Smith v. Allen Foods

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

Leon Smith, : C.A. No. S25A-08-002 CAK
:
Claimant Below- :
Appellant, :
:
v. :
:
Allen Foods, :
:
Employer Below- :
Appellee. :

MEMORANDUM OPINION AND ORDER

Submitted: February 3, 2026
Decided: February 11, 2026

Walt F. Schmittinger, Esquire, and Liam N. Gallagher, Esquire, Schmittinger and
Rodriguez, P.A., 414 South State Street, P.O. Box 497, Dover, Delaware 19903,
Counsel for Appellant.

Vance E. Davis, Jr., Esquire, Elzufon, Austin & Mondell, P.A., 300 Delaware
Avenue, 17th Floor, P.O. Box 1630, Wilmington, Delaware 19899-1630, Counsel or
Appellee.

KARSNITZ, J.
Our worker’s compensation law has a central principle called the displaced

worker doctrine. It is simple in articulation, but much more difficult in application.

A displaced worker is one who “…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 and will require a specially – created job if he is to be

steadily employed.”1 A displaced worker may be totally disabled economically

despite being only partially disabled medically,2 and in applying the doctrine one

must necessarily address if jobs are realistically within reach of the disabled person.3

The displaced worker doctrine is central to a determination of the issue of the

right to receive total disability benefits pursuant to Delaware Workers’

Compensation law. A worker totally disabled because of a work-related injury is

generally entitled to receive two thirds of his or her average weekly wage up to a

statutory limit and has no time limit on the receipt of disability benefits. By contrast,

our law governing partial disability, when a worker can work in some capacity but

still has some wage loss, limits partial disability payments to a total of 300 weeks.

In a typical case of a significant work injury, the worker will be totally

disabled for some period of time, and the employer will pay the worker total

1
Ham v. Chrysler Corp., 231 A.2d 258, 261 (Del. 1967).
2
Governor Bacon Health Center v. Noll, 315 A.2d 601 (Del. Super. 1974).
3
Abex Corp. v. Brinkley 252 A.2d 552 (Del. Super. 1969).
2
disability payments. As time progresses, and after appropriate medical treatment,

the employee often reaches a medical plateau. Those administering the claim will

ask doctors if the injured worker can work and if so, in what capacity. Litigation

often ensues over rights to continuing total disability, partial disability, or no

disability. This case is an example of litigation of this sort.

Here the sole issue is whether Claimant-Appellant, Leon Smith, is a displaced

worker. If he is, he remains entitled to (unlimited in time) total disability payments.

If not, he is entitled to partial disability, which in his case equals the total disability

amount. The rub lies in the temporal limitation, as well as other potential effects of

the Industrial Accident Board’s (the “Board’s”) finding that Claimant is not a prima

facie displaced worker.

The displaced worker analysis requires a review of an injured employers

“…physical impairment, coupled with other factors such as the injured employee’s

mental capacity, education, training or age …”4 Our Supreme Court, in Ham v.

Chrysler Corp.,5 described the relevant considerations as follows:

… not only the medical and physical facts, but also
such factors as the employee’s age, education, general
background, occupational and general experience,
emotional stability, the nature of the work performable
under the physical impairment, and the availability of

4
Franklin Fabricators v. Irwin, 306 A.2d 734, 737 (Del. 1973).
5
2321 A.2d at 261.
3
such work. Claimant has the burden to show he is prima
facie displaced.

If the Board determines a Claimant is prima facie displaced, the burden of

proof is then on the employer to establish there is work available within the

Claimant’s medical restrictions.6

Having set forth the framework for the worker’s compensation disability

analysis, I turn to this case. Leon Smith sustained a compensable workplace injury

on October 10, 2024. At the time, Allen Foods employed him as a forklift driver and

had for 10 years. Mr. Smith operated a forklift which overturned in a forward

direction. The forklift had no seatbelt, and in the accident, Mr. Smith fell forward

into the forklift cage. He suffered a concussion, and post-concussion symptoms,

including effects to his focus, memory and mood. He also suffered neck pain

radiating to his upper extremities, and back pain radiating to his lower extremities.

Mr. Smith received appropriate treatment, including emergency care and

follow up care with his primary care provider. He also had orthopedic and neurology

consultations. In November 2024, Mr. Smith began treatment with Dr.

Sampathkumar, who is board certified in brain surgery as well as physical medicine

and rehabilitation. Dr. Sampathkumar maintained Mr. Smith on “no work” status

6
Irwin, supra, at 737.
4
until April 4, 2025, when he released him to part-time (4 hour/day, 5 day per week)

sedentary work. He included requirements that Mr. Smith be allowed increased time

to complete tasks and rest breaks as needed. Dr. Sampathkumar did not release Mr.

Smith to his old job or anything similar. Dr. Sampathkumar continues to treat Mr.

Smith to manage his symptoms.

Dr. Sampathkumar also referred Mr. Smith to Dr. Natasha Brown for

neuropsychologic treating. Dr. Brown conducted a battery of tests over half a day.

Dr. Brown noted Mr. Smith had difficulty with some of the tests, as he was unable

to finish portions in the allotted time. She confirmed many of Dr. Sampathkumar’s

findings including neck and back pain, balance and mobility issues, poor memory,

and difficulty with concentration, and depression. Dr. Brown assessed the problems

as part of his post-concussion symptoms. She recommended cognitive behavior

therapy.

Dr. Eric Schwartz, a board-certified orthopedic surgeon, examined Mr. Smith

at the request of the employer. He opined that Mr. Smith could only perform

sedentary work. He limited his opinion to orthopedic issues.

The medical opinions offered were relatively consistent and non-

controversial. The Board found Dr. Sampathkumar credible and adopted his views.

5
PROCEDURAL POSTURE

The Board by decision dated August 6, 2025, addressed the employer’s

petition to terminate Mr. Smith’s total disability benefits. It found that he was no

longer entitled to total disability lost wages, as he had been cleared for part-time

sedentary work. The Board found he was entitled to ongoing temporary partial

disability benefits. It also determined he was not a displaced worker.

Claimant appealed the decision. Briefing is complete and I held oral argument

on February 3, 2026.

STANDARD OF REVIEW

I am tasked with determining if substantial evidence exists to support the

Board’s findings, and if they are free from legal error. The appeal is on the record

made before the Board.7 I must give deference to the Board’s findings of fact.8

ANALYSIS

The only issue before me is Mr. Smith’s claim the Board erred in determining

he was not a prima facia displaced worker. The Board’s reasoning was sparse, and

consisted of the following:

Given Claimant’s age, physical limitations, education,
mental capacity and training, the Board finds that he
7
29 Del. C. §10142.
8
Johnson v Chrysler Corp., 213 A. 64 (Del. 1965)
6
is not prima facia a displaced worker (citation omitted).
Although Claimant is 79 years old, he was working full-
time in in a physically demanding job as a forklift operator
less than a year ago, so his age does not seem to be an
impediment to employment. Claimant completed 10th
grade, has no language barrier, drives a car, functions
as an adult in today’s society, and has a delightful
personality. Claimant has not persuaded the Board that
he is a displaced worker who is so handicapped that he
cannot be employed in the regular labor market and
requires a specially created job in order to be employed
(citation omitted).9

Because they found him not to be a displaced worker, the Board moved on to

determine if he had made reasonable efforts to find a job but was unable to do so

because of his disability.10 Claimant made no effort, so the Board found he was not

a displaced worker on that basis.11

Mr. Smith’s unrebutted testimony was that he was 79 years old with a 10 th

grade education. He has worked many years as a forklift operator, the last 10 years

for Allen Foods. He has difficulty turning his head, has difficulty standing for long

periods, and relies on his family for transportation. I have already detailed his

doctor’s findings, above.

9
Board decision, p.14.
10
See M.A. Hartnett v. Coleman, 226 A.2d 910, 913 (Del. 1967).
11
Employer had a labor market expert and survey that the Board excluded for failure to disclose
it in a timely manner.
7
For me, Mr. Smith is a classic displaced worker. I will address the Board’s

findings seriatim:

1. Although Claimant is 79 years old, he was working full-time in a
physically demanding job less than a year ago, so his age does not seem to
be an impediment to employment.

This finding is either irrelevant, a non sequitur, or both. The important part of

the statement is he is 79 years old. It is an axiom that Father Time is undefeated.

The Board does not explain how the fact that Mr. Smith held a physically demanding

job before his injury effects his post injury abilities. It is commendable Mr. Smith

worked at a physically taxing job to age 79, but that tells us nothing about his current

abilities. In addition, the Board never addresses the age issue other than to state his

age. He has both significant physical and cognitive disabilities which clearly and

obviously effect his employability. At oral argument, I asked employer’s counsel

about the disabilities, and how they would affect employability. 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.12

2. Claimant completed the 10th grade.

The Board does not tell me if this is a positive finding in favor of

employability, or a negative against it. I have no way to analyze its decision. Many

12
231 A.2d at 261.
8
of the cases applying the displaced worker doctrine involve people with even less

formal education. But in this world, the lack of a high school degree is a significant

fact favoring a finding of being displaced.

3. He drives a car.

This finding provides some small support for the Board’s decision. But it also

ignores the testimony that he relies upon family for most of his transportation.

4. He functions as an adult in today’s society.

This is so general as to be of no use. There is no standard applied. This is the

same language criticized in in Yoder v. Twin River Management Group, Inc.13

5. He has a delightful personality.

I have no doubt this assessment is correct, but it does not help me in answering

if he is employable.

Mr. Smith has significant physical limitations involving his neck and back.

The doctors agree he cannot do his old job and is limited to sedentary work. He has

significant, well-documented cognitive dysfunction for which he is still treating.

He is 79 years old with a 10th grade education. He has done nothing in his

employment history but heavy labor.

13
2025 WL 2207447 (Del. Super. Aug. 4, 2025).
9
The record is free of any discussion of Mr. Smith’s computer proficiency or

even the use of a smart phone.

It is not clear to me why the Board made the decision it did. The Board’s

explanation is jejune and full of platitudes masquerading as evidence-based reasons.

The Board’s decision is not grounded in substantial evidence, nor an application of

the appropriate law. I am reversing the Board’s decision. Relying upon Adams v.

Shore Disposal, Inc.,14 I am not remanding the case. Of course, this is without

prejudice to the employer’s right to file another Petition to Terminate.

IT IS SO ORDERED

/s/Craig A. Karsnitz
Craig A. Karsnitz

cc: Prothonotary

14
720 A.2d 272, 273-274 (Del. 1998).
10