Opinion
Civil Action No. 99A-09-001.
Submitted: May 23, 2000.
Decided: August 18, 2000.
Appeal from decision of Industrial Accident Board — Affirmed.
R. Scott Kappes, Esquire, Schmittinger Rodriguez, P.A., Attorney for Appellant, Michael Visnovsky.
Raymond L. Cobb, Esquire, Raymond W. Cobb, L.L.C., Attorney for Appellee, Wade Insulation, Inc.
MEMORANDUM OPINION
This matter is presently before the Court on appeal from a decision of the Industrial Accident Board ("Board") granting Wade Insulation, Inc.'s ("Employer's") petition for termination of benefits previously payable to Michael Visnovsky ("Claimant"). The sole issue raised by the Claimant in this appeal is whether the Board's finding that he did not conduct a reasonable job search following his release to work is supported by substantial evidence in the record and correct as a matter of law. Set forth below is the Court's decision on the matter.
STATEMENT OF FACTS AND NATURE OF PROCEEDINGS
Claimant is a 46 year old male who lives in Clayton, Delaware and was involved in a compensable industrial accident on September 9, 1988. The accident occurred while he was doing ceiling work and fell from a scaffold, injuring his knee. Prior to this accident, Claimant's employment had consistently been in the construction industry. Hearing Trans. at 27-28. He did, however, serve in the Army from 1973 to 1977.Id.
The Board, in its decision, summarized the Claimant's dealings with the Board after this accident as follows:
Claimant received total disability benefits until January 1990 and, starting in November 1992, he received 300 weeks of partial disability. In February 1998, Claimant filed a petition seeking total disability benefits and authorization for low back surgery. In June 1998, the Board denied total disability but granted the surgical authorization. In October 1998, Claimant underwent low back surgery and received total disability benefits for his recovery period following the surgery.
Bd. Dec. at 2.
Despite the surgery, the Claimant continues to experience pain. However, rather than a sharp pain that runs down his leg, as before the surgery, he now feels pain in the middle of his back. H.T. at 29. He also has problems with his hands, although it is not entirely clear whether these are causally related to the industrial accident. H.T. at 32-34.
On March 17, 1999, the Employer filed a Petition for Termination of Benefits seeking to terminate the Claimant's total disability benefits. The Board held a hearing on the matter on August 3, 1999. At the hearing, both parties presented evidence of the Claimant's current medical condition and how it would affect his ability to work, and the Claimant presented evidence relating to his search for gainful employment.
To support its petition, the Employer submitted the deposition testimony of Dr. Alan J. Fink who ultimately opined that the Claimant was able to return to work with some restrictions. Pertinent to this appeal is the following testimony:
(Upon direct questioning by the Attorney for the Employer he testified:]
Q: Could you tell the Board what opinions you have with regard to his physical condition?
A. . . . Mr. Visnovsky has not had significant change since he was last seen in April of 1998 with the exception that he felt that he had resolution of his right leg pain. I believe the patient could work full time in a sedentary position as previously stated with a restriction that he could not lift or carry more than 10 pounds on occasion. Dep. Trans. at 8-9 (August 2, 1999).
Q: And you saw him on January 26, 1999?
A: Yes.
Q: And at that time you believed he was capable of working. Is that correct?
A: Yes.
Q: And you continue to believe, absent some change of condition, that he would be capable of working today?
A: Yes.
Q: Doctor, in terms of his return to work, would it be normal that there would be a gradual increase in his work? In other words, he would not start out at a 40-hour-a-week job. He would start out at a lesser number of hours and then gradually increase to 40 hours per week?
A: I think that would be very reasonable.
Q: What would be the normal amount of hours he should start working?
A: I think 20 and then every six weeks increasing by 10 hours.
Q: And you're assuming he's tolerating that work?
A: Right, if he was tolerating it Id at 11-12.
[Upon cross-examination by Claimant's counsel, Dr. Fink testified:]
Q: Doctor, is Mr. Visnovsky about as disabled as you can be with still being able to work?
A: Well, he's close.
Q: Close?
A: (Witness indicating affirmatively.) Yes. Id. at 15.
[Upon Re-direct examination by Employer's counsel, Dr. Fink testified:]
Q: Dr. Sugarman also indicated that he should have limited bending, squatting, and crouching. Would you agree with that?
A: Yes.
Q: Would there be a need for Mr. Visnovsky to be able to change positions frequently or would it be —
A: Well, he could sit. And as long as he can, you know, get up and sit down and change his weight, that should be adequate.
Q: And essentially what you are describing is a sedentary position?
A: Yes.
Q: And if he had, what we would call a desk job, that's something as long as he could get up and move around a little bit, that would be something that he should be able to tolerate?
A: I would think so. Id. at 19-20.
The Claimant, in opposing the Employer's Petition for Termination, presented the testimony of Dr. Michael G. Sugarman, M.D. concerning the Claimant's condition and ability to work. Dr. Sugarman testified as follows:
[On direct examination by Claimant's attorney, he testified to the following:]
Q: Now Doctor, could you tell the Board members what your opinion is with regard to Mr. Visnovsky's current ability to work?
A: I don't think he could work more than a few hours a day if that. I think that if he were to work or give it a try, it would need to be something that would enable him to change position frequently. It couldn't be a job where he would be forced to be sitting for a prolonged period or standing or walking for a prolonged period of time. I think that beyond that, it would be fair to give him a trial. I don't know that he could work more than a couple of hours initially. It may be worthwhile putting him through a work tolerance program and a work hardening program to see if that might ready him for employment.
Q: Doctor, you have not formally released Mr. Visnovsky to return to work, is that correct?
A: I have not, that's correct.
Q: But what you're telling us today is that it may be appropriate for him to try something on a couple of hours a day basis for some type of trial period to see how he makes out?
A: Yes. of course realize that he may not be able to succeed at that and as long as everybody was aware of that, I would not have a problem with that.
Q: Would this ability to go on a trial period of part-time work, would that have been effective as of your last visit of July 22 (1999)?
A: Yes.
Q: Okay, and I mis-spoke, I do have one more question. To the extent that Mr. Visnovsky is willing to go back on a trial part-time basis, what would his actual restrictions be other than the limited hours?
A: Having the ability to change positions frequently; I would not want to see him lifting more than 30 to 40 pounds at this juncture. I would like to see his bending, squatting, crouching limited. That's about it off the top of my head. Dep. Trans. at 26-28 (July 26, 1999).
[Upon cross-examination by Employer's counsel, Dr. Sugarman testified:]
Q: Doctor, you've offered the opinion today that this gentleman is capable of working, is that correct?
A: I have offered the opinion that he is capable of a trial of work, but not that; he is capable of working.
Q: Is that the normal procedure that you employ when returning someone post-diskectomy and fusion is that they should start out on a lessor [sic] than 40-hour week beginning to work to see if they can tolerate it, and assuming they can tolerate it, increase it up to a 40-hour week?
A: Yes.
Q: Is there any reason this gentleman was, on an objective basis, incapable of working at an earlier time other than you indicated at the last visit you had released him to work?
A: I think it would depend on what his job entailed. I would not want to see him in any physical labor well up to a year or two after this surgery, but certainly within the first six months, perhaps a light duty position at the six-month mark could be attempted, but I think it varies from individual to individual. Some folks you can start at three months depending on what the job is and other individuals at nine or later. You know, everybody is a little bit different.
Q: With this gentleman would you say that at six months post-surgery he would have been capable of trying to start back at a light duty position?
A: With regard to his back only, perhaps. If he had asked me I would have probably given him permission to try. Id. at 43-47.
Q: Okay. From a medical standpoint when you would restrict someone from, I think you said you would not — you wanted him to be able to change positions and avoid frequent bending, squatting, crouching?
A: Yes.
Q: Sitting for periods of time?
A: Yes.
Q: Walking for periods of time?
A: Yes.
Q: Could you give the Board an estimate as to what you think would be reasonable in terms of the period he could walk, sit or stand?
A: [think it would be reasonable to ask him to sit for 15 minutes at a time; to stand for 5 to 10 minutes at a time; and to walk for the same period, 5 or 10 minutes at a time. Id. at 53-54.
[On re-direct, Claimant's Counsel elicited the following testimony:]
Q: Mr. Visnovsky never was released until his last visit, July 22nd, correct?
A: Well, I haven't released him even at the July 22nd I mean, he has no knowledge of me releasing him. I would feel that, you know, I should probably have that discussion with him before formally releasing him. Id. at 55-56.
At the hearing, in addition to the evidence concerning the current status of his injuries and his ability to return to work, the Claimant also presented evidence of his search for employment. The record before this Court contains both documentary and testimonial evidence of a job search that goes back as far as May 3, 1998. Thus, because the hearing was held in August, 1999, the evidence shows a search of just over one year's duration.
The documentary evidence in the record consists of photocopied sections of the classified ads from the newspaper that the Claimant's attorney put together and provided to him on a regular basis. The Claimant testified that as he received these lists, he would contact the employers about the jobs available. On the sheets included in the record, the Claimant had made handwritten notes concerning the results of his contact next to a substantial number of the individual ads.
The Claimant further testified that he would contact the employers in several ways. In some cases, he only called the prospective employer; in others, he would go to the employer's premises or send a resume. The Claimant testified that he has an incomplete memory of exactly which places he sent resumes to and those that he visited. He did, however, specifically recollect visiting Wal-Mart and Lowes.
During his testimony, the Claimant focused on several jobs that he inquired about in the months leading up to the hearing. One such job was for a laundry retail company as a route salesman. This job would require delivering and retrieving uniforms and involved some heavy lifting. H.T. at 44. Another job he inquired about was as a grounds person which would involve mowing, trimming tree limbs, and other property maintenance duties. The third job involved working with horses on a breeding farm. H.T. at 45.
The Claimant acknowledged that his physical limitations precluded him from realistically being able to complete the duties required by many of the jobs about which he inquired. When asked why he contacted employers with jobs clearly beyond his limitations, the Claimant stated that he did so in the hope that the potential employer had other unadvertised jobs for which he was qualified. Id. The Claimant testified that he contacted over 100 employers about jobs in the year preceding the hearing Id. Ultimately, however, the Claimant received no offers of employment from the ads provided to him by his attorney.
In addition to the ads provided by his attorney, the Claimant also, on his own initiative, contacted several employment agencies, friends, and family members about potential job opportunities. He testified that the staffing agencies were looking for persons with either technical backgrounds or who could do heavy labor in a factory setting. H.T. at 42. Thus, he was unable to procure employment through an employment agency. The family and friends he approached were in the construction and restaurant business and did not have jobs available with his restrictions. H.T. at 43-44.
Finally, when asked by the Employer's attorney, the claimant testified that he was "pretty sure" that he did apply for several jobs that were in the nature of a hotel desk clerk although he could not recall with whom. H.T. at 66-67.
Following the hearing, the Board issued its decision granting the Employer's Petition to Terminate Benefits. In doing so, the Board found that, based on the testimony of both doctors, the Employer had established that the Claimant was physically capable of returning to work. Moreover, the Board found that the Claimant was not a prima facie displaced worker because he can read and write, communicates relatively well, and, despite his restrictions, can lift thirty to forty pounds. Finally, the Board found that the Claimant had not conducted a "genuine job search designed to secure employment." The Board cited several factors leading it to this conclusion. One factor was the fact that the Claimant was looking for jobs shortly after his surgery when, by all accounts, he was not able to work. Moreover, the Board appeared troubled by the fact that the Claimant was inquiring into jobs for which he clearly was not qualified based on his restrictions. The Board also nosed that he did not appear to follow up on job prospects where appropriate. For instance, the Board highlighted a job opening as a "construction manager assistant" for which the Claimant appeared particularly well-suited. Here, his ad list has a note saying "callback," but there is no evidence the Claimant pursued this job any further. Finally, the Board found that the Claimant's recollection of his job search was spotty and vague.
The Claimant filed a timely appeal of the Board's decision to this Court and argues that the Board erred as a matter of law in finding that he had failed to perform a reasonable job search and that its decision is not supported by substantial evidence in the record. The Employer did not submit a brief in this appeal and on May 23, 2000, this Court ordered, pursuant to Rule 107(e), that the case be decided on the pleadings filed.
DISCUSSION Standard of Review
The duty of this Court when acting on an appeal from the Board is to determine whether the Board's decision is supported by substantial evidence and is free from legal error. Johnson v. Chrysler Corp., Del. Supr., 21.3 A.2d 64, 66 (1965); Devine v. Advanced Power Control, Inc., Del. Super., 663 A.2d 1205, 1209 (1995) (citing General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960)); General Motors v. Jarrell, Del. Super., 493 A.2d 978, 980 (1985). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Indus., Inc. v. Wilmington Stevedores. Inc., Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986). The Superior Court, when sitting as an appellate court, does not weigh the evidence, determine questions of credibility, or make its own factual findings.Johnson v Chrysler Corp., 213 A.2d at 66. It merely determines if the evidence is legally adequate to support the agency's factual findings. 29 Del. C. § 10142 (d). In reviewing the record for substantial evidence, the Court will consider the record in the light most favorable to the party prevailing below. General Motors Corp. v. Guy, Del. Super., C.A. No. 90A-JL-5, Gebelein, J. (August 16, 1991). As to legal errors, the Court's review is plenary. Brooks v. Johnson, Del. Supr., 560 A.2d 1001, 1002 (1989).
Analysis
The Delaware Supreme Court has adopted the following as the rule of law when evaluating an employer's petition to terminate total disability benefits:
After filing a petition to terminate an employee's total disability benefits, a former employer bears the initial burden of demonstrating that the employee is no longer totally incapacitated for the purpose of working. Governor Bacon Health Center v. Noll, Del. Super., 315 A.2d 601, 603 (1974). If the employer satisfies that burden, the employee must show that she is a "displaced worker." A worker is displaced if she is "so handicapped by a compensable injury that [s]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 [s]he is to be steadily employed." Ham v. Chrysler Corp., Del. Supr., 231 A.2d 258, 261 (1967). The employee's "physical impairment, coupled with other factors such as the injured employee's mental capacity, education, training, or age" may constitute a prima facie showing that the employee is displaced. Franklin Fabricators v. Irwin, Del. Supr., 306 A.2d 734, 737 (1973). However, if there is insufficient evidence for the employee to show that she is prima facie displaced, she is a displaced worker and deemed "totally disabled" for the purposes of the Delaware Workers' Compensation Law, 19 Del. C. § 2101-2397, if she "has made reasonable efforts to secure suitable employment which have been unsuccessful because of the injury." Franklin Fabricators, 306 A.2d at 737. Assuming that the employee can demonstrate that she is displaced, the burden shifts back to the employer to show the availability of work within the employee's capabilities. Id.Torres v. Allen Family Foods, Del. Supr., 672 A.2d 26, 30 (1995). See also, Keeler v. Metal Masters. Inc., Del. Super., C.A. No. 97A-06-002, Terry, J. (Dec. 31, 1997) Opinion at 6.
Claimants may meet their burden in two ways. First, as noted above, the Claimant may prove that employers would not hire the Claimant because of the injury. In the alternative, the Claimant may prove that his employment efforts were unsuccessful after notifying prospective employers of his physical limitations. "In the latter case, an inference arises that there is no reasonably stable market for the claimant's services." Adams v. Shore Disposal. Inc., Del. Super., C.A. No. 96A-10-001, Lee, J. (July 29, 1997) Mem. Op. at 10 (citing Schmitt v. Cecil Vault Memorial Co., Del. Super., C.A. No. 82A-NO-12, Bifferato, J. (August 17, 1983)), rev'd on other grounds Adams v. Shore Disposal, Del. Supr., 720 A.2d 272 (1998).
The precise characteristics of a "reasonable job search" have never been established with any degree of certainty. Rather, in general, Courts have found that "a reasonable job search entails a dingent, good faith effort to locate suitable employment in the vicinity." American Original Corp. v. Bailey, Del. Super., C.A. No. 91A-08-002, Lee, J. (June 19, 1992) Mem. Op. at 7. Moreover, "the test of [a] claimant's good faith effort involves an evaluation of [the claimant's] sincerity and credibility." Lasko v. State of Delaware, Del. Super., C.A. No. 83A-JA-7, Walsh, J. (Oct. 21, 1983) Let. Op. at 5.
Based on the foregoing body of law, the first step in this analysis would require the Court to determine whether the Board's decision that the Claimant is no longer totally disabled is supported by substantial evidence and free from legal error. The Claimant did not challenge this finding on appeal, and in any case, there is substantial evidence in the record to support the Board's finding on this issue. The Board was presented with the opinions of two medical experts who both opined that the Claimant was capable of returning to work. Dr. Fink states that the Claimant was eligible to return to work as of January. 1999, and Dr. Sugarman stated the same in his July 1999 deposition. Both Doctors were also in general agreement that the Claimant should limit his work time in the beginning and adjust it upward until he is ready to work full-time. Moreover, both Doctors gene rally agree on the Claimant's physical restrictions. For these reasons, the Board's determination that the Claimant is able to return to work is supported by substantial evidence and free from legal error.
The next step, would be to determine whether the Claimant has shown that he is a displaced worker because he is either prima facie displaced or has made a reasonable job search that failed because of his work injury. The Board found that the Claimant was not a prima facie displaced worker. Again, the Claimant does not challenge this finding on appeal, and in any case, this finding is supported by substantial evidence in the record. The Claimant is relatively young at forty-one years old, and based on his testimony and notes on his job search materials, possesses good communication skills. Moreover, while he has some physical limitations, his treating physician would allow him to lift up to forty pounds. The Claimant, as a whole, is not so impaired that he will need to have a specially-created job in order to work. He merely needs to find a job within his restrictions. The Board's decision on this issue is supported by substantial evidence and free from legal error.
The only issue in this appeal is whether the Board's decision that the Claimant has not completed a reasonable job search is supported by substantial evidence and is free from legal error. While, at first blush, the decision appears to be supported by substantial evidence, this Court finds that it is not free from legal error.
A reasonable job search will be found if the Claimant engaged in a dingent, good faith effort to find a job suitable for his restrictions. The record appears to reflect a very dingent effort on the part of the Claimant in that he at least called a large number of employers about advertised jobs. The problem, however, is that much of this effort appears to have been wasteful because many of those jobs were clearly beyond his capabilities. For instance, a person with his restrictions will not likely be successful as either a grounds keeper or on a horse farm. A job search is much more "reasonable" where a claimant, with or without the assistance of counsel, has formed and conducted a search that is more narrowly tailored to the particular claimant's skills and restrictions. The quality of the search is more important than the sheerquantity of contacts with potential employers.
The Board was also concerned that there was no record of any follow-up on a job as a construction manager assistant for which he was particularly suited. See Schmitt v. Cecil Vault Memorial Co., Del. Super., C.A. No. 82A-NO-12, Bifferato, J. (August 17, 1983) (Let. Op.) (The Court found a reasonable job search where the claimant looked for jobs "primarily in areas where he felt he was competent considering his limitations, and that he was unsuccessful.") and Newcomb v. Industrial Accident Bd., Del. Super., C.A. No. 89A-MY-2-1, Gebelein, J. (August 14, 1991) (The Court upheld a Board decision finding an unreasonable job search where the claimant applied for jobs "inappropriate for her situation."). These concerns would go to the "good faith" of the Claimant in conducting a reasonable search. Finally, the Board noted that the "Claimant was vague when asked about certain details regarding his search. He could not recall which employers he actually visited and he could not recall if [he] had applied for any hotel desk clerk positions." Bd. Decision at 8. Because this determination of "good faith" involves a determination of the Claimant's sincerity and credibility, these determinations are generally the province of the Board. Here, the record does contain substantial evidence to support the Board's finding that the Claimant has not completed a reasonable search for suitable employment.
Despite the fact that there, is substantial evidence to support the Board's finding that the Claimant did not complete a reasonable job search, this determination is not free from legal error. In a recent Supreme Court decision, the Court reiterated that "[e]ven assuming that claimant could, if absolutely necessary, physically maintain a job of some sort, he nevertheless remains "disabled" from the viewpoint of workmen's compensation so long as his treating physician insists that he remain unemployed. . . ." Gilliard-Belfast v. Wendy's Inc., Del. Supr., ___ A.2d ___, No. 9, 2000, Holland, J. (June 12, 2000) at 8.
In the present appeal, the Claimant's treating physician testified, eight days before the hearing, that he had never actually released the Claimant to work nor had he discussed it with the Claimant. He did, however, also testify that he believed the Claimant could return to work, albeit slowly. Thus, under the Wendy's case, the earliest the Claimant could have been deemed released to work was eight days prior to the hearing before the Board. This raises the theoretical problem of whether the Claimant could, under even the best of circumstances, conduct a reasonable job search in so short a time. This Court finds that the Claimant could not and that the Board erred as a matter of law by considering evidence from a job search conducted before the Claimant was released to work.
In all fairness to the Board, this Court notes that the Wendy's decision was released well after the Board's hearing, and this rule of law, while first expressed thirty years ago, was not brought to the forefront until just recently.
The Court is cognizant that this is a substantial departure from historical practice and that to find the Claimant here did not have to begin ajob search until he was released for work may compel employers to adopt a two-tiered system to force employees out of the worker's compensation system. First, the employer would have to seek a determination that the employee is' able to return to work. Then, the employee would need to be given a reasonable time to conduct a reasonable search for suitable employment. Finally, the employer would have an opportunity to question the reasonableness of the job search. UnderWendy's, this appears to be the current framework under which termination of benefits proceedings will be conducted from here forward.
CONCLUSION
This Court affirms the Board's findings that the Claimant is able to work and is not a prima facie displaced worker. However, this Court reverses the Board's decision that the Claimant did not conduct a reasonable job search. This was an error of law. Because the Claimant was able to work, at the earliest, only eight days prior to the hearing, there was insufficient time for him to conduct either a reasonable or unreasonable search for employment. Moreover, this Court rules that in any subsequent proceedings in this action, the time period for which the Claimant's job search will be evaluated for its reasonableness shall begin to run from the date of this opinion. That time period shall continue for a time reasonably sufficient for the Claimant to conduct, in good faith, a narrowly tailored job search reasonably calculated to secure employment in a position that accommodates his restrictions.
Considering the foregoing, the Board's decision is Affirmed in part and Reversed in part.