Opinion
C.A. No. 05A-12-002 WLW.
Submitted: April 5, 2006.
Decided: July 19, 2006.
Upon Appeal of a Decision of the Industrial Accident Board. Denied.
Walt F. Schmittinger, Esquire and Magnolia Solano, Esquire of Schmittinger Rodriguez, P.A., Dover, Delaware; attorneys for the Appellant.
John J. Klusman, Esquire and Susan A. List, Esquire of Tybout Redfearn Pell, Wilmington, Delaware; attorneys for the Appellee.
ORDER
Upon consideration of the parties' briefs and the record below, it appears to the Court:
Claimant-Below, Appellant, Patricia Boone ("Ms. Boone"), filed an appeal with this Court based on a decision of the Industrial Accident Board ("Board") dated November 22, 2005. In its decision, the Board granted the Petition for Review of Employer-Below, Appellee, Syab Services (Syab), and terminated Ms. Boone's total disability benefits and awarded her partial disability benefits in the amount of $12.78 per week. Ms. Boone argues that: (1) the Board's failure to find that Ms. Boone is prima facie a displaced worker is contrary to law and unsupported by substantial evidence; (2) the testimony of the vocational rehabilitation worker was defective as a matter of law in that it did not establish that the listed jobs were appropriate for Ms. Boone; and (3) the Board's finding that Ms. Boone had voluntarily removed herself from the workplace was contrary to law and unsupported by substantial evidence, and such a finding would not, even if correct, disqualify an employee for total disability benefits. Conversely, Syab asserts that: (1) the Board did not err in finding that Ms. Boone did not meet her burden in establishing she was a prima facie displaced worker, (2) the vocational testimony in this matter was not defective as a matter of law and the Board properly relied upon that testimony in reaching its decision, and (3) Ms. Boone's contention that the Board erred as a matter of law by finding that she voluntarily removed herself from the workforce is without merit.
These are the salient facts: Ms. Boone suffered a compensable industrial injury on August 12, 2001 when she fell backwards and sustained a back injury while emptying a cleaning bucket. This fall resulted in a lower back injury. After a few years, Ms. Boone and Syab agreed that she was no longer totally disabled; however, she then elected to have spine surgery and was placed back on total disability pending that surgery. Subsequent to the surgery, Ms. Boone's back condition improved. As a result, Andrew Gelman, D.O., who is a board-certified orthopedic surgeon, opined that Ms. Boone is capable of working in at least a sedentary capacity. Dr. Ali Kalamchi also noted that Ms. Boone had improved since her operation. Dr. Kalamchi also recommended that Ms. Boone be limited to more sedentary positions, but the Board noted that his total disability slip of July 7, 2005, contradicted his progress notes.
Ganesh Balu, M.D., board-certified in pain management, testified on behalf of Ms. Boone and opined that she was not capable of working. He diagnosed her with residual post-laminectomy syndrome, lumbar radiculopathy, lumbar facet syndrome and left sacroiliac joint dysfunction. While he admits that Ms. Boone has improved following the November 2004 surgery, he disagrees with Dr. Gelman's opinion regarding Ms. Boone's work capabilities because she has significant problems with left lower extremity radicular pain.
Ms. Boone admits that her back pain is sixty percent better than it was before the surgery, but she testified that she still has problems with her left leg.
Barbara Stevenson, a senior vocational case manager, prepared a labor market study with Ms. Boone in mind. The survey contained eight positions for which Ms. Boone was qualified based on the fact that she had an eighth grade education level, she had work experience in housekeeping and she was limited to sedentary duty. Six of the jobs were classified as sedentary duty and two were classified as sedentary to light duty because they involved some standing or walking. The average weekly wage for the eight jobs listed on the survey was $300.38. Prior to her accident, Ms. Boone made $319.47 per week.
Based on the testimony of Ms. Boone, the physicians and Ms. Stevenson, the Board concluded that Ms. Boone's pain is at least sixty percent improved since the surgery, which it considered a dramatic change from her prior condition when she was determined to be totally disabled. The Board also accepted Dr. Gelman's opinion over that of Dr. Balu. Thus, the Board found that Ms. Boone is capable of working in a sedentary capacity. The Board also determined, based on Ms. Boone's testimony, that she had no intention of returning to work even if found to be physically capable of working.
The Board accepted the testimony of Ms. Stevenson and, consequently, held that Ms. Boone is not a prima facie displaced worker because she is only sixty-five years old, she has an eighth grade education level, she has a valid driver's license, she can read and write very well, she can cook and do laundry and she is able to function as an adult in today's society. The Board further concluded that Ms. Boone failed to prove that she was unable to secure employment because of her injury because she chose to remove herself from the work force. However, the Board did find that she is still partially disabled because she is limited to sedentary duty jobs. As a result, the Board awarded her $12.78 per week based on Ms. Stevenson's labor market survey. The Board also awarded Ms. Boone medical witness fees, but declined to award her attorney's fees because Syab had previously made an offer equal to what the Board ultimately awarded her.
For the reasons set forth below, Ms. Boone's appeal from the decision of the Board is denied.
Standard of Review
The review of an Industrial Accident Board's decision is limited to an examination of the record for errors of law and a determination of whether substantial evidence exists to support the Board's finding of fact and conclusions of law. Substantial evidence equates to "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." This Court will not weigh the evidence, determine questions of credibility, or make its own factual findings. Errors of law are reviewed de novo. Absent error of law, the standard of review for a Board's decision is abuse of discretion. The Board has abused its discretion only when its decision has "exceeded the bounds of reason in view of the circumstances." Additionally, "this Court will give deference to the expertise of administrative agencies and must affirm the decision of any agency even if the Court might have, in the first instance, reached an opposite conclusion." "Only where no satisfactory proof exists to support the factual finding of the Board may the Superior Court overturn it."Discussion
Ms. Boone's arguments will be discussed seriatim below.The Board Erred When it Failed to Find Ms. Boone a Prima Facie Displaced Worker:
The initial burden to sustain a petition to terminate total disability benefits is on the employer, who must demonstrate that the employee is not completely medically incapacitated from performing regular work. Here, the Board found that Ms. Boone was not totally incapacitated based on its acceptance of Dr. Gelman's opinion; thus, Syab met its burden.
Torres v. Allen Family Foods, 672 A.2d 26, 30 (Del. 1995).
Boone v. Syab Services, IAB Hearing No. 1198151 (Nov. 22, 2005), at 9.
The burden then shifted to Ms. Boone to establish that she is a displaced worker. A displaced worker is one who is "`so handicapped by 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.'" Further, "an employee may be totally disabled economically under Delaware's Worker's Compensation Law, although only partially disabled physically." However, the Board determined that she was not a prima facie displaced worker because the jobs listed in the survey were entry-level and did not require any education, experience or previous training and Ms. Boone had testified that she could read and write very well and was able to function in today's society.
Torres, 672 A.2d at 30.
Lister v. Fluor-Daniel Constr. Co., 1992 Del. Super. LEXIS 170, at *6-7 (citing Ham v. Chrysler Corp., 231 A.2d 258, 261 (Del. 1967)).
Id. at *7.
Boone, IAB Hearing No. 1198151, at 10.
Ms. Boone also had the opportunity to show that she was a displaced worker based on her reasonable, but unsuccessful, efforts to locate employment. But, in this case, Ms. Boone clearly stated that she had not looked for other employment and would not look for work even if the Board found she was physically capable of working. Therefore, Ms. Boone failed to establish that she was a displaced worker because the Board's decision was well-reasoned and supported by substantial evidence.
Torres, 672 A.2d at 30.
Ms. Boone also cited to three cases wherein employees were found to be displaced workers. Ms. Boone alleged that her situation was similar to those three cases. However, all three cases are clearly distinguishable. In Wilson v. Gingerich Concrete, the employee had a tenth grade education, but had been in special education classes. He could not read well, if at all. His wife had to accompany him if he was required to fill out forms. Consequently, the circumstances in Wilson are different from those in this case.
IAB Hearing Nos. 1214622 1215102 (Nov. 26, 2002).
In Sabo v. Pestex, Inc., the Superior Court reversed the Board's decision that the employee was not a displaced worker. However, in that case, the Board had determined that the employee's skills used to acquire his Commercial Drivers License were transferrable, even though he could not drive for more than forty-five minutes to an hour. Also, the Board did not explain what skills were transferrable and did not cite any evidence in the record that the employee had acquired any other skills. Thus, the court found that the Board's decision was not supported by substantial evidence. Here, I find that the Board's decision is supported by substantial evidence. Thus, Sabo is distinguishable.
2004 Del. Super. LEXIS 380.
The third case is Bureau for the Visually Impaired v. Lawrence, wherein the Superior Court affirmed the decision of the Board, which concluded that the employee was a displaced worker. That decision was based on the fact that the employee's hands were irritated to a fairly painful extent on a daily basis. Also, the employee was unable to read or write and was elderly. In the case sub judice, Ms. Boone testified that she was able to read and write very well. Therefore, the Board could properly find that she was capable of working in the positions listed in the job market survey.
1999 Del. Super. LEXIS 207.
Because the cases cited by Ms. Boone are inapposite, and the Board's decision is supported by substantial evidence, her first argument is unsuccessful.
Ms. Stevenson's Testimony was Defective as a Matter of Law:
Initially, it should be noted that the burden to establish that Ms. Boone is a displaced worker is on her, not Syab. The Board concluded that she did not establish that she was either prima facie displaced or displaced as a result of being unable to procure employment, despite making a reasonable effort. However, in the interests of thoroughness, this Court will address Ms. Boone's argument regarding the labor market survey.
Ms. Boone asserts that the labor market survey was defective because it did not establish that the listed jobs were appropriate for her. She relies on Abex Corporation v. Brinkley. Syab contends that Abex is distinguishable because in that case, the vocational expert simply testified that light duty work was generally available throughout the year in the Greater Wilmington area. Syab also argues that Ms. Stevenson considered all of the relevant factors and Ms. Boone could have provided her own vocational expert, but did not.
252 A.2d 552 (Del. 1969).
See Id. at 553.
In Abex, the Supreme Court opined, "[j]obs must be realistically `within reach' of the disabled person." Here, Ms. Stevenson took into account Ms. Boone's age, her eighth grade education, her employment history with Syab, her location and the limitations suggested by Dr. Gelman. She identified and reviewed each of the eight positions. Ms. Stevenson also spoke with each employer and determined that the jobs would be available to Ms. Boone. Even if Ms. Boone's argument that she cannot perform light duty work is accurate, six jobs still remain. Additionally, her contention that the survey was defective because it only considered Dr. Gelman's restrictions is also without merit because the Board accepted the testimony of Dr. Gelman. Therefore, the jobs are realistically within reach of Ms. Boone and her second assertion fails.
Id.
The Board's Finding that Ms. Boone had Voluntarily Removed Herself from the Workplace was Contrary to Law and Unsupported by Substantial Evidence:
Ms. Boone cites to Hirneisen v. Champlain Cable Corporation for the proposition that voluntary retirement does not disqualify an employee from receiving worker's compensation benefits. She argues that the Board improperly based its determination that she was not a displaced worker on the fact that she had not reasonably pursued other employment. She contends this decision was based on her reliance on Dr. Balu and Dr. Kalamchi's opinions that she was unable to work. Syab agrees that voluntary retirement does not disqualify an employee from receiving total disability benefits. However, Syab asserts that the Board conducted the proper analysis and correctly concluded that Ms. Boone was not a displaced worker.
2006 Del. LEXIS 17.
Hirneisen does hold that voluntary retirement does not disqualify an employee from receiving worker's compensation benefits. However, Hirneisen is not applicable to this case. In Hirneisen, the deceased employee had retired several years before his death from asbestos related lung cancer and had never filed a claim for worker's compensation. The action was brought after his death by his wife. Thus, the facts are clearly different. Here, Ms. Boone did not voluntarily retire prior to seeking disability benefits. Instead, she was injured, received benefits and attempted to defend against Syab's petition to terminate those benefits. The Board never claimed that her reliance on Dr. Balu and Dr. Kalamchi's opinions was erroneous. In fact, the Board noted that she was entitled to rely on their opinions until the Board resolved the conflict. Instead, the Board correctly applied the law and observed that Ms. Boone could establish that she was a displaced by showing that she made reasonable efforts to procure employment, but was unsuccessful because of her injury. The Board found that Ms. Boone did not attempt to find employment and, in fact, testified that she would not look for employment even if found to be physically capable of working. Consequently, the Board's conclusion that Ms. Boone failed to prove that she could not secure employment because of her injury because she removed herself from the workforce was supported by substantial evidence.
Boone, IAB Hearing No. 1198151, at 11.
See Sabo, 200 Del. Super LEXIS 380, at *10.
Based on the foregoing, Ms. Boone's appeal from the decision of the Board is denied.
IT IS SO ORDERED.