Maclary v. James Malin Plumbing

IN THE SUPERIOR COURT OF DELAWARE

THOMAS MACLARY, )
)
Claimant-Below / Appellant, )
) C.A. No. N24A-07-002 DJB
v. )
)
JAMES MALIN PLUMBING, )
Employer-Below / Appellee. )

Submitted: May 27, 2025
Decided: August 25, 2025

MEMORANDUM OPINION

On Cross-Appeals from The Industrial Accident Board –
AFFIRMED IN PART, REMANDED IN PART

David C. Malatesta, Esquire, Shelsby & Leoni, Wilmington, Delaware, attorney
for Claimant-Below/Appellant

Nicholas E. Bittner, Esquire, Heckler & Frabizzio, Wilmington, Delaware,
attorney for Employer-Below/Appellee

BRENNAN, J.

1
This cross appeal challenges the Industrial Accident Board’s (hereinafter “the

Board”) decision finding many of Plaintiff Thomas Maclary’s (hereinafter

“Claimant”) injuries sustained in a work-related collision were not compensable.

Specifically, Claimant contends the Board’s finding related to the left elbow, lumbar

spine, and concussion were not supported by substantial evidence.1 Appellant, the

employer’s workers’ compensation carrier, filed a cross-appeal arguing the Board’s

decision was not supported by substantial evidence, given its Board rejection of

portions of an Employer’s expert testimony. The workers’ compensation carrier also

contests the Board’s finding of total disability.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Claimant was employed as a plumbing service technician with James Malin

Plumbing (hereinafter “Employer”) when he sustained injuries in a head-on collision

with another truck on September 9, 2021.2 The crash was tentatively accepted as

compensable and Employer’s workers’ compensation carrier (hereinafter “carrier”)

began paying total disability benefits and medical expenses related to injuries

Claimant sustained to his right foot.3 No formal agreement outlining compensation

was ever executed. 4

1
Thomas Maclary v. James Malin Plumbing; N24A-04-007-002 DJB, Superior
Court Civil Docket Item (“D.I.”) 1.
2
Claimant’s Opening Brief, D.I. 14, p. 3.
3
Id.
4
Id.
2
Over the next three years Claimant received extensive treatment for his right

foot injury and other conditions developed following the collision. Treatment of

Claimant’s right foot began at Christiana Care Emergency Department on the day of

the crash. Claimant’s big toe joint was dislocated, and he sustained a fractured

second metatarsal. Claimant did not report any headaches, numbness, weakness, or

chest pain at this initial medical visit.5

On September 13, 2021, Claimant went to First State Orthopaedics to address

what Claimant described as mild right foot pain.6 Later that month, on the 27th of

September, 2021, Claimant returned and was diagnosed with a contusion of the right

knee. 7

Claimant then treated with a chiropractor in November, 2021, at Pain and

Rehab Center, for headaches, chest pain, neck pain, mid back pain, low back pain,

right hip pain, right knee pain, right ankle pain, right foot paint, and bilateral lower

extremity pain.8 MRIs were performed as a result, which showed primarily

degenerative changes to the neck, lumbar, and right shoulder. 9 Also, in November,

2021, Claimant began treatment with Dr. Patil at Delaware Neurology Group, where

he described himself as dazed from the accident; the neurological examination

5
Appellant’s Answering Brief, D.I. 16, Ex. F, Dr. Piccioni’s Direct Examination.
6
Id.
7
Id.
8
Id.
9
Id.
3
appeared normal. 10 The next day, Claimant was seen at Delaware Orthopaedic

Specialists (hereinafter “DOS”) where he reported pain in his right toe, hip, knee,

and left ankle. Despite his pain levels, Claimant’s only diagnosis was with respect

to the injuries to his right foot. All other complaints were deemed superficial.11

On January 18, 2022, Claimant returned to DOS for a follow up on his right

foot injury. Claimant was instructed to schedule a follow-up appointment in six

weeks to discuss returning to full-duty work.12 On January 26, 2022, Claimant again

visited DOS complaining of right shoulder pain and weakness. While the exam

revealed some tenderness, he was cleared to return to light-duty work.13

Claimant did not seek further medical attention until the summer of 2022. On

July 14, 2022, Claimant first reported spinal issues to Dr. Eskander at DOS. As a

result of this complaint, Claimant underwent an additional spinal MRI which did not

reveal anything new.14 On August 19, 2022, a CT of Claimant’s chest appeared

normal despite Claimant’s complaints. 15 Claimant saw Dr. Eskander on August 25,

2022, described feeling worse, and identified pain in his left elbow for the first

10
Id.
11
Id.
12
Id.
13
D.I. 16, p. 7.
14
D.I. 16, p. 7-8.
15
D.I. 16, p. 8.
4
time. 16 On September 8, 2022, Claimant had a follow up appointment for his right

foot and Dr. Ward found he had reached maximum medical improvement.17

February 8, 2024, Claimant continued to report high pain levels in his neck,

mid and low back, arms and legs, right shoulder, and left elbow. Claimant was later

diagnosed with a lateral epicondylitis in the left elbow and received a numbing

injection in his right shoulder.18 On March 2, 2023, Claimant underwent an

arthroscopic surgery.19 Later that month, on March 30, 2023, Claimant received a

lumbar spine numbing injection.20 On June 7, 2023, Claimant received another

injection, this time to his left elbow.21 On September 7, 2023, Claimant underwent

a third set of MRIs, which revealed no differences.22

Claimant’s final appointment with Dr. Eskander occurred on November 1,

2023, where he reported a 6/10 pain level. 23 Despite his continued pain, he was

cleared to work sedentary duty on August 8, 2023. 24 Claimant continued treatment

for his neurological symptoms of dizziness, headaches, pain around the eyes,

restricted field of view, memory loss, flashes of light, loss of balance, and restricted

16
Id.
17
Id. at 9.
18
Id.
19
Id. at 10.
20
Id.
21
Id. at 11.
22
Id. at 10.
23
Id.
24
Id. at 11.
5
motion, in the Spring of 2023.25 On December 13, 2023, Dr. Bennett identified

ongoing headaches but no other significant neurological issues.26

The carrier’s doctor, Dr. Piccioni, examined Claimant on January 5, 2024, and

found no objective evidence of injury during his physical examination. 27 Dr. Patil,

however, issued Claimant a note on January 10, 2024, keeping him out of work until

June 21, 2024. 28

As his treatments continued, Claimant, after receiving total disability from his

employer, opted to terminate his benefits and instead receive all his payments

through the Personal Injury Protection (hereinafter “PIP”) carrier. 29 The PIP carrier

coincidentally happened to be the same carrier distributing the workers’

compensation benefits. 30

On September 5, 2023, when Claimant’s PIP benefits were about to exhaust,

he filed a Petition to Determine Compensation Due as to his PIP benefits with the

Board. 31 He requested acknowledgment of injuries to his right foot, left hip, right

knee, left knee, cervical spine, thoracic spine, lumbar spine, right shoulder, left

25
Id.
26
Id.
27
Id. at 12.
28
Id.
29
Id. at 14, 16.
30
Id.
31
Id.
6
elbow, and head. 32 The parties requested the Board determine what body parts or

injuries were causally related to Claimant’s work accident and to analyze the nature

and extent of those injuries.33 The Board was not initially asked to consider whether

an injury had resolved but did so in its opinion. 34

At a hearing on April 8, 2024, the Board heard testimony from five different

doctors, as well as Claimant himself. Claimant’s doctors testified that the injuries

to the head, spine, right shoulder, and left elbow were all causally related to the

collision.35 One doctor testified that Claimant suffered a concussion in the collision

and later developed post-concussive syndrome and instructed Claimant not to work

as a result of his injuries.36

Employer submitted conflicting testimony through Dr. Piccioni, who

challenged the causal link between all of Claimant’s injuries other than the right foot

injury, to the crash. Dr. Piccioni believes only the right foot is compensable because

that was the only injury reported in the emergency room on the date of the crash.37

Dr. Piccioni opined that any injury not reported within three days of the crash could

not be related. Regarding Claimant’s concussion, Employer’s evidence noted a 2021

32
Id. at 13.
33
See D.I. 14.
34
Id. at Ex. G. The parties stipulated the questions for the Board to determine that
did not include whether an injury had resolved.
35
See D.I. 16, Ex. B, C, and D, respectively.
36
D.I. 16, p. 14.
37
Id. at Ex. G, F.
7
record, prior to the crash, where Claimant reported headaches every other day for

months, and another record in 2022 where no issue with Claimant’s eyes or

neurological function was present. Dr. Piccioni interpreted that testimony to suggest

any concussion Claimant suffered has resolved. 38

The Board issued its written decision on June 21, 2024. 39 Like the parties, the

Board agreed Claimant dislocated his right big toe and fractured his right metatarsal

in the crash. The Board found for Claimant in that his right foot injury has not yet

resolved. 40 As to Claimant’s other injuries, specifically to his right shoulder,

cervical spine, head, right knee, left knee, left elbow, left hip, thoracic spine, and

lumbar spine, the Board found these were not as clearly related to the collision. The

Board broadly disagreed with Dr. Piccioni’s blanket statement that “[i]t is well-

known that injuries can develop over 48 to 72 hours, with pain, stiffness, those kinds

of things. So this is now four days into the injury. This is—as I’ve always testified,

this is when all injuries should be in, they should be accounted for.”41

38
Dr. Piccioni also noted discrepancies in the examinations, one being “Dr.
Andrisani – an orthopaedic surgeon – documenting negative impingement to the
right shoulder in early 2022, while Dr. Crain later performed surgery for
impingement that was allegedly there the entire time.” D.I. 16, Ex. F.
39
See Decision on Petition to Determine Compensation Due, D.I. 16, Ex. G. The
Board decided the issue of attorneys’ fees and medical witness fees, but only the
decisions related to compensability and total disability are relevant on appeal.
40
Id.
41
Id.
8
In rejecting Dr. Piccioni’s line of reasoning, the Board accepted Claimant’s

position that the neck and cervical spine pain are causally related to the crash and

remain unresolved. 42 The Board determined Claimant’s knee injuries and

subsequent treatment, despite being not as factually well-developed as many of his

other complaints, were related to the work accident; the treatment was also deemed

reasonable and necessary. 43 While the Board found injuries to Claimant’s right

shoulder were causally related to the work accident, it found no further treatment

necessary because that injury had resolved. Similarly, it found that Claimant’s

concussion and post-concussive condition were related to the accident but has

reached maximum medical improvement. The Board did not find the injuries to

Claimant’s left elbow, left hip, lumbar spine, or thoracic spine casually related to the

work accident.44 Finally, the Board decided Claimant remained totally disabled

following the exhaustion of his PIP benefits on September 10, 2023.45

On July 23, 2024, Claimant filed a limited appeal alleging the decisions

related to his lumbar spine injury, current concussion symptoms, and left elbow

42
D.I. 16, Ex. G, p. 28. “On more than one occasion, when Dr. Eskander examined
Claimant, he noted objective and subjective bases to confirm his diagnosis of
cervical pain with radiculopathy. Dr. Eskander causally related that diagnosis to
Claimant’s September 9, 2021, work accident.”
43
Id.
44
Id.
45
D.I. 14, Ex. A, p. 31.
9
injury were not based on substantial evidence.46 The Opening Brief was filed on

November 6, 2024.47 Employer filed “Answering Brief on Appeal and Cross-

Appellant’s Opening Brief on Cross-Appeal” on November 25, 2024. 48 The cross-

appeal focused on the Board’s decisions regarding Claimant’s neck, shoulder, and

right foot. Employer additionally challenges the Board’s finding that Claimant

remained totally disabled upon the exhaustion of his PIP benefits. 49 Claimant filed

a timely Reply to Employer’s cross-appeal on December 23, 2024. 50 Employer

replied to Claimant on January 8, 2025.51 Both parties were heard at oral argument

on May 27, 2025. 52 This is the Court’s Opinion.

II. STANDARD OF REVIEW

Legal issues decided by the Board are reviewed de novo.53 When reviewing

factual decisions of the Board, the Court shall determine whether the agency’s

decision “was supported by substantial evidence on the record before the agency.”54

Substantial evidence is “such relevant evidence as a reasonable mind might accept

46
D.I. 1. Employer also filed a notice of cross-appeal on July 24, 2024.
47
D.I. 14.
48
D.I. 16.
49
D.I. 2.
50
D.I. 19.
51
D.I. 20.
52
D.I. 24 and 25. Due to various scheduling issues, oral argument was ultimately
rescheduled to this date.
53
29 Del. C. §10142(c).
54
Id. at §10142(d).
10
as adequate to support a conclusion.” 55 It is “more than a scintilla but less than a

preponderance of the evidence.”56 The Board’s findings of fact are given great

deference. 57 “Only when there is no satisfactory proof to support a factual finding

of the Board may the Superior Court [] overturn that finding.”58 The Court must

“consider the law and decide whether the board properly applied the facts as it found

them to be.” 59

“[T]he Superior Court may only overturn a factual finding of the Board when

there is no satisfactory proof in favor of such a determination.” 60 “Even if expert

testimony shows nothing more than a ‘mere possibility,’ the Board’s award may be

upheld as long as it is supported by ‘other credible evidence.’” 61 The Board “has

expressly been entrusted with the power to find the facts,” therefore “its fact finding

must be affirmed if supported by any evidence, even if the reviewing court thinks

the evidence points the other way.”62

55
Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009) (quoting
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)).
56
Powell v. OTAC, Inc., 223 A.3d 864,871 (Del. 2019) (quoting Noel-Lizkiewicz v.
La-Z-Boy, 68 A.3d 188, 191 (Del. 2013)).
57
Greenville Country Club v. Greenville Country Club, 150 A.3d 1194, 1199 (Del.
2016) (quoting Whitney v. Bearing Const., Inc. 93 A.3d 655 (Table) (Del. 2014)).
58
La-Z-Boy, 68 A.3d at 191.
59
One River Place, LLC v. New Castle County Dept. of Finance, 2007 WL 1296870,
at *1 (Del. Super. Apr. 27, 2007).
60
Wyatt v. Rescare Home Care, 81 A.3d 1253, 1259 (citing Steppi v. Conti Elec.,
Inc., 2010 WL 718012 (Mar. 16, 2020)).
61
Wesley v. State, 2021 WL 3783634, at *5 (Del. Super. Aug. 31, 2021).
62
Wyatt, 81 A.3d at 1259 (citing Steppi, 2010 WL 718012).
11
[I]t is within the Board’s exclusive domain to weigh the evidence,
determine the credibility of witnesses, and resolve any conflicts in the
testimony. And even when the Board hears testimony from a
claimant’s treating physician, “[t]he weight to be given to the expert
testimony of a treating physician…is for the Board to determine, as the
trier of fact.”63

III. ANALYSIS

Claimant and Employer both challenge the Board’s evidentiary basis for

reaching its decision. Claimant alleges the Board lacked sufficient evidence to

exclude the lumbar spine and left elbow injuries from compensation and submits the

Board incorrectly determined that his concussion symptoms have resolved.

Employer appeals the decision on different grounds. On cross-appeal, Employer

argues the Board applied the wrong legal standard on recurrence of total disability,

awarded a recurrence and ongoing disability without legal or factual support, and

acted arbitrarily and capriciously in finding the neck and right shoulder injuries

compensable while denying resolution of the right foot injury.64

At argument the parties laid out the issues related to Claimant’s right foot,

spine (including neck), right shoulder, left elbow, and head. 65 The parties also

addressed Claimant’s status as totally disabled. In reviewing this matter, the Court

considered the parties’ respective positions, the Board’s written decision, and the

63
Wesley, 2021 WL 3783634, at *6 (quoting Clements v. Diamond State Port Corp.,
831 A.2d 870, 877 (Del. 2003)).
64
D.I. 2.
65
D.I. 25, Hearing Trans., pp. 6-9.
12
entire record in this case. For the reasons detailed below, the Board’s decisions with

respect to Claimant’s ongoing concussive symptoms, left elbow injury, neck, and

right shoulder were based upon substantial evidence. However, the Board’s basis

for its decisions related to the lumbar spine, right foot, and finding of total disability

were not so supported.

LUMBAR SPINE INJURY

Claimant argues the Board’s finding that the lumbar spine injury unrelated to

the work accident conflicts with its decision to compensate Claimant for the cervical

spine injury, on the basis that “there is no discernable difference between the

diagnosis and treatment for both the cervical spine and lumbar spine injuries as noted

by the Board.”66 The Court agrees. The evidence before the Board was Dr.

Eskander’s testimony. He told the Board Claimant presented muscle spasms from

the cervical to lumbar spine on November 3, 2021, just a few weeks after the crash.67

When he evaluated Claimant on July 14, 2022, he reviewed MRI findings that

showed pathology in Claimant’s cervical spine and compression and neural

foraminal narrowing in the lumbar spine.68 Dr. Eskander diagnosed Claimant with

66
D.I. 14.
67
D.I. 14, Ex. B, pp. 8-10. The same exam revealed a greater than thirty-five
percent reduction in range of motion in the cervical and lumbar spine.
68
D.I. 16, Ex. B, pp. 12-13. At the visit with Dr. Eskander Claimant also reported
“back pain that radiates to both legs, buttocks, and straight in the bottoms of both
feet.”
13
“cervical pain with radiculopathy and lumbar pain with radiculopathy” and ordered

an updated cervical and lumbar MRI and continued physical therapy. 69

Dr. Eskander outlined similar treatment plans for both the cervical and lumbar

spinal injuries:

Q: Okay. And was the purpose of that visit to follow up and discuss
with him any updated review of films?

A: …[H]e has reduced sensation in the left C6 and C7
distributions…So the treatment plan at this point was essentially,
you know, for the cervical spine, to continue with the therapy,
consider an injection, and if that didn’t work, we would have a
surgery to address the neurological issue. We want – we wanted
to continue with the therapy to the lumbar spine... 70
…

Q: …Mr. Maclary had a steroid injection on February 15th of 2023;
is that correct?

A: Yes.
…

Q: …[T]he records indicate a bilateral L4-5 transforaminal steroid
injection on March 30th, 2023?

A: Yes.

Q: Again, is that to address injuries that you believe are related to
his September 9, 2021 auto accident?

A: Exactly. 71

69
D.I. 16, Ex. B, pp. 12-13.
70
Id. at pp. 13-15.
71
Id. at pp. 17-18.
14
The Board considered Dr. Eskander’s testimony when it compensated

Claimant for only the cervical spine injury: “[o]n more than one occasion, when Dr.

Eskander examined Claimant, he noted objective and subjective bases to confirm his

diagnosis of cervical pain with radiculopathy. Dr. Eskander causally related that

diagnosis to Claimant’s September 9, 2021, work accident.” 72 Despite accepting Dr.

Eskander’s testimony regarding Claimant’s cervical spine, the Board later found the

lumbar injury was not causally related to the accident, deciding “Claimant failed to

meet his burden of proof on these issues and the Board does not relate them to the

work accident on September 9, 2021.”73

The board’s decision is contradictory. Dr. Eskander’s testimony, which the

Board relied upon in compensating the cervical spine injury, also opined the lumbar

injury is related to the accident. The record shows two spinal injuries diagnosed and

treated in similar manners and on the same timeline. The Board’s decision does not

articulate the evidentiary basis for having relied on Dr. Eskander’s testimony

describing similarly situated spinal injuries to compensate one injury, but yet to not

supporting the other. “While the Court ‘will not intrude on [the Board’s] role as trier

of fact by disturbing [the Board’s] credibility determinations or factual findings,’” it

is the Court’s responsibility to ensure the Board’s findings are “supported by

72
D.I. 14, Ex. A.
73
Id.
15
substantial evidence which is ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” 74

The evidentiary record provided does not reasonably support the Board’s

decision to treat the cervical and lumbar spinal injuries differently. The record is

devoid evidence of differences between the two spinal injuries such that only the

cervical injury is compensable, but not the lumbar. Without weighing the evidence

or expert credibility, the Board’s decision related to the lumbar injury is inconsistent.

Thus, the Board’s decision with respect to the lumbar spine should be reversed and

remanded to the Board to determine whether that Claimant is compensated for the

injuries and treatment of the cervical and lumbar spine.

THE BOARD’S DECISIONS RELATED TO CLAIMANT’S RESOLUTION OF
CONCUSSION SYMPTOMS AND THE LEFT ELBOW INJURY WERE BASED ON
SUBSTANTIAL EVIDENCE

Claimant’s appeal challenges the Board’s decision denying compensation for

continued concussion symptoms and his left elbow injury. Claimant contends

neither finding was based on substantial evidence, because Dr. Patil’s testimony

showed Claimant’s need for ongoing medication to manage headaches, and the

74
Thompkins v. Reynolds Transportation, 2021 WL 99729, at *3 (Del. Super. Jan.
11, 2021) (quoting Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del.
1998)).
16
testimonies of Dr. Crain and Claimant showed the elbow injury relates to the work

collision.75

While Claimant may disagree with the Board’s analysis, it is not appropriate

for the Court to review the accuracy of the Board’s decision. The Court’s role is

merely to determine whether the Board’s finding that Claimant’s concussion has

resolved is based on substantial evidence. 76 The Board’s opinion explained its

decision to deny compensation for both continued concussion symptoms and

Claimant’s left elbow injury required endorsing one doctor’s opinion over the

other.77 The Board is authorized to do so. 78 Substantial evidence supports the

Board’s findings related to the ongoing concussion treatment and left elbow injury

for the reasons that follow.

A. RESOLUTION OF CONCUSSION SYMPTOMS

Claimant alleges the Board did not base its decision on substantial evidence when

finding Claimant’s concussive symptoms had resolved, because:

the Board failed to acknowledge that Claimant was still on medication
to address his headaches, and the treatment that the Board determined
was reasonable and necessary included the dispensing and monitoring
of that medication. As Dr. Patil testified, Mr. Maclary continued to
have headaches as of January 2024 that were being controlled
controlled [sic] with a prescription. 79

75
D.I. 14.
76
Wesley v. State, 2021 WL 3783634, at *5 (Del. Super. Aug. 23, 2021).
77
D.I. 14, Ex. A, pp. 29, 30.
78
See generally Wesley, 2021 WL 3783634.
79
D.I. 14.
17
The Board was not bound to accept the opinion of Dr. Patil that Claimant

suffered from crash-related concussion treatment due to his orders of ongoing

medication treatment. 80 Dr. Patil was not the only witness testifying to Claimant’s

continued concussion treatment. Dr. Bennett’s testimony provided a detailed

evaluation of Claimant’s concussion recovery:

Q: [B]ased upon the review of the records would it be fair to use Dr.
Voltz’s normal examination of August 16, 2022, as the cutoff to
state that by that date, at the latest, whatever concussion he had
sustained had resolved?

A: I think that certainly you’re giving him almost a year’s worth.
And by that time he’s fully recovered…
…
Q: To the extent that the Claimant continues to endorse subjective
symptoms, can you support or validate those in any objective
way?

A: No. We find, and I think studies have shown in the literature that
those individuals who continue to have complaints ongoing, this
would be over two years from the date of injury, we typically
look for other comorbid issues, other medical problems…But
clearly the effects of a concussion would have been long since
resolved.

Q: Even if you were to take the Claimant at face value about
ongoing symptoms, does that, by itself, establish a causation link
back to the accident?

A: No. You look for other things and other issues, even medication
side effects. The fact that he may be taking Topamax, we call
that – in and of itself I would be concerned about that medication
having adverse effects in terms of any subjective symptoms.

80
Id. at Ex. D, pp. 8,9.
18
Q: Given your conclusion of resolution by August 16, 2022 at the
latest, does that mean any treatment for the concussion after that
date would not be considered reasonable, necessary, or causally
related to the work accident?

A: I would certainly support that, yes.81

The Board’s opinion adopted Dr. Bennett’s testimony instead of Dr. Patil’s in

finding “Claimant’s concussion, or a post-concussive condition are related to the

work accident and have reached maximum medical improvement.” 82 Endorsing one

expert over another does not mean the decision lacks substantial evidence. The

Board’s decision quoted a portion of Dr. Bennett’s testimony, “[Claimant] had long

since fully recovered and had no symptoms or signs that suggest anything to indicate

a persistent traumatic brain injury [pro]tracted post-concussion syndrome or

anything of that nature.” 83

Dr. Bennett’s testimony supported the Board’s finding. His opinion explained

that: (1) concussion symptoms persisting longer than two years after an accident

should be investigated as a comorbidity or the result of a different injury; (2)

Claimant’s headaches are subjective complaints proving difficult to link back to the

accident; (3) Claimant’s medication could be causing the headaches; and finally (4)

81
Id. at Ex. E, pp. 29-32.
82
Id. at Ex. A, p. 29.
83
D.I. 14, Ex. E, p. 27.
19
Claimant’s concussion had fully resolved despite reporting ongoing headaches.84

All of which support finding Claimants concussion symptoms have resolved.

Again, it is inappropriate for the Court to consider the weight or credibility of

Dr. Bennett’s testimony in comparison to Dr. Patil’s. The inquiry before the Court

is merely whether the Board adequately based its decision upon substantial evidence.

Dr. Bennett’s testimony meets the low threshold of “relevant evidence as a

reasonable mind might accept as adequate to support a conclusion” to support the

Board’s finding that the concussive symptoms had resolved. 85 Therefore, the

Board’s decision finding Claimant’s concussion symptoms had resolved is affirmed.

B. LEFT ELBOW

Claimant’s final argument on appeal challenges the Board’s finding that the

left elbow injuries are not causally related to the work accident.86 This decision

relied on Dr. Piccioni’s review of Dr. Crain’s report after examining Claimant. Dr.

Crain testified Claimant “developed lateral epicondylitis of the left elbow,”87 which

Dr. Piccioni interpreted to mean the injury “usually comes from repetitive palm-

down activities … But it cannot be related to this industrial accident in any way,

84
See Id.
85
Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009) (quoting
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)).
86
Id. at Ex. A, p. 30.
87
Id. at Ex. C, p. 14.
20
shape, or form, in my opinion because there’s no causative factor.” 88 This testimony

was persuasive to the Board.

Claimant asserts the Board inappropriately adopted the above portion of Dr.

Piccioni’s testimony while rejecting other aspects of his opinion.89 However, the

Board is entitled to “accept or reject an expert’s testimony in whole or in part.”90

While the Board rejected Dr. Piccioni’s opinion “that if a claimant has not made a

complaint to a doctor within four days of the work accident, all complaints made

later will be rejected as not causally related to the work accident because of

timing,”91 the Board did not conclude, as Claimant suggests, that all injuries reported

after the emergency room visit necessarily relate back to the collision. The Board

instead explained, “a causality analysis based solely on how many days have passed

since the accident occurred before the claimant reported pain does not provide this

Board with the needed medical information.” 92

The Board’s causality analysis, which considered the one-year gap between

the crash and left elbow symptoms, relied upon Dr. Crain’s report that documented

full range of motion in the left elbow after the collision,93 and Dr. Crain’s testimony

88
Id. at Ex. F, pp. 53-54.
89
See Id.
90
Arrants v. Home Depot, 65 A.3d 610, 605 (Del. 2013) (citing Person-Gaines, 981
A.2d at 1161.
91
D.I. 14, Ex. A, p. 28.
92
Id.
93
Id. at Ex. F, pp. 52-53.
21
that “[Claimant] developed lateral epicondylitis of the elbow.” 94 Although Dr.

Crain testified the injury was related to the September 9, 2021, crash, the Board was

not required to agree with Dr. Crain. Addressing the weight of testimony is

inappropriate; appellate review may only consider whether the evidence adequately

supported the Board’s decision. The Court is satisfied that substantial evidence

supports the Board’s decision.95

Further, the Board’s decision is so supported notwithstanding its rejection of

Dr. Piccioni’s opinion that injuries related to the crash should be related within days

of the crash. The alleged left elbow injury was reported for the first time one year

post the crash. There is no conflict in the Board’s rejection of Dr. Piccioni’s “three

day rule” and this finding, because of the time difference. The Board’s decision

was based on evidence beyond the delayed onset of left elbow symptoms. Thus, the

Board’s decision regarding Claimant’s left elbow injury is affirmed.

94
Id. at Ex. C, p. 14 (emphasis added).
95
Person-Gaines, 981 A.2d at 1161 (quoting Olney, 425 A.2d at 614).
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THE BOARD DID NOT ACT ARBITRARILY OR CAPRICIOUSLY IN REJECTING ONLY
A PORTION OF DR. PICCIONI’S TESTIMONY

On cross-appeal, Employer first contends the Board’s decision lacks

substantial evidence “to support the inclusion of the neck and right shoulder as

compensable injuries and to find an ongoing right foot/right great toe injury.”96

Employer specifically takes issue with the decision’s sentence, “[w]hen it comes to

injuries and the pain they can produce, the human body simply does not follow a

rigid and pre-determined timeline such as the one placed on Claimant by Dr.

Piccioni.” 97 Employer alleges the Board “mischaracterized Dr. Piccioni’s

testimony, doing so in a manner that is arbitrary and capricious…as it took a section

of Dr. Piccioni’s testimony and used it as a launching point to attack his

testimony.”98

Contrary to this claim, the Board did not “single out one isolated facet of Dr.

Piccioni’s testimony” ignoring the rest, nor did the Board attack Dr. Piccioni’s

testimony in its entirety.99 The Board rejected Dr. Piccioni’s overarching notion that

all injuries related to the collision should present themselves within a few days; the

Board did not discredit Dr. Piccioni outright. When “presented with differing

medical testimony [the Board is] free to reject, in full or in part, the testimony of one

96
D.I. 16, p. 42.
97
D.I. 14, Ex. A, p. 27.
98
D.I. 16, pp. 43-44.
99
Id. at p. 47.
23
physician based on its experience in gauging the testimony of witnesses who gave

conflicting testimony.” 100 Such an evaluation does not create evidence based on

“institutional experience.”101

Employer appeals the Board’s decisions related to Claimant’s neck, right

shoulder, and ongoing right toe injuries simply because the Board rejected Dr.

Piccioni’s opinion in reaching those outcomes. Again, the Board was not obligated

to adopt all of Dr. Piccioni’s testimony.102 It is not this Court’s place to interfere

with the Board’s credibility determination of Dr. Piccioni. The testimonies of

Doctors Eskander, Patil, Crain, as well as the testimony of Claimant himself,

provides substantial evidence for the Board’s determination to compensate for the

injuries to Claimant’s neck and right shoulder. The testimonies presented

sufficiently support the Board’s respective decisions for the reasons that follow.

However, with respect to the ongoing nature of the injuries to Claimant’s right toe,

there was insufficient evidence to support the Board’s conclusion.

A. NECK

100
Id. at 1215.
101
Id. at 1216 (“[w]hatever ‘institutional experience’ or administrative expertise the
Board possesses may be used as a tool for evaluating evidence but not as a source
for creating evidence”).
102
Id. (“[a]ll that is required in rejecting the testimony of a medical witness is that
the Board ‘provide specific relevant reasons for doing so.’”).
24
Dr. Eskander and Dr. Patil both testified with a reasonable degree of medical

probability that Claimant’s neck injury relates to the September 9, 2021, crash. The

Board’s decision accepted those testimonies in finding the neck and cervical pain

are causally related to Claimant’s work accident and remain unresolved.103 Dr.

Eskander’s testimony explicitly states “[Claimant described] pain in the neck that

radiates to both shoulders and arms…he denies any prior neck pain,”104 leading to

discovery of Claimant’s cervical injuries, which Dr. Eskander believes is causally

related to the September 9, 2021, crash. 105 Dr. Patil similarly noted, in November

of 2021, “[Claimant] had tenderness and spasms of the cervical, that is the neck, and

the lower back with approximately 35 percent loss of ranges of motion.”106 The two

expert opinions documenting neck pain, for the first time, two months after the crash

create more than a mere possibility that Claimant’s neck injuries are related to the

collision. Thus, the Board had adequate evidence to compensate Claimant his neck

injury.

B. RIGHT SHOULDER

Dr. Bennett, Employer’s own expert, testified that both the right shoulder

injury and right foot injury relate to the work collision:

103
D.I. 14, Ex. A, p. 28.
104
Id. at Ex. B, pp. 12-13.
105
Id. at pp. 23.
106
Id. at Ex. D, p. 10.
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Q: Okay. But in your opinion he sustained injuries at least to
his right foot and right shoulder?

A: That’s what the records indicate and that’s what his history
supports. 107

In addition to Dr. Bennett, the Board was presented with evidence of Claimant’s

right shoulder pain, which was reported to two different doctors dating back to

November of 2021.108 Dr. Crain, who began treating Claimant in December of 2022,

relied upon prior reports and noted “[Claimant] had injured his rotator cuff. He had

a partial tear of the rotator cuff and developed a posttraumatic bursitis and

posttraumatic impingement from the automobile accident.”109 The testimony and

record evidence meets the low threshold of substantial evidence supporting the

Board’s finding that Claimant’s right shoulder injury relates to the September of

2021 crash.

C. RIGHT FOOT

The existence of Claimant’s right foot injury is generally undisputed.110

Nonetheless, Employer challenges the finding that the injury is unresolved. The

Court agrees with Employer that Claimant’s experts, despite all recognizing the

severity of his right foot injury, collectively do not mention ongoing treatment of

107
Id. at Ex. E, p. 48-50.
108
Id. at Ex. C, p. 8.
109
Id. at p. 14.
110
Id. at Ex. A, p. 26.
26
Claimant’s right foot. Although Claimant himself described daily pain in his foot,

ongoing issues planting his foot, and continued difficulty walking or utilizing stairs,

Claimant’s testimony alone cannot satisfy his burden of proof. 111 Without expert

testimony identifying the need for ongoing treatment of Claimant’s right foot, the

Board did not have adequate evidence to find the right foot injury was unresolved.

Therefore, the Court cannot sustain the Board’s decision about the resolution of

Claimant’s right foot injury without a sufficient evidentiary record. This matter is

remanded for the Board to articulate its findings on the ongoing nature of this injury

from the record, if such evidence exists. If it does not, the Boead is to adjust its

decision accordingly.

RECURRENCE OF TOTAL DISABILITY

The Board determined Claimant had a recurrence of disability on September 10,

2023, when his PIP benefits expired, and agreed with Claimant’s experts that he

remains totally disabled.112 As a result, the Board found Employer’s workers’

compensation carrier now responsible for Claimant’s ongoing disability award, as

Claimant remains totally disabled even after his PIP benefits expired. Employer

111
Id. at Ex. G, pp. 29-30; see also Wyrick v. Leaseway Auto Carriers, 2002 WL
537591, at *4 (Del. Super. Apr. 10, 2002) (“[w]hile the Board obviously found his
testimony credible, this Court finds that lay testimony cannot establish the
reasonableness and necessity of the treatment rendered”).
112
D.I. 14, Ex. A, p. 31.
27
challenges this decision and accuses the Board of applying the wrong legal standard

in determining recurrence of disability.113

Beginning with Claimant’s status as totally disabled, “if a claimant is instructed

by his treating physician that he or she is not to perform any work, the claimant will

be deemed to be totally disabled during the period of the doctor’s order.”114 The

Board “accept[ed] the opinion of Claimant’s doctors that he remains totally

disabled.”115 This finding is consistent with testimony from nearly all of Claimant’s

treating physicians, who collectively instructed Claimant to stop working as a

plumber so that he could properly recover from his injuries:

Q: Okay. And fair to say that amongst yourself, Dr. Kader,
and some of the other medical providers, throughout the
records, at no point has Mr. Maclary been released to
return to work?

A: I’m unaware of any significant return-to-work period for
Thomas at this point.116

To the extent Claimant was cleared to return to work, he was only permitted to

resume sedentary duty. Nothing in the record indicates Claimant regained his same

position before the crash. To the contrary, the evidence shows Claimant was

113
D.I. 16.
114
Delhaize America, Inc. v. Baker, 880 A2.d 1047 (Table) (Del. 2005) (citing
Gillard-Belfast v. Wendy’s, Inc., 754 A.2d 251 (Del. 2000)).
115
D.I. 14, Ex. A, p. 31.
116
Id. at Ex. B, p. 25. Dr. Patil’s testimony also states Claimant is not gainfully
employable. D.I. 14, Ex. D, p. 24.
28
repeatedly instructed not to resume working, which supports the Board’s finding of

total disability. Its finding on this fact is upheld.

Whether the Board appropriately found “that the expiration of applied PIP

benefits in this case operates as a change in condition sufficient to qualify as a

recurrence of total disability,” 117 is less straightforward. “The term ‘recurrence’ is

used in common parlance to describe the return of a physical impairment…As

applied in most workmen’s compensation cases, however, it is limited to the return

of an impairment without the intervention of a new or independent accident.” 118 The

current framework of Delaware workers’ compensation law does not interpret the

exhaust of PIP benefits as a change in condition for determining recurrence of total

disability. When PIP coverage and workers’ compensation coverage overlap, a

claimant has the right to exhaust both avenues for recovery.119

However, PIP exhaustion is not binding on a workers’ compensation carrier,

who may seek a medical examination of claimant for insight as to what injuries

persist upon exhaustion of PIP. 120 Those findings may be presented to the Board.

The workers’ compensation carrier is not automatically responsible for a claimant’s

recovery upon exhausting the PIP benefits. The workers’ compensation carrier

117
Id. at Ex. A, p. 31.
118
Disabatino & Sons, Inc. v. Facciolo, 306 A.2d 716, 719 (Del. 1973).
119
Cicchini v. State, 640 A.2d 650, 653 (Del. Super. Ct. 1993).
120
19 Del. C. §2343.
29
becomes responsible if the Board, upon reviewing the treating physician’s

evaluation, finds the claimant remains totally disabled. That is precisely what

occurred here.

Both Dr. Eskander and Dr. Patil testified to Claimant’s continued inability to

work as a plumber, even after the PIP benefits expired. To the contrary, Dr. Crain

testified Claimant was cleared to work sedentary duty on August 8, 2023. 121 The

Board is again “free to choose between conflicting medical expert opinions.”122

However, the Board’s decision related to total disability goes beyond merely

adopting the opinion of one expert over another. Here the Board inaccurately

concluded the exhaustion of PIP itself serves as a recurrence of total disability. This

is a misstatement of current Delaware workers’ compensation law.

However, that mistake is inconsequential because substantial evidence

supports the Board’s finding that Claimant remains totally disabled. The Board

accepted the opinion of Claimant’s doctors in finding Claimant’s “total disability

status remains in effect”123 after the PIP benefits exhausted, which obligates

Employer to compensate Claimant for the agreed upon rate of $797.96 per week.124

As such, the Court affirms the Board’s decision requiring Employer compensate

121
D.I. 16, pp. 11, Ex. F.
122
Glanden v. Land Prep. Inc., 918 A.2s 1098, 1102 (Del. 2007) (quoting Disabatino
Bros. Inc., v. Wortman, 453 A.2d 102, 106 (Del. 1982).
123
D.I. 14, Ex. A, p. 31.
124
Id. at p. 32.
30
Claimant’s total disability, while noting that the Board’s reasoning was, in part,

flawed.

IV. CONCLUSION

For the foregoing reasons this Court AFFIRMS the Board’s decision in part and

REVERSES and REMANDS in part.

____________________________
Danielle J. Brennan, Judge

cc: All parties LexisFile&Serve

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