed to demonstrate

Franceschi-Rodriguez’s earning capacity.

Further, Perdue’s argument that accommodations could be made for the

positions listed in the survey according to Dr. Riley are not enough to satisfy this

burden. Although Dr. Riley stated that voice recognition software or single-handed

keyboard accommodations could be made, Dr. Riley admitted in her testimony that

she had not observed any of these tools in use while visiting the employers included

in the survey. Thus, Perdue failed to meet its burden because:

A showing of physical ability to perform certain appropriate jobs and
general availability of such jobs is, in this Court’s opinion, an
insufficient showing of the availability of said jobs to a particular
claimant and that a showing of this latter factor is necessary to satisfy
the burden of proving that total disability has terminated.43

The accommodations that would be required for Franceschi-Rodriguez to be

employable for the jobs mentioned in the survey, assuming they are available and

43
Abex Corp. v. Brinkley, 252 A.2d 552, 553 (Del. Super. Ct. Apr. 3, 1969).
21
could be utilized, appear to make those jobs of the “specially created” type for which

the displaced worker doctrine seeks to avoid.44

The Board relied on substantial evidence, including Franceschi-Rodriguez’s

limited physical capabilities and language barrier, in its conclusions about his

ineligibility for the jobs listed. The Board properly considered Dr. Riley’s efforts but

acknowledged the flaws in the survey arising from the incorrect information she used

to compile the jobs. Therefore, the Board adequately concluded that Perdue failed to

prove Franceschi-Rodriguez’s earning capacity, which, in turn, showed that Perdue

would have failed to meet its burden had it shifted.

44
See generally Smith, 2026 WL 383832, at *3 (“At oral argument, I asked employer’s counsel
about the disabilities, and how they would affect employment. The answer was an employer could
allow breaks or help from another employer. For me this is exactly the type of ‘specially created’
job described in Ham v. Chrysler Corp.”).
22
CONCLUSION

For these reasons, the Board’s decision to terminate Franceschi-Rodriguez’s

total disability benefits based on its finding that he is not a displaced worker is,

therefore, REVERSED. Because it would be inequitable to remand this matter back

to the Board,45 this decision is without prejudice so Perdue may retain its right to file

a new petition for review with the Board if it so desires. 46

IT IS SO ORDERED.

45
Adams v. Shore Disposal, Inc., 720 A.2d 272, 273 (Del. 1998)(“It would be inequitable to
remand this matter for further proceedings on the basis of employment opportunities that are not
current. A proper application of the displaced worker doctrine can only be made by considering
the contemporaneous availability of employment.”).
46
See Yoder, 2025 WL 2207447, at *7.
23