Opinion
C.A. No. 98A-02-012-RSG
Date Submitted: August 4, 1998
Date Decided: January 7, 1999
OPINION AND ORDER
1. This is the Court's decision on Appellee Johnnie Haines ("Claimant")'s Motion to Affirm the decisions of the Industrial Accident Board ("Board") dated June 15, 1995 and January 7, 1998 awarding Claimant sustained lead toxicity which rendered claimant totally disabled for a period of time claimed. For the following reasons, Claimant's Motion to Affirm is DENIED.
2. Claimant contends that he sustained an occupational disease and was totally disabled from September 18, 1992 to October 7, 1992, and again from October 9, 1992 to June 27, 1993. He alleges that he contracted lead toxicity through his employment with Johnson Controls, Inc. ("Employer"). Employer denied compensability on two grounds: (1) the medical evidence did not establish that Claimant suffered from a level of lead toxicity which could render him disabled; and (2) Claimant failed to establish that any condition of his employment caused him to suffer from lead toxicity.
Claimant began working for employer in 1983. He was 32 years old at the time of the first hearing on June 15, 1995. At the hearing, he testified that he suffered from hand and stomach problems, night sweats, chest pains and migraine headaches during his employment. Claimant's family doctor first diagnosed the symptoms as lead poisoning in September, 1992. Claimant received medication and visited a consultant.
Employer dismissed Claimant in October, 1992. Claimant then obtained a job in construction in July, 1993 upon receiving advice from his family doctor that he no longer work with lead. Employer re-hired Claimant on November 13, 1994.
3. Claimant filed a Petition to Determine Compensation Due, claiming that Employer was responsible for causing him lead toxicity, an occupational disease. The Board conducted a hearing on June 15, 1995 and concluded that Claimant was temporarily totally disabled from September 9, 1992 to October 7, 1992 and again from October 9, 1992 to June 27, 1993 and that he was entitled to have his reasonable medical expenses, his reasonable medical witness fees and his reasonable attorney's fees taxed as costs against Employer.
4. Employer appealed the Board's decision to this Court, alleging that: (1) the Board committed legal error because it failed to apply the proper standard in making its determination that any disease or disability sustained by the Claimant was caused by his work; (2) no causal connection was established between Claimant's blood lead levels and any occupational disease; (3) the Board's determination was against the manifest weight of the evidence based on unrebutted testimony that Claimant had worked during the time of claimed total disability; and (4) the Board erred in rejecting the testimony of one of the Employer's expert medical witnesses. By order dated September 19, 1996, this Court reversed the Board's June 15, 1995 decision. This Court remanded the case for further proceedings based on the Board's failure to apply the correct legal standard in determining whether any disability suffered by the Claimant was caused by the Claimant. Because of this Court's determination of error on the first issue raised by the Employer on appeal, this Court specifically declined to consider the legal sufficiency of the medical evidence offered by the Claimant.
5. On remand to the Board, the Employer moved for a new hearing. The Board refused to grant a new hearing, and advised the parties that it would consider the matter on the record and without further argument or additional evidence. On January 7, 1998, the Board issued its Opinion on remand and acknowledged the inaccurate legal standard set out in its Statement of Determination, but opined that its primary function is to be finder of fact. The Board stated that although it did not cite the correct standard when it analyzed and deliberated in this matter, it nevertheless had the correct standard before it. The Board announced that, despite the Superior Court's reversal of its Statement of Determination, its conclusion is unchanged.
Employer moved for a new hearing pursuant to § 2350(b) of the Workers Compensation Act which expressly provides that a cause is remanded to the Board for rehearing and that "the procedure and rights of the parties shall be the same as in the case of the original hearing before the Board."
6. Employer has appealed to this Court on the following grounds: (1) that Employer was entitled to a new hearing on remand pursuant to the Workers' Compensation Act and (2) that the medical evidence presented at the hearing was insufficient to support a finding that Claimant sustained an Occupational Disease. In response, Claimant filed a motion to affirm pursuant to Superior Court Civil Rule 72.1(b).
Rule 72.1(b) reads, in full:
(b) Motion to Affirm: Within 10 days after receipt of appellant's opening brief; appellee may, in lieu of a brief; serve and file a motion to affirm the order, award, determination, or decree or part thereof appealed from. The filing of the motion tolls the time for filing of appellee' s brief The sole ground for such motion shall be that it is manifest on the face of appellant's brief that the appeal is without merit because:
(1) The issue on appeal is clearly controlled by settled Delaware law;
(2) The issue on appeal from a court is factual, and clearly there is sufficient evidence to support the jury verdict or findings of fact below;
(3) The issue on appeal from a commission or board is factual, and clearly there is substantial evidence to support the findings of fact below; or
(4) The issue on appeal is one of judicial or administrative discretion, And clearly there was not abuse of discretion. The motion to affirm shall state the ground or grounds on which it is based together with citation of authorities and record references to evidence relied upon. It shall not be a brief and shall not contain argument. There shall be no briefing, argument or response to the motion unless requested by the Court. If the motion to affirm shall be granted by the Court, an order or opinion will be entered affirming the order, award, determination, or decree or part thereof is appealed from. If the motion shall be denied, the appellee's brief will be due within 20 days after such denial, and the appeal will proceed through briefing, oral argument and disposition as provided by these rules.
7. The Supreme Court and this Court have repeatedly emphasized the limited appellate review of the factual findings of an administrative agency. The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. It is within the exclusive purview of the Board to determine and weigh the credibility of witnesses and the Court will not disturb these findings. The Court merely determines if the evidence is legally adequate to support the agency's factual findings.
General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960); Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66-67(1965).
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battisa v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), app. dism., Del. Supr., 515 A.2d 397 (1986).
Johnson v. Chrysler, 213 A.2d at 66.
Starkey v. Unemployment Ins. Appeal Bd., Del. Super., 340 A.2d 165, 166 (1975), aff'd 364 A.2d 651 (1976).
8. On appeal, this Court may grant a motion to affirm pursuant to Rule 72.1 if"it is manifest on the face of appellant's brief that the appeal is without merit." The issue on appeal is considered to be without merit if it is clearly controlled by Delaware law or if the it is factual and supported by the findings of fact below.
9. The law in this area is not well-settled in favor of the Appellee.
10. Based on the foregoing, Claimant's Motion to Affirm the decision of the Industrial Accident Board is DENIED. Claimant-Appellee is required to submit an answer to Employer-Appellant's opening brief within 20 days, and the appeal will proceed through briefing and disposition as Superior Court Rules provide.
IT IS SO ORDERED.
The Honorable Richard S. Gebelein