Opinion
C.A. No. 01A-03-003 HDR
Submitted: August 17, 2001
Decided: October 31, 2001
Upon Employer's Appeal from a Decision of the Industrial Accident Board AFFIRMED.
H. Garrett Baker, Esq. of Elzufon, Austin, Reardon, Tarlov Mondell, P.A., Wilmington, Delaware, for Employer Below-Appellant.
Andrea G. Green, Esq. and David A. Arndt, Esq. of Doroshow, Pasquale, Krawitz, Siegel Bhaya, Dover, Delaware, for Employee Below-Appellee.
OPINION
This is an appeal by an Employer from a decision of the Industrial Accident Board ("Board") which awarded worker's compensation benefits for an injury it concluded arose out of and in the course of the Claimant's work. The Employer argues on appeal that the Board erred because there is no causal connection between the employment and the injury. I find that the decision is supported by substantial evidence and free of legal error. Accordingly, it is affirmed.
I. BACKGROUND
On July 24, 2000, Claimant, Patricia Hamilton, suffered an injury while working for her employer, Delaware Transit Corp. ("DART"). At the time of the injury, Hamilton was employed by DART as a paratransit driver, responsible to transport elderly passengers and persons with disabilities. Her injury occurred at the Easter Seals facility in Dover, Delaware, where Hamilton was to pick up a passenger. As part of Hamilton's responsibilities she was required to go into the Easter Seals building and announce her arrival before the patient would be released. The distance between where Hamilton parked and the Easter Seals building included a curb that she traversed. When Hamilton stepped onto the curb she heard a pop in the back of her knee and experienced severe and excruciating pain. Hamilton has acknowledged that she did not fall, trip, slip, stumble or experience any untoward event.
On October 10, 2000, Hamilton filed a Petition for Compensation Due with the Industrial Accident Board (the "Board"). The Board conducted a hearing on the petition, on March 2, 2001. At the hearing, Hamilton testified about the uncontested facts surrounding the injury. The only issue before the Board was whether the injury arose from her employment.
Two medical doctors testified by deposition regarding the injury Hamilton sustained. One was Dr. Glen David Rowe, an orthopedic surgeon and Hamilton's treating physician. The other was Dr. Evan Crain, also an orthopedic surgeon, and he testified based upon his evaluation of Hamilton at the request of DART. The testimony of both doctors was that Hamilton suffered a tear in the posterior horn of her meniscus. The type and timing of the injury sustained was a likely result of stepping onto the curb as described by Hamilton. However, this type of injury could also occur during any normal walking activity whether at work or not. Dr. Rowe performed surgery on December 20, 2000, and Hamilton was released back to full duty work on February 1, 2001. The Board found Hamilton's injury compensable. It awarded Hamilton benefits for the time between the injury and the point that she returned to work. The Board also awarded attorneys' fees in the amount of the statutory maximum (the lesser of $2,250 or 30% of the award) and medical witness fees. DART then filed this timely appeal. II.
STANDARD OF REVIEW
On appeals from the Industrial Accident Board, the Superior Court must limit its scope of review to correcting errors of law and determining whether substantial evidence exists in the record to support the Board's findings of fact and conclusions of law. Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It is more than a scintilla of evidence, but less than a preponderance. On appeal, this Court may neither re-weigh the evidence, determine questions of credibility, nor make its own factual findings. The Court must give deference to "the experience and specialized competence of the Board," and must take into account the purposes of the Worker's Compensation Act.
Histed v. E.I. DuPont de Nemours Co., Del. Supr., 621 A.2d 340, 342 (1993); Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965).
Olney v. Cooch, Del. Supr., 425 A.2d 610, 614 (1981).
Id.
ILC of Dover, Inc. v. Kelley, Del. Super., C.A. No. 99A-02-002, 1999 WL 1427805 at *1, Witham, J. (Nov. 22, 1999).
Histed, 621 A.2d at 342.
III. DISCUSSION
The focus of this appeal is whether Hamilton's injury qualifies as "arising out of and in the course of employment." Most jurisdictions, including Delaware, have divided "arising out of" and "in the course of" employment into two elements. The two elements are not synonymous, but distinct, and both must be shown to exist and conjoin in a given case. The requirement that an injury occur "in the course of" employment relates to the time, place and circumstances of the accident. It covers those things that an employee may reasonably do or be expected to do within a time of employment, and at a place where he or she may reasonably be during that time. Both parties have agreed that this injury occurred during the course and scope of employment, therefore, no further discussion of this element is necessary. The requirement that an injury must "arise out of" employment is the point of contention on this appeal. The term is generally held to refer to the origin of the accident and its cause, and relates to the character and quality of the accident with reference to the employment. In Dravo Corp. v. Strosnider, the Supreme Court stated:
There clearly must be shown a causal relation between the injury and the employment, and that the injury arose out of the nature, conditions, obligations or incidents of the employment, or that a connection exists between the employment and the injury, by which the employment was a substantially contributing, but not necessarily the sole or proximate, cause of the injury.
Id.
DART argues that the Board has blurred the line between the two elements "arising out of" and "in the course of" employment. DART asserts that the facts in this case support only the "in the course of" element and not the "arising out of" requirement. To support its claim DART points to the fact that Hamilton stepped on the curb in a normal and everyday manner and received an injury during an activity that was in all respects common, everyday, normal and unremarkable. DART contends that because the activity of walking and the injury sustained could have just as easily happened when Hamilton was not working, the injury has no causal relation to her employment. The question raised by DART concerns the standard to apply when an employee is injured during a task that straddles a fine line between a function required by the job and a necessary normal everyday activity. Walking and stepping is something most people do everyday, but most job functions implicitly require this activity to complete a task. DART contends that walking and stepping is such a normal activity that the employment here should not be considered a substantial contributing cause of the injury. Delaware case law is instructive here. In Rose v. Cadillac Fairview Shopping Center Properties, Inc. an employee was raped after being abducted from a mall parking lot where the employer required her to park. An issue in Rose was whether the attack by an unknown third party arose out of her employment, because she was not engaged in any activity that benefitted her employer at the time of the attack. The Supreme Court found that the attack arose out of employment because the conditions of employment created an increased likelihood of attack. The Court stated: In addition, her work required her to arrive early, when the public would be less likely to be present and to park in a certain area of the lot. Thus, the conditions of her employment increased the likelihood of an attack of this nature. Consequently, there is a reasonable relation between the attack and her employment.
Del. Super., 668 A.2d 782 (1995).
Rose, 668 A.2d at 790.
Whether an injury arises out of employment has also been addressed in the context of an injury occurring on a trip that has both a business and a personal purpose. As stated in Storm v. Karl-Mil, Inc., the test in that context is "whether the employer exposed the employee to risk." Worded another way the test is "whether it is the employment or something else that impels the journey and exposes the traveler to its risks." In this case there is substantial evidence to support the Board's finding that Hamilton's employment obligated her to walk to the building to announce herself. Additionally, Hamilton's obligation to announce herself required that she traverse the curb upon which she was injured. Because Hamilton was on this journey for her employer, she was exposed to the risk of the curb and the injury she suffered. Thus Hamilton's injury is compensable because her employment was a substantial contributing factor to her injury. The Board's finding that her injury arose out of and in the course of her employment is supported by substantial evidence and it is free of legal error.
Del. Supr., 460 A.2d 519, 521 (1983) (citing Children's Bureau v. Nissen, Del. Supr., 29 A.2d 603, 607 (1942)).
Storm, 460 A.2d at 521.
IV. CONCLUSION
For the foregoing reasons, the decision of the Industrial Accident Board is AFFIRMED.
IT IS SO ORDERED.