IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE

BARRETT BUSINESS SERVICE, INC., )

d/b/a ENTERPRISE MASONRY, )

 )

Appellant, )

) C.A. No. N19A-11-011 DCS

v. ) 

 )

ROBERT EDGE, )

)

Appellee. )

Submitted: October 9, 2020

Decided: October 29, 2020

Upon Appeal from the Industrial Accident Board–

REVERSED AND REMANDED

OPINION

Nicholas Bittner, Esquire, Attorney for Appellant.

Timothy E. Lengkeek, Esquire, Attorney for Appellee.

STREETT, J.
1

Introduction

 Barrett Business Service, Inc., d/b/a Enterprise Masonry, (“Employer”;

“Appellant”) appeals the Industrial Accident Board’s (the “Board”) decision on 

remand that a stroke suffered by Robert Edge (the “Claimant”; “Appellee”) was 

caused by a work-related accident. 

 The Board issued an initial decision holding that Claimant’s stroke was caused 

by a work-related accident. Employer appealed that initial decision to this Court. 

This Court reversed the Board’s decision and remanded the matter, holding that the 

Board did not make, or articulate, findings on causation1. On remand, the Board 

found that Claimant’s stroke was caused by the work-related accident. 

 Employer is now appealing the Board’s decision on remand to this Court. 

Employer contends that the Board committed legal error, abused its discretion, and 

its findings were not supported by substantial evidence. Claimant contends that the 

Board’s decision is free from legal error and supported by substantial evidence. 

 This Court finds that the Board erred by failing to permit new expert witness 

testimony on the issue of causation. Therefore, the Board’s decision is REVERSED

and REMANDED.

2

 

1 The current judge did not handle the original appeal or remand order.

2 Although Employer raised several issues, the Court’s focus is on the issue of additional expert 

witness testimony.
2

Statement of Facts

 On May 11, 2017, at approximately 8:45 a.m., Claimant, while working for 

Employer, fell off of a scaffold onto the ground six to eight feet below. There were 

no eyewitnesses. After the fall, Claimant was able to walk, told coworkers that he 

had hurt his hip, and filled out an accident report. Claimant also sustained a cut near

his left eye that had been caused by his safety glasses. An ambulance was called for 

Claimant and he was transported to the hospital.

 At approximately 10:25 a.m., less than two hours after the fall, Claimant 

arrived at the emergency room. While stitches were being applied to the cut near

his left eye, Claimant suffered a transient ischemic attack (“TIA”) which is also 

called a mini-stroke. The medical professionals took aggressive measures to reduce 

Claimant’s significantly high (213/143) blood pressure. A tissue plasma activator 

(“TPA”), also called a clot buster, was administered.

3

 The TPA caused a rapid drop

in Claimant’s blood pressure which starved Claimant’s brain of blood and severely 

exacerbated Claimant’s stroke.

4

 Later that day, at approximately 6:00 p.m., Claimant was taken to surgery. 

The surgeon found that two of Claimant’s cerebral arteries were substantially 

 

3 Employer’s medical expert, Dr. Stephen L. Fedder, explained that a TPA, or clot buster, “break[s]

up an acutely formed clot and prevent[s] the addition of more clots.” Dr. Fedder’s Second 

Deposition, at 18.

4

It is undisputed that the rapid blood pressure drop exacerbated conditions leading to the stroke. 
3

occluded. Although the surgeon removed two clots and then implanted a stent,

Claimant became disabled and is in a wheelchair as a result of the stroke. 

Procedural History

 On October 3, 2017, Claimant filed a Petition to Determine Compensation 

Due to establish that his stroke was causally related to the work accident. Employer

disputed that the stroke was caused by the work accident.

a. The Board’s Initial Decision

 On March 23, 2018, a hearing on Claimant’s Petition was held before the 

Board. Dr. John B. Townsend testified, by deposition, as the medical expert witness

for Claimant. Dr. Stephen L. Fedder testified, by deposition, as the medical expert 

witness for Employer. 

 Claimant did not present any live witnesses. Employer’s live witnesses were 

William Ritter, foreman for Employer; Kyle Furtaw, project manager and safety 

coordinator for Employer; and Rhonda Malatesta, financial controller for Employer. 

 In his deposition testimony on behalf of Claimant, Dr. Townsend testified that 

he is board certified in neurology.5 Dr. Townsend examined Claimant on November 

14, 2017.6 Claimant was unable to speak and Claimant’s companion spoke to Dr. 

 

5 Dr. Townsend’s Deposition, at 5.

6

Id. at 5.
4

Townsend on behalf of Claimant.7 Dr. Townsend testified that Claimant was a 

smoker prior to the accident but his history did not show any other past medical 

issues or prior accidents.8 

 Dr. Townsend observed that Claimant was in a wheelchair, could only say 

“oh,” and was unable to read.9 Claimant also had a flaccid paralysis of the right arm. 

The record also reflected that Claimant requires help with dressing, needs help with 

tasks that involve the right side of his body, and requires assistance going to the 

bathroom (although Claimant can walk with the assistance of a quad cane and can 

feed himself).

10

 

 Additionally, Dr. Townsend diagnosed Claimant as having expressive aphasia 

(unable to get words out), receptive aphasia (difficulty in understanding what was 

being said to him), and apraxia (not being able to figure out how to do simple 

tasks).11 Dr. Townsend opined that these symptoms were consistent with a left 

hemisphere stroke.12

 

7

Id. at 7.

8

Id. at 7–8.

9

Id. at 23. 

10 Id. at 7, 23.

11 Id. at 23.

12 Id.
5

 Dr. Townsend reviewed the medical records relating to the accident and 

emergency room visit. He stated that the records show that Claimant had fallen eight 

feet from a scaffolding, his blood pressure was elevated (213/143) when he arrived 

at the hospital, he had “what looked like a black eye with a laceration right next to 

the eye on the left side of his face”, and he had tenderness to his left shoulder and 

hip.13 Dr. Townsend opined that the injuries suggested that Claimant fell onto his 

left side and onto his face.14 

 According to the records, the emergency room staff decided to close the cut 

on Claimant’s face with stitches.15 While the stitches were being applied, Claimant 

developed slurred speech, a stutter, and difficulty uttering words.16 The doctors 

noted Claimant’s high blood pressure and that Claimant was reporting new 

“clumsiness” in his right hand.17

 Dr. Townsend testified that the emergency room doctors then activated its

stroke alert procedure.

18

 A CT angiogram performed on Claimant showed a mild 

 

13 Id. at 9–10.

14 Id. at 10.

15 Id.

16 Id.

17 Id. at 10-11.

18 Id. at 11. 
6

buildup of plaque in the right internal carotid artery and mixed plaque that was 

calcified and non-calcified on the left side at the carotid bifurcation.19 The records 

also showed that a new clot was blocking the blood vessel in the left carotid artery.20

Claimant was then seen by a stroke neurologist who decided that Claimant should 

be given a TPA (a clot buster)21 and Claimant’s blood pressure would be lowered

with an IV infusion of blood pressure medicine.22 

 Dr. Townsend stated that Claimant “became acutely aphasic and his right 

extremity became flaccid”

23 while the blood pressure medication was being 

administered to Claimant. Claimant’s stroke-like symptoms increased as his blood 

pressure dropped.

24

 Dr. Townsend explained the reason for this occurrence:

[I]n the case of somebody that has a long-standing high blood pressure, 

when you acutely drop the pressure, the cerebral blood flow has a 

certain type of regulatory process where it – the brain likes to maintain 

the blood flow at a very even level, but when you get to a certain blood 

pressure level, it drops off dramatically. And in patients with normal 

blood pressure taken down to 130 systolic blood pressure, which is the 

upper number, wouldn’t have much of an effect on the cerebral blood 

flow. In this case with the person having high blood pressure likely for 

a period of time, you suddenly drop their blood pressure to 130, which 

 

19 Id.

20 Id. at 13.

21 Id. at 15.

22 Id.

23 Id. at 15–16.

24 Id at 16.
7

wouldn’t be a big deal for a normal person, you’re going to put him on 

the rapid drop-off and make his cerebral blood drop dramatically over 

a very narrow range of blood pressure, which is likely what happened 

here...

...

... And if you already don’t have blood flow to an area because of a 

clot there, if you suddenly take blood pressure, or take away the 

cerebral blood flow, then more area is going to be affected, and you get 

the effect of getting a bigger stroke.25

 Dr. Townsend testified that the emergency room staff then increased 

Claimant’s blood pressure to the 160 range after noticing that Claimant’s symptoms 

worsened after the treatment.26 Around 6:00 p.m. later that day, another CT 

angiogram was performed on Claimant.27 According to Dr. Townsend, this CT 

“showed a long segment of occlusion in blood vessels above the level of the 

blockage, which suggests that the clot broke off from that, a big clot, and went 

further north, which likely produced the additional strokes.”28 After the CT, a 

procedure was performed on Claimant and a stent was inserted after removal of a 

clot from the carotid artery and a large fragment of embolic clot.29

 

25 Id. at 16–17.

26 Id. at 17.

27 Id. at 18. 

28 Id.

29 Id. at 19–20.
8

 In Dr. Townsend’s opinion, Claimant’s fall off the scaffolding more likely 

than not caused or contributed to his stroke.30 Dr. Townsend stated that Claimant 

would not have suffered the massive stroke but for the fall off of the scaffolding.

31

 Dr. Townsend explained:

[The fall] could have caused stretching of the carotid artery, which 

could have caused a fracture of the preexisting plaque, which would 

then give rise to more thrombus, which could then embolize into the 

upper blood vessels. Or that the fall caused a direct trauma to the 

carotid artery, which then had a tear in the area of the preexisting 

plaque, which gave rise to the thrombus, which then gave rise to his 

stroke.32

 In addition, Dr. Townsend offered that Claimant’s very high blood pressure 

rate at the emergency room was, in part, related to his pain that was caused by the 

work accident.33 Dr. Townsend explained that it would have been reasonable for the 

emergency room staff to try to lower his blood pressure but not “down quite as far 

as they got it while treating him.”34 Dr. Townsend stated:

So, it’s my opinion that there are issues that occurred as a result of the 

fall likely increasing his blood pressure. The fact that he potentially 

hyperextended his neck and had evidence for a new thrombosis in an 

area where he’s had a persistent blood clot all points to the fact that the 

 

30 Id at 44. 

31 Id. at 47.

32 Id. at 44–45. 

33 Id. at 46. 

34 Id. at 47.
9

work-related injury did play a substantial role in his developing the 

stroke following the injury.35

He also testified that the several-hour delay in the stroke symptoms would be 

consistent with this type of an injury.36 

 Testifying on behalf of Employer by deposition, Dr. Fedder said that he is a 

neurological surgeon, he conducted a comprehensive examination of Claimant on 

December 19, 2017 while Claimant’s son was present, he reviewed the available 

pertinent medical records, and he relied upon this examination and the records to 

reach his opinion.

37

 Dr. Fedder’s opinion is that the fall and the stroke are 

unrelated.38

 Dr. Fedder testified that Claimant reported in the Employee Report of Injury 

or Illness that he fell, primarily, on his hip, shoulder, and elbow.39 Dr. Fedder opined 

that the emergency room’s “clinical assessment coupled with the accurate and clear 

penmanship of [Claimant] in his employee statement supports an intact neurologic 

examination and a grossly architecturally stable spine.”40 He added that this opinion 

 

35 Id. at 51–52.

36 Id. at 52.

37 Dr. Fedder’s Deposition, at 5, 8–12.

38 Id. at 12.

39 Id. at 13.

40 Id. at 13–14.
10

was supported by imaging.41 Dr. Fedder explained that “[t]he initial CAT scan of 

[Claimant] at 12 o’clock was essentially normal other than swelling around the 

laceration of his left lateral orbital area, and the CT scan of his cervical spine done 

in the emergency room does not identify fracture or dislocation.”42

 Dr. Fedder stated that Claimant had a longstanding history of hypertension 

that set him up to have a stroke.43 He explained that Claimant’s “hypertension was 

longstanding and unfortunately untreated, leading [Claimant] to the serious 

condition he was in.”44 He also testified that Claimant “obviously had many strokes 

before” the date of the accident.45 Dr. Fedder also stated that there was no evidence 

that Claimant’s injuries impacted either the carotid or vertebral arteries in the neck.46

 In addition, Dr. Fedder asserted that the emergency room records showed no 

evidence of neurological deficits at the time of admission. He also said that the 

subsequent neurological deficit were not related to the “relatively minor fall.”47

 

41 Id. at 14. 

42 Id.

43 Id. at 15. 

44 Id. at 16–17.

45 Id. at 16.

46 Id. at 20.

47 Id. at 25. 
11

 Dr. Fedder described Claimant’s presentation as being significantly 

neurologically impaired and unable to communicate in a meaningful way, other than 

to give a thumbs up or thumbs down.48 Claimant indicated that he was a daily 

smoker of one to two packs of cigarettes a day (although he had stopped smoking by 

the time of the examination).49 Claimant also attends physical therapy sessions three 

times a week and is taking several medications, post-stroke, for hypertension.50 

 Dr. Fedder provided his diagnostic impression in relation to the work 

accident.51 He testified that Claimant had sustained a “scalp laceration, left shoulder 

and left hip contusion.”52 Concerning the stroke, Dr. Fedder stated that it “is an 

independent event related to [Claimant’s] clear history of longstanding and unrelated 

hypertension and tobacco usage.”53 

 Dr. Fedder based this conclusion on Claimant’s documented history of 

hypertension, an EKG that demonstrated signs of left ventricular strain from 

hypertension, and CT scans that showed evidence of prior strokes. He also pointed 

 

48 Id. at 23. 

49 Id. at 24.

50 Id.

51 Id. at 29.

52 Id.

53 Id.
12

out that Claimant “did not have signs or symptoms of any neurologic event at the 

time of his fall from the scaffolding.”

54 Claimant did not lose consciousness, was 

able to bear weight, filled out his statement in neat penmanship, provided a history, 

and did not manifest any neurological abnormalities until 12:45 p.m.55 He also noted 

that the records showed no evidence to support a diagnosis of traumatic brain injury, 

including a concussion, related to the work accident.56

 In Dr. Fedder’s opinion, the stroke was unrelated to the fall but was 

exacerbated by the effort in the emergency room to lower Claimant’s blood pressure. 

Dr. Fedder explained:

When you have longstanding, untreated hypertension, your body gets 

used to it and it becomes necessary in order [to] maintain perfusion to 

the brain, particularly when perfusion of the brain is compromised by 

significant atherosclerotic stenosis and/or occlusion of the major 

feeding blood vessels to the brain. When you reduce the blood pressure 

in a person like that, even to levels that would still be considered 

elevated, they fall below the ability of the brain’s cerebrovascular 

regulatory capacity and causes ischemic changes and vascular 

embarrassment of the brain, leading to the situation that happened 

here.57

 

54 Id. at 32. 

55 Id. at 32–33. 

56 Id. at 34.

57 Id. at 31.
13

 Dr. Fedder disagreed with Dr. Townsend’s contention that the fall could have 

caused an embolism to break loose from the carotid artery at the time of the fall.58 

Dr. Fedder opined that if that were the case, Claimant “would have manifested with 

a stroke at the time of the fall” instead.

59

 Mr. Ritter, Claimant’s coworker, testified that he was present at the job site 

on the morning of the fall, he heard somebody yell but did not see Claimant fall, and 

Claimant told him that his shoulder and side were hurting but did not complain of 

any head or neck pain.60 Claimant also had a small cut near his eye that was bleeding 

(Mr. Ritter thought that the cut came from Claimant’s safety glasses).61 Mr. Ritter 

said that prior to the accident Claimant was wearing a harness, a hard hat (the hard 

hat had fallen to the ground during the accident), and safety glasses.62 

 Mr. Ritter testified that Claimant stated that he was “okay,” he did not ask for 

medical treatment, and he was a little drowsy but seemed fine otherwise.63 Mr. Ritter 

also said that Claimant was standing and walking with the help of other people.64 

 

58 Id. at 45.

59 Id.

60 The Board Hearing of April 19, 2019, at 100.

61 Id.

62 Id.

63 Id. at 101.

64 Id.
14

Additionally, Mr. Ritter said that he was aware that Claimant was a longtime smoker, 

previously reported headaches while at work, and previously asked for Tylenol 

(twice several months before the accident).65 Mr. Ritter did not have knowledge of 

Claimant’s blood pressure rate or any prior falls.66 

 Kyle Furtaw, the project manager and Employer’s safety coordinator, testified 

that he arrived at the scene of the accident shortly after it occurred.67 Mr. Furtaw 

testified that Claimant complained of pain to his left side and left leg, had a laceration 

to his eye,68 and was a “little shaken up.”69 Claimant did not complain to Mr. Furtaw 

of head or neck pain.70 Claimant was then taken to the hospital in an ambulance and 

Mr. Furtaw followed the ambulance.

71

 At the hospital, Claimant complained about 

his left leg and the doctors closed the cut near his eye with stitches.72 

 

65 Id. at 102.

66 Id. at 103.

67 Id. at 108.

68 Although Mr. Furtaw testified that the laceration was to Claimant’s eye, other testimony indicate 

that the laceration was near the eye.

69 Id. at 109.

70 Id.

71 Id. at 110.

72 Id.
15

 Mr. Furtaw stated that he witnessed the onset of Claimant’s mini-stroke, which 

occurred approximately two hours after they arrived at the hospital.73 Mr. Furtaw

said that the doctors questioned Claimant about whether he knew what was going on

and Claimant had trouble speaking.74 Mr. Furtaw testified that the doctor said that 

the mini-stroke did not have a correlation to the work accident.75 Mr. Furtaw 

testified that he did not know whether Claimant had hit his head during the 

accident.76 He also stated that someone on the hospital staff (he did not remember 

the individual’s name or position) told him that the Claimant’s blood pressure was 

the cause of the TIA (mini-stroke).77

 Rhonda Malatesta testified that she handles workers compensation claims for 

Employer and is on its safety committee.78 She stated that Claimant had a prior 

claim relating to a previous fall off of scaffolding that had occurred around 2013.79 

There was no allegation of a stroke related to the first fall. Ms. Malatesta testified 

 

73 Id. at 112.

74 Id. at 113.

75 Id. at 114.

76 Id. at 117.

77 Id. at 118.

78 Id. at 121.

79 Id. at 123.
16

that she was aware that Claimant had pre-existing high blood pressure and was a 

longtime smoker.80 She also stated that she was aware that Claimant’s brother had 

suffered two strokes. According to Ms. Malatesta, the Petition was the first time that 

Employer knew that there was a claim that the stroke was caused by the work 

accident.81 

 On April 19, 2018, the Board issued its decision granting Claimant’s Petition. 

The Board ordered that Employer pay Claimant’s outstanding medical expenses, 

attorney’s fee in the amount of $8,000.00, and medical witness fees. The Board also 

ruled that Claimant would be placed on an open agreement for total disability 

beginning on the date of the work accident.

 The Board determined that the issue was “whether Claimant’s stroke was 

causally related to his fall from a scaffold on May 11, 2017.”82 In finding that the 

stroke was causally related to the fall, the Board stated that it relied on the opinion 

of Dr. Townsend. It stated that it found Dr. Townsend’s testimony to be more 

reliable than that of Dr. Fedder. 

 The Board stated that this was a “but for” case, finding that:

The fact that Claimant’s hypertension was a pre-existing condition, 

latent or not, does not matter, he was in the hospital being treated for 

 

80 Id. at 124.

81 Id. at 128.

82 The Board’s April 19, 2018 Opinion, at 21.
17

injuries related to the fall at work. Simply put, but for the work accident 

Claimant would not have been in the emergency room that day 

ultimately getting treated for hypertension. The Board also finds it 

credible that Claimant’s blood pressure temporarily increased as a 

result of the accident. This is not a situation where medical opinions 

differ as both doctors agreed that the treatment of high blood pressure 

caused a massive stroke... Dr. Townsend specifically noted that were 

it not for the accident Claimant would not have had the treatment to 

rapidly reduce his blood pressure.83

b. Appeal to this Court of the Board’s Initial Decision

 On May 16, 2018, Employer filed a Notice of Appeal of the Board’s decision. 

On appeal, Employer argued that the Board ignored the progression and timeline of 

events while Claimant was in the emergency room. Employer argued that 

Claimant’s treatment and causes for treatment were bifurcated into treatment for his 

fall and separate treatment for a stroke that happened during his hospital stay that 

was unrelated to his fall.

 On May 1, 2019, this Court reversed and remanded the Board’s decision.84 

The Court focused on the issue of causation. The Court found that the expert 

testimony presented the Board with three choices as to causation:

1) the stroke was a coincidence, unrelated to the fall, 2) the fall caused 

trauma to the carotid artery itself, which caused a stroke, or 3) embolic, 

non-calcified plaque was loosened by the trauma of the fall, travelled 

to the carotid artery and was the proverbial straw that broke the camel's 

back, causing the stroke.

85

 

83 Id. at 22.

84 Barrett Business Services, Inc. v. Edge, 2019 WL 2070460 (Del. Super. May 1, 2019).

85 Id. at *2.
18

 The Court found that the Board did not adopt any of these choices. The Court 

noted that the Board simply awarded compensation on the basis that “but for the 

work accident Claimant would not have been in the Emergency Room that day 

ultimately getting treated for hypertension”

86 although all of the experts agreed that 

the TPA (clot buster) dramatically increased the severity of the stroke.

 The Court held that the central question put to the Board was whether the work 

accident caused the stroke but “[t]he Board made no finding whether the [stroke] 

was caused by the workplace accident” or “whether the treatment for hypertension 

was related to the workplace accident.”87 

 The Court also found that the Board and Claimant’s expert did not relate the 

increase in blood pressure to the stroke. In addition, the Court wrote that, although 

the Board found that the TPA (clot buster) caused Claimant’s blood pressure to drop 

dramatically which caused “dramatic effects” on the stroke, “the Board did not make 

a finding whether and how the administration of the TPA was a result of the 

accident.”88 

 The Court concluded:

 

86 Id. at *3. 

87 Id.

88 Id.
19

The Court does not presume that the Board intended to set new 

precedent making the Employer the general health insurer of its 

employees. But in order to sustain the Board's ruling, a reviewing Court 

must be able to see that the Board has found that “but for” the workplace 

accident, the stroke and its aftermath would not have occurred. There 

was at least some expert testimony that this was true, but in adopting 

the broad approach that it did, the Board did not rely on these expert 

theories.89

In reversing and remanding, the Court held:

The Claimant in this case may be [sic] deserve the compensation 

ordered in the Board's prior decision. By this Opinion, the Court does 

not mean to suggest that he is not. The Court remands only because the 

Board's decision does not articulate findings on causation sufficient to 

allow the reviewing Court to engage in appellate review of its findings. 

On the other hand, the Board may determine that it must hear more 

testimony before it can make its findings on causation.90

c. The Board’s Decision on Remand

 On June 6, 2019, the Board held a hearing to determine the course and scope 

of the remand proceedings.91 At the hearing, Employer asserted that there is a 

statutory right at a remand hearing to present new evidence and arguments limited 

to the reasons why the case was remanded. Employer argued that because the 

“problematic portion [of the Board’s decision] was the expert opinion ... [Employer] 

 

89 Id.

90 Id. at *4.

91 Prior to remand, one of the original Board members at the determination proceeding had retired. 

As such, on remand, the Board included a new Board member. The record does not reflect that 

Employer raised this issue at or before the remand hearing. 
20

[is] entitled to present new evidence on the expert opinions,” including, possibly, 

new depositions, new experts, and a new defense medical examination (“DME”).

92

 

In addition, Employer contended that it was legally entitled to have Claimant 

undergo a new DME, whether or not the Board allows it as evidence.93 

 In contrast, Claimant argued that a remand hearing and new evidence were not 

necessary because the record is complete.

94

 Claimant asserted that the Board was

merely required to add one sentence to its order stating that Claimant’s high blood 

pressure, caused by the pain from the fall, was being treated in the hospital and led 

to the stroke.95 Claimant also argued that, at its discretion, the Board could address 

whether the trauma of the fall caused a piece of plaque to loosen, causing the 

stroke.96 In addition, Claimant asserted that a new DME was not necessary because 

Claimant’s condition had not changed.97 

 On June 18, 2019, the Board issued its order determining the course and scope 

of the remand proceedings. The Board determined that a hearing would be held, but 

 

92 Hearing to Determine the Scope of Remand Proceedings Transcript, at 8-9.

93 Id. at 7.

94 Id. at 6.

95 Id. at 5.

96 Id.

97 Id. at 10.
21

limited the hearing to the issue for which the Board’s first decision was remanded. 

The Board found that the “issue for remand is a clarification and explanation of the 

Board’s findings on causation.”98 The Board wrote that the Superior Court held that 

the Board’s decision did not “sufficiently link” the Board’s determination of 

causation to “the opinions of Claimant’s medical expert, Dr. John Townsend.”99 As 

such, the Board limited the evidence to this issue. 

 In its order, the Board held that:

The parties may obtain updated testimony from their medical experts 

to address the medical causation issue however the Board notes that, 

based on the decision on appeal, there is limited relevance (if any) for 

other fact witnesses. Put simply the evidence presented must relation 

to how Claimant’s stroke could have been causally related to his fall at 

work medically.100

 The Board also found that another DME would not be relevant because the 

issue on remand did not concern Claimant’s current medical condition. Therefore, 

the Board concluded that it was not reasonable to require Claimant to undergo 

another DME.

 On September 27, 2019, the Board held the remand hearing. Employer

submitted an updated deposition from its expert, Dr. Fedder. Claimant did not 

 

98 The Board’s Order to Determine the Scope of the Remand Proceedings, at 2. 

99 Id. 

100 Id. at 2–3.
22

present an updated deposition of its expert, Dr. Townsend. Consistent with the 

Board’s order, there were no additional witnesses.

 In the updated deposition, Dr. Fedder again testified that Claimant’s stroke 

was not related to the work accident. He opined that Claimant would have suffered 

a stroke regardless of the work accident and that it was just a coincidence that he 

suffered a stroke several hours after the work accident.

101

 He stated that: “I don’t 

see a medical basis for linking the stroke to the ... physiologically minor work 

event.”102 He concluded that the stroke was caused by “the accumulated damage of 

years of untreated and significant hypertension” and that there was no evidence that 

the work accident accelerated any condition that led to the stroke.103 He also said

that the treatment for the work accident injuries was not responsible for causing 

Claimant’s stroke.104

 Dr. Fedder maintained that Claimant did not sustain a traumatic brain injury 

or concussion.105 He pointed out that Claimant’s employee incident report

(completed on the day of the accident but before the stroke) reflected that Claimant’s 

 

101 Dr. Fedder’s Second Deposition, at 21, 34–35.

102 Id. 

103 Id. at 32.

104 Id. at 34. 

105 Id. at 7–8.
23

penmanship was legible, neat, and accurate.106 He also suggested that the emergency 

room staff did not perform imaging of Claimant’s head when he first arrived because 

“there was nothing to suspect intracranial processes.”107 In addition, Claimant was 

able to provide his history to the emergency room staff.108

 Dr. Fedder also described the fall as “physiologically minor.”109 He observed 

that Claimant sustained a “scalp laceration” without intracranial bleeding or 

fractures, a contusion to the left shoulder without fractures, and trauma to his left hip 

without fractures.110 Additionally, he said that there was no evidence that the fall 

caused a tear in Claimant’s blood vessel.111

 Dr. Fedder also testified that the fall did not affect Claimant’s blood 

pressure.112 He stated that Claimant’s blood pressure was high before the accident113

and pointed out that Claimant had a long history of hypertension.

114

 In addition, and 

 

106 Id.

107 Id. at 20.

108 Id.

109 Id. at 19. 

110 Id. at 19–20.

111 Id. at 23.

112 Id. at 8.

113 Id. at 10.

114 Id.
24

consistent with a history of hypertension, Dr. Fedder explained that the CT scan 

showed that Claimant had a prior stroke in the right thalamus, several small vessel 

disease strokes in the remainder of the brain, chronic left carotid occlusion, and 

significant atherosclerosis of the intracranial arteries.115 Additionally, Dr. Fedder 

stated that Claimant did not see a family doctor on a regular basis and was not taking 

medication for hypertension.116 He considered Claimant’s high blood pressure to be 

an event that was independent to the accident. 

 Dr. Fedder also said that, even if the fall resulted in an increased blood

pressure, the TPA (clot buster) was not administered in response to the accident.117 

Dr. Fedder explained that the TPA was administered in response to Claimant’s 

neurologic deficits that occurred a couple of hours after Claimant arrived at the 

emergency room.118

 Dr. Fedder disagreed with the Board’s finding (in its original decision) that 

treatment for Claimant’s high blood pressure began immediately upon presentation 

to the emergency room.119 Dr. Fedder testified that the records showed that Claimant 

 

115 Id. at 8–9.

116 Id. at 8.

117 Id. at 19.

118 Id.

119 Id. at 12.
25

arrived at the emergency room at 10:34 a.m. but that he did not receive significant 

intervention with his blood pressure until 12:45 p.m.120 Dr. Fedder stated that the 

blood pressure treatment was administered when it was determined that Claimant 

was a candidate for TPA (clot busters).121

 Concerning the issue as to whether Claimant’s high blood pressure caused the 

stroke, Dr. Fedder testified that Claimant’s high blood pressure set the stage for his 

stroke.122 He stated that high blood pressure was “the causal factor, and certainly 

the medical basis for all the many strokes that were present in the brain” before the 

accident.123 In his opinion, the stroke was not an acute stroke caused by an acute 

hypertensive crisis.124 Furthermore, Claimant had preexisting risk factors for a 

stroke125— significant hypertension126 and a history of tobacco use.127 

 

120 Id.

121 Id. 

122 Id. at 13.

123 Id.

124 Id. at 14.

125 Id. at 21–22.

126 Id. at 22.

127 Id.
26

 Concerning Dr. Townsend’s argument that the stroke was a delayed result of

trauma to Claimant’s carotid artery, Dr. Fedder asserted that such cases are 

“extraordinarily rare.”128 He testified that he had seen less than ten cases of acute 

trauma causing a stroke.

129

 Dr. Fedder maintained that the work accident was not 

associated with intracranial trauma or neck trauma and there was no evidence of

stretching of the carotid artery.130 

 On October 22, 2019, the Board issued its decision on remand. The Board, 

again, found in favor of Claimant.131 The Board acknowledged that the case was 

remanded because the Court found that the Board “did not provide an adequate 

record for appellate review by failing to provide conclusions linked to one of the 

causation theories espoused by Claimant’s expert, Dr. Townsend.”132 

 The Board stated that it was not convinced that the accident caused Claimant’s 

blood pressure to increase. It wrote that the testimony that the pain from the accident 

increased Claimant’s blood pressure was “speculative and insufficient to Claimant’s 

 

128 Id. at 28. 

129 Id. at 31.

130 Id. at 26, 31.

131 The Board mailed its decision on October 29, 2019.

132 The Board’s October 22, 2019, Opinion, at 25.
27

burden of proof.”133 The Board pointed out that there was no evidence that provided 

Claimant’s baseline blood pressure prior to the accident that could be compared to 

Claimant’s blood pressure after the accident.

 Nevertheless, the Board found for Claimant because Dr. Townsend had 

testified “that the fall at work caused the preexisting arteriosclerosis or plaque to 

move or break off ultimately resulting in the stroke.”134 The Board wrote:

Dr. Townsend testified that there was evidence of calcified or old 

plaque as well as evidence of non-calcified or newly formed plaque. 

This evidence demonstrates that something happened on that morning 

which ultimately resulted in the new occlusion at the bifurcation which 

caused a massive stroke. Dr. Townsend provided studies as evidence 

that the symptoms can have a delayed onset when an artery is injured.135 

 The Board concluded that Dr. Townsend’s viewpoint, “while not the strongest 

evidence, is sufficient to carry Claimant’s burden of proof.”136 The Board noted that 

“[m]edical evidence stating a possibility of causation is sufficient when combined 

with other evidence tending to show causation.”137 The Board reasoned:

Dr. Townsend’s opinion that the fall may have caused an injury to the 

artery combined with the fact that Claimant was not having any 

symptoms related to hypertension and carotid artery disease prior to the 

 

133 Id. at 26.

134 Id. at 27.

135 Id.

136 Id.

137 Id.
28

accident rises above the minimum evidentiary threshold for Claimant 

to meet his burden to prove his stroke was causally related to the work 

accident. Consequently, the Board finds Claimant’s stroke causally 

related to the compensable work accident and awards Claimant medical 

expenses and ongoing disability.138

 The Board also awarded Claimant $3,750.00 in attorney’s fees, in addition to 

the $8,000.00 awarded in the Board’s initial decision. The Board took into account 

the attorney’s fees customarily charged in the locality and found that this amount 

represented a reasonable fee.

d. Appeal to this Court of the Board’s Decision on Remand

 On November 26, 2019, Employer filed a Notice of Appeal of the Board’s 

second decision. 

 On February 10, 2020, Employer filed its Opening Brief.

 On February 20, 2020, Claimant filed his Answer.

 On February 27, 2020, Employer filed its Reply.

Parties’ Contentions

 Employer contends that the Board committed legal error and abused its 

discretion when it denied Employer’s request to introduce “new, relevant testimony” 

on “the question of the medical cause of the stroke and whether it had any relation 

to the work accident.”139 Employer asserts that the Board should have allowed new 

 

138 Id. at 28.

139 Employer’s Opening Brief, at 17.
29

evidence, a new hearing was required because one of the original hearing officers 

was absent from the remand hearing, and that attorney fees should not have been 

awarded. Employer also contends that the Board’s decision was not supported by 

substantial evidence.

Employer asserts that the law requires that a party be allowed to present 

additional evidence on the problematic issue (medical causation) on remand at the 

remand hearing.

140

 Employer argues that, concerning the issue of causation, it 

“determined that an additional medical expert was needed from a different medical 

specialty.”141 However, the Board limited Employer “to re-deposing the same 

medical expert it had used previously.”142 

 In addition, Employer argues that a substitute Board member at the remand 

hearing who did not participate in the original hearing was improper. Employer

states that the original Board heard testimony from three live witnesses, which 

provided information of Claimant’s history, the accident, and Claimant’s appearance 

and demeanor after the accident. Employer argues that this testimony was critical 

and the new Board member should have been “afforded the opportunity to scrutinize 

 

140 Id. at 19, citing Morris James LLP v. Weller, 2018 WL 1611267 (Del. Super. Mar. 29, 2018); 

Johnson Controls v. Haines, 1999 WL 743570 (Del. Super. Aug. 17, 1999). 

141 Id. at 20. 

142 Id.
30

the witnesses, including the opportunity to ask questions directly.”143 Employer

explains that the Board’s decision that the stroke was caused by the work accident 

“is only legitimate if the [C]laimant sustained a meaningful blunt trauma to the head 

or neck.”144 Employer argues that the live testimony is necessary to determining 

whether that trauma to the head or neck occurred. 

 Employer also argues that the substitution of a Board Member made it 

impossible for the Board to clarify its prior decision, making a de novo hearing 

necessary. Employer explains that it is “impossible for the Board to clarify its 

reasoning and conclusions because one-half of the decision making body is no longer 

available to provide such clarifications.”145 

 The last legal error alleged by Employer concerns the Board’s decision to 

award Claimant attorney’s fees in the amount of $3,750.00 on remand, in addition 

to the $8,000.00 attorney’s fees awarded at the original hearing. Employer argues 

that Claimant should not have received additional attorney’s fees for the remand 

hearing because Claimant “received no additional benefit.”146

 

143 Id. at 21.

144 Id.

145 Id.

146 Id. at 24, citing Playtex Prods. v. Woodall, 2004 WL 2735455, at *7 (Del. Super. Oct. 7, 2004).
31

 In addition to the alleged legal errors and abuse of discretion, Employer

contends that the Board’s decision was not supported by substantial evidence. 

Employer writes that the Board stated that it relied on Claimant’s expert’s opinion 

that the fall “caused the preexisting arteriosclerosis or plaque to move or break off 

ultimately resulting in the stroke.”147 However, Employer points out that Claimant’s 

expert was more equivocal, saying that the fall “could also stretch the carotid artery 

upwards and backwards, that could produce an issue within the clot, or cause a clot 

to break off and go further upstream.”148

 Employer also challenges Claimant’s expert’s statement that “we know that 

he fell on the left side of his head and struck the lateral part of his face” because

there is no evidence that Claimant fell on his head.149 Employer notes that the 

testimony established that Claimant fell on his hip, a witness testified that he did not 

know whether Claimant hit his head, and Claimant’s own incident report states that 

he impacted his hip, should, and elbow (and did not mention head). 

 Employer also contends that the Board’s findings from the original hearing 

and the findings from the remand hearing are contradictory. Employer states that 

the Board’s original decision found that Claimant “did not sustain direct trauma to 

 

147 Id.

148 Id. at 26 (emphasis in Employer’s Opening Brief).

149 Id.
32

the carotid artery”

150 but the Board’s remand decision accepted Claimant’s expert’s 

opinion that the fall may have caused an injury to Claimant’s carotid artery. 

Employer writes that, “[w]ithout direct trauma to the head, neck, or carotid artery, 

[Claimant’s expert’s] entire opinion is rendered baseless and not grounded in 

reality.”151

 Employer also asserts that, while Claimant’s expert based his opinion on

“mere speculation,” Employer’s expert “repeatedly and thoroughly disproved 

[Claimant’s expert’s] contentions by citing to the actual studies and tests performed 

on the Claimant, including confirmation that there was no new plaque.”152 

 Employer further asserts that Claimant’s expert’s testimony was focused on 

the general population and not specifically on Claimant. Employer also points out 

that the studies relied upon by Claimant’s expert show that it is extremely rare that 

a stroke is caused by acute trauma and that the expert failed to reconcile this extreme 

rarity with the facts of the case. Employer additionally argues that the expert 

committed a logical fallacy by opining that the lack of symptoms before the fall 

suggests that the stroke was related to the fall.

 

150 Id. at 27.

151 Id.

152 Id. at 28.
33

 Claimant asserts that the Board’s order determining the scope of the remand 

hearing complied with this Court’s mandate on remand and, therefore, should be 

affirmed.153 Claimant argues that, on remand, the Board properly limited the 

evidence to the issue that this Court identified as problematic, namely causation.154 

Claimant argues that the Court only remanded because it required additional findings 

of facts on Claimant’s theory of causation and that that Board was merely required 

to flesh out the arguments that the parties had made at the first Board hearing. 

Claimant contends that, by granting Employer’s request for a new hearing with 

updated depositions and additional argument, “the Board went above and beyond 

what was required under this Court’s mandate...”155 In a footnote, Claimant asserts, 

without elaboration, that “retaining new experts would go well beyond the matter on 

remand.”156

 

153 Claimant’s Answer, at 8. Claimant cites the following text as the instructions from this Court’s 

prior decision:

The Court remands only because the Board's decision does not articulate findings 

on causation sufficient to allow the reviewing Court to engage in appellate review 

of its findings. On the other hand, the Board may determine that it must hear more 

testimony before it can make its findings on causation. Barrett Business Services, 

Inc. v. Edge, 2019 WL 2070460, *4 (Del. Super. May 1, 2019).

154 Claimant’s Answer, at 9, citing Johnson Controls v. Haines, 1999 WL 743570 (Del. Super. 

Aug. 17, 1999). 

155 Id. at 10.

156 Id. at 8, n.1. 
34

 Concerning the attorney’s fee, Claimant asserts that Employer has cited no 

authority that supports its position that attorney’s fees are not available when there 

is a new hearing. Claimant argues that a fee is warranted for the remand hearing 

because “there was a benefit conferred on the Claimant by the Board’s hearing and 

the Remand Order.”157 Claimant also contends that Employer’s argument 

concerning the attorney’s fee should be rejected because Employer failed to raise an 

objection below. 

 Claimant additionally asserts that the Board’s decision to accept Claimant’s 

expert’s testimony over Employer’s expert’s testimony constitutes substantial 

evidence supporting the Board’s findings for the purposes of appellate review. 

Claimant argues that a claimant meets the threshold for causation when “medical 

evidence stating a possibility of causation when combined with other evidence 

tending to show causation” is presented.158 Claimant notes that his expert testified 

“that the injury to his face or neck when he fell off the scaffolding more likely than 

not caused or contributed to [Claimant’s] stroke.”159 Claimant argues that his expert 

 

157 Id. at 10–11, citing Willingham v. Kral Music, Inc., 505 A.2d 34, 36 (Del. Super. 1985).

158 Id. at 11.

159 Id.
35

“applied well-accepted medical principles to Claimant’s specific medical 

condition.”160 

 Claimant also contends that the Board is allowed to adopt the opinion 

testimony of one expert over another, which constitutes substantial evidence for 

appellate review. Claimant writes that, “[h]aving heard from both experts, the Board 

accepted [Claimant’s expert’s] causation opinion over [Employer’s expert’s] 

opinion.”161 

Standard of Review

 This Court’s review of the Board’s decision is “limited to examining the 

record for errors of law and determining whether substantial evidence supports the 

Board’s factual findings.”162 Questions of law are reviewed de novo. Substantial 

evidence means “relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.”163 Substantial evidence “requires less than a 

preponderance of the evidence, but more than a mere scintilla.”164 This Court is 

precluded from weighing the evidence, determining questions of credibility, or 

 

160 Id. at 14.

161 Id.

162 Blair v. Smyrna School District, 2019 WL 1530127, at *3 (Del. Super. Apr. 5, 2019). 

163 Id. 

164 Gregg v. State, 2016 WL 4530614, at *4 (Del. Super. Aug. 29, 2016) (internal quotation marks 

removed).
36

making its own factual findings,165 and it “must consider the record in a light most 

favorable to the party prevailing below.”166 The Court will affirm the Board’s 

decision if it is supported by substantial evidence and is free from legal error “even 

if the Court might have, in the first instance, reached the opposite conclusion.”167

Discussion

 Employer asserts that the Board committed several legal errors, abused its 

discretion, and that its findings of fact were not supported by substantial evidence. 

This Court finds merit to Employer’s argument that the Board erred by not 

permitting new expert witnesses on the issue of medical causation when requested 

by Employer.168

 

165 Stevens v. State, 802 A.2d 939, 944 (Del. Super. May 23, 2002). 

166 Weitzel v. State, 2016 WL 4249766, at *5 (Del. Super. Aug. 9, 2016).

167 Id. 

168 Employer’s contention that the Board’s decision constitutes legal error or an abuse of discretion

on the basis that one of the Board members at the remand proceedings had not participated in the 

original Board decision is without merit. Employer has provided no authority for its position that 

a de novo proceeding is required when there is a substitution of an officer and a transcript is 

available.

 In addition, Employer’s argument that the Board was required to permit the live lay witnesses 

to provide new testimony in the presence of the new Board member also lacks merit. The Board 

was not required to permit the live witnesses to testify on remand because those witnesses were 

laypersons and did not testify concerning medical causation, which was the problematic issue on 

remand. Johnson Controls, Inc. v. Haines, 1999 WL 1568334, at *1 (Del. Super. Oct. 12, 1999) 

(The Court held that on remand the Board is only required to revisit the issue identified by the 

Court as problematic.). Moreover, the relevant testimony of the live witnesses has not been 

disputed. 
37

 In State v. Steen169, an appeal from the Industrial Accident Board, the 

Delaware Supreme Court held that, when 19 Del. C. § 2350(b)170 and 19 Del. C. § 

2348(f)171 (at the time § 2348(d)) are read together, “the statutory scheme for 

conducting a hearing on remand is unambiguous.”172 The Court explained that “[t]he 

Board is to decide the matter, after the remand hearing, on the basis of the evidence 

from the prior hearing plus any new evidence and legal arguments the parties decide 

to present.”173 In Johnson Controls, Inc. v. Haines, also an appeal from the Industrial 

Accident Board, this Court clarified the Steen holding, stating that “Steen does not 

 

169 State v. Steen, 719 A.2d 930, 934 (Del. 1998).

170 19 Del. C. § 2350(b) states:

In case of every appeal to the Superior Court the cause shall be determined by the 

Court from the record, which shall include a typewritten copy of the evidence and 

the finding and award of the Board, without the aid of a jury, and the Court may 

reverse, affirm or modify the award of the Board or remand the cause to the Board 

for a rehearing. In case any cause shall be remanded to the Board for a rehearing, 

the procedure and the rights of all parties to such cause shall be the same as in the 

case of the original hearing before the Board.

171 19 Del. C. § 2348(f) states:

Whenever a cause shall be remanded to the Board for a rehearing, all evidence 

theretofore taken before the Board in a previous hearing or hearings shall become 

part of the evidence in the hearing upon remand.

172 State v. Steen, 719 A.2d 930, 934 (Del. 1998).

173 Id.
38

require the Board to hear the entire case anew on remand, but rather, allows the 

parties to revisit the issue identified by this Court as problematic.”174 

 More recently, this Court, again, addressed the issue in Morris James LLP v. 

Weller, which was also an appeal from the Industrial Accident Board.175 The Court 

explained that, pursuant to § 2350(b), “it appears on remand of a workers' 

compensation claim that all evidence previously taken becomes part of the record 

on remand, and that the parties may augment that record by offering additional 

evidence or legal argument.”176 Citing Steen and Johnson Control, this Court held 

that “on remand parties are entitled to introduce new evidence and new legal 

argument with respect to the issue identified as ‘problematic.’”177

 In the Instant Case, the problematic issue, for which the matter was remanded,

was the Board’s failure to make, or articulate, findings on medical causation.178 

Employer had “determined that an additional medical expert witness was needed 

 

174 Johnson Controls, Inc. v. Haines, 1999 WL 1568334, at *1 (Del. Super. Oct. 12, 1999).

175 Morris James LLP v. Weller, 2018 WL 1611267, at *4 (Del. Super. Mar. 29, 2018).

176 Id.

177 Id.

178 The Court concluded that the Board, in its initial decision, “made no finding whether the 

[stroke] was caused by the workplace accident” or “whether the treatment for hypertension was 

related to the workplace accident.” Barrett Business Services, Inc. v. Edge, 2019 WL 2070460, at 

*3 (Del. Super. May 1, 2019). The Court also stated that it remanded the case because “the Board’s 

decision does not articulate findings on causation sufficient to allow the reviewing Court to engage 

in appellate review of its findings.” Id. at *4.
39

from a different medical specialty” on the issue of causation. The record shows that

Employer requested permission to call new expert witnesses in addition to being 

allowed to obtain a new deposition for its original expert.179 In its Order, the Board 

held that “[t]he parties may obtain updated testimony from their medical experts to 

address the medical causation issue however the Board notes that, based on the 

decision on appeal, there is limited relevance (if any) for other fact witnesses.”180 

As such, the Board did not provide permission for Employer to call new expert 

witnesses on causation, precluding Employer from so doing.

 The case law is clear that the Board must permit new evidence on the 

problematic issue on remand.181 Here, the record shows that Employer requested 

 

179 At the hearing, Employer argued, “because the problematic portion [of the Board’s original 

decision] was expert opinions, under the statute and case law we are entitled to present new 

evidence on expert opinions.” The Hearing to Determine the Scope of the Remand Proceedings 

Transcript, at 8. Employer then argued that this new evidence could mean “new depositions” and, 

also, that it “could even mean new experts if the parties see fit because this all goes into the expert 

opinions.” Id. at 8-9 (emphasis added). Employer also requested “that we be permitted to a 

remand hearing on the issue of the expert opinions and that we be allowed to bring in new 

depositions, new experts, new evidence in accordance with the abundance of case law.” Id. at 9 

(emphasis added).

180 The Board’s June 19, 2019 Order, at 2-3. The Board also stated: “Put simply the evidence 

presented must relate to how Claimant’s stroke could have been causally related to his fall at work 

medically.” Id. at 3. The Board’s Order is somewhat ambiguous, in that it does not explicitly 

states that new expert witnesses are not allowed. However, at the very least, the Board did not 

fully address Employer’s request for permission to bring in new expert witnesses, and the Order 

appears to have had the effect of precluding new expert witnesses. 

181 Indeed, in its order, the Board stated that “the weight of the case law supports the party 

requesting a hearing on remand to present new evidence and argument” and that the evidence can 

be limited to the issue on remand, which the Board identified as medical causation. The Board’s 

June 19, 2019 Order, at 2. However, the Board then proceeded to deny (or ignore) Employer’s 

request for new evidence (in the form of experts) on the issue of medical causation. 
40

permission to call new expert witnesses on the problematic issue (medical 

causation). Because the Board failed to permit new expert witnesses on causation 

when requested, it committed legal error.182 Therefore, reversal and remand are 

warranted on this ground.183 

 As the Board’s decision is reversed and remanded, and additional expert 

witnesses may testify on causation, this Court declines to address Employer’s

argument that the Board’s findings of fact are not supported by substantial 

evidence.184 In addition, it would be inappropriate for the Court to make a decision 

 

182 Claimant does not cite legal authority for the position that the Board was not required to allow 

requested new expert witness testimony on causation at the remand hearing. Instead, Claimant 

suggests, in a footnote, that the record does not support Employer’s assertion that it had requested 

new experts (Claimant states that the Board’s order does not reference such a request and that 

Employer’s Opening Brief does not cite to the record where the request was made). See Claimant’s 

Answer, at 8, n. 1. However, as discussed in this Opinion, the transcript of the hearing to determine 

the scope of the remand proceedings shows that Employer did request permission to have new 

experts (and Employer cites to the transcript in its Reply). The Hearing to Determine the Scope of 

the Remand Proceedings Transcript, at 8. In addition, Claimant merely asserts (without 

elaboration) that, assuming arguendo that Employer had made such a request, “retaining new 

experts would go well beyond the matter on remand.” Claimant’s Answer, at 8, n. 1. However, 

Claimant does not explain why the retention of new experts on causation would go beyond the 

matter on remand when causation was the matter on remand.

183 Contrary to Employer’s contention, the Board is not required to conduct a de novo proceeding 

on remand; instead, it is required to allow “the parties to revisit” the issue of causation. Johnson 

Controls, Inc. v. Haines, 1999 WL 1568334, at *1 (Del. Super. Oct. 12, 1999) (“Steen does not 

require the Board to hear the entire case anew on remand, but rather, allows the parties to revisit 

the issue identified by this Court as problematic.”).

184 See Barrett Business Services, Inc. v. Edge, 2019 WL 2070460, at *4 (Del. Super. May 1, 2019) 

(In its first Opinion, this Court declined to review the substance of Claimant’s claim and reversed 

and remanded the matter to the Board for further proceedings to properly address the issue of 

causation). 
41

on attorney’s fee at this time.185 However, when determining attorney’s fees, the 

Board must keep in mind that it is required to follow the statutory limitations.186

Conclusion

 Accordingly, the Board’s ruling is REVERSED and REMANDED for such 

further proceedings as the Board may deem necessary consistent with this Opinion.

IT IS SO ORDERED.

 /s/ Diane Clarke Streett______

 Diane Clarke Streett, Judge

 

185 Playtex Prod., Inc. v. Woodall, 2004 WL 2735455, at *2 (Del. Super. Oct. 7, 2004) (“19 Del. § 

2320(10) allows an employee to collect reasonable attorney's fees if they were awarded 

compensation. The legislative purpose of this section was to relieve a successful claimant of the 

legal fees and expenses necessary to obtain his just compensation. Compensation under the statute 

has been defined broadly as to include any benefit or favorable change in the employee's 

position.”).

186 19 Del. C. § 2320(10)(a) states:

A reasonable attorneys' fee in an amount not to exceed 30 percent of the award or 

10 times the average weekly wage in Delaware as announced by the Secretary of 

Labor at the time of the award, whichever is smaller, shall be allowed by the Board 

to any employee awarded compensation under Part II of this title and taxed as costs 

against a party. In order for the Board to award a fee under this section, counsel for 

an employee shall submit to the Board an Attorneys' Fee Affidavit in a form 

prescribed by or substantially in compliance with Board rules, along with a copy of 

the written fee agreement signed by the employee. Any fee awarded to an employee 

under this paragraph shall be applied to offset the fees that would otherwise be 

charged to the employee by that employee's attorney under the fee agreement.
42