Opinion
C.A. No. 98A-02-008 CHT.
Date Submitted: October 21, 1999.
Date Decided: January 13, 2000.
On appeal from the Industrial Accident Board
Donald E. Marston, Esquire, Sullivan Marston, P. A., 5301 Limestone Road, Suite 214, Wilmington, Delaware 19801, Attorney for the Appellant.
Robert W. Ralston, Esquire, 10 East 13th Street, P. O. Box 1296, Wilmington, Delaware 19899, Attorney for the Appellee.
OPINION AND ORDER
The matter before the Court concerns an appeal by Richard Watters ("Claimant") from the January 9, 1998 decision of the Industrial Board which granted the petition of the E. I. Dupont de Nemours Company ("Employer") to terminate all disability benefits which he had been receiving.
FACTS
The Claimant was employed by the Employer as an employee assistance consultant. His duties consisted primarily of entering data relative to treatment plants into a computer. As a result of this activity which he performed on the average of five hours per day, the Claimant began to experience pain and related problems in his arms and wrists. This condition was diagnosed in October, 1993 as bilateral carpel tunnel syndrome. The Employer did not dispute the injury and agreed to pay total disability benefits pursuant to an agreement entered into with the Claimant in that regard.
On April 28, 1997, the Employer petitioned the Board to review the agreement and terminate the total disability benefits that were being paid. The Claimant did not deny that he was no longer totally disabled but petitioned instead for partial disability benefits occasioned by the continued effects of the bilateral carpel tunnel syndrome. A hearing was held before the Board on November 17, 1997. Testifying on behalf of the Claimant were Dr. Pierre L. LeRoy, M. D. and the Claimant himself The Employer called no witnesses on its behalf
Dr. LeRoy, a neurosurgeon, testified that the Claimant was referred to him and has been treated six times since November 1996 for bilateral carpel tunnel syndrome. He indicated that although he did not perform them, the Claimant underwent three surgeries, June 19, 1996, July 22, 1966 and October 10, 1996. Bd. Hr'g at 7-9. After the surgeries, the Claimant continued to have the same or similar complaints. Dr. LeRoy opined that repetitive motion would increase the Claimant's risk of recurrence and advised against repetitive wrist and upper extremity motion as well as receive ongoing medical care for the foreseeable future.Id. at 11-13. In November 1996, Dr. LeRoy determined that the Claimant was totally disabled. That disability continued until March 1997 when he released the Claimant to return to part-time work as a teacher to the extent that he could tolerate.Id. at 14-16. He could not return to his prior employment with the Employer because of the nature of the work. That employment formally ended as a result.
In addition to his employment with the Employer, the Claimant had been employed as a teacher at the Philadelphia Community College since 1981. That employment was limited by an employment contract between the union representing the faculty and that college to one three-credit course per semester or two courses per year. The Claimant taught a course in drug and alcohol abuse treatment and was paid $1,450 per course. No keyboarding or computer work was required. This employment was interrupted by the Claimant's surgeries and had been resumed without further interruption since May, 1997. In terms of his educational background, the Claimant had obtained a bachelor's degree in psychology and a master's degree in health education. He also obtained a doctorate in education from Temple University. The work on the doctorate was completed in 1992. It was required by the Employer as a part of the job formerly held by the Claimant.
Since the Claimant's separation from the Employer, he applied on several occasions to teach at colleges in Pennsylvania (Temple, La Salle and Philadelphia Community College), and in Delaware (Wilmington College) in search of full time work. However, his professional background and degree in education limited him to teaching community service courses. Responses to his inquiries were either that there was no full time employment available or that he did not qualify for the work that was available. There was no indication that the bilateral carpel tunnel syndrome was a factor in his inability to secure work. Nor was there any testimony as to what a full time professor did in terms of duties or made in terms of salary.
At the conclusion of the hearing, the Board found that the Claimant was no longer totally disabled despite permanent restrictions and the Claimant was able to work full-time as a college professor because of his education and experience. Bd. Dec. at 6. The Board also found that the Claimant's earning capacity was not diminished because of his restrictions since he was capable of full-time work as a professor and his earning capacity as a professor was higher than when he was employed with the Employer. Id. at 7. To be precise, the Board stated:
. . . Claimant is credible in his description of his carpal tunnel symptoms, but the Board believes that he is capable of working in a full time capacity as a technical and community college faculty member based on his doctorate degree and experience. Although the Board finds that the Claimant can no longer return to his former employment which involved computer data entry, he can work as a professor. The union agreement at Philadelphia Community College does not relate to his injury and does not prevent him from seeking a full time position elsewhere. The Board must examine the issue of partial disability to see if Claimant suffers from diminished earning capacity.
In the past the Claimant worked for eighteen years as a teacher while working at his full time employment. The Board believes that the Claimant can work full time for 12 month/year [sic] as long as he avoids repetitive duties such as keyboarding. Employment as a professor would not aggravate these symptoms.
The Board used its own experience and relied on 14 Del. C. § 9219, to determine that Claimant's earning capacity with a doctorate degree and over 16 years of experience is in excess of $50,000 compared to his DuPont Company wage of $48,000. Claimant has no loss of earning capacity resulting from his work restrictions.
The Claimant filed the instant appeal on February 5, 1998, arguing that the Board erred as a matter of law and fact and/or abused its discretion in determining that he sustained no loss of earning capacity. The Employer argues that there is sufficient evidence in the record to support the Board's decision. That which follows is the Court's resolution of the issues so presented.
DISCUSSION
This Court's function, when deciding appeals from the Industrial Accident Board, is limited to determining whether the Board's decision is supported by substantial evidence, and free from legal error. Stoltz Management Co. v. Consumer Affairs Bd., Del. Supr., 616 A.2d 1205, 1208 (1992); and 29 Del. C. § 10 142(d). Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.Street v. State, Del. Supr., 669 A.2d 9, 11 (1995). This Court does not act as a trier of fact and will not substitute its judgment for that of the Board. Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965). The Court defers to the experience and specialized competence of the Board and reviews the record to determine whether the Board could have fairly and reasonably reached its conclusion. 29 Del. C. § 10142 (d); and National Cash Register v. Riner, Del. Super., 424 A.2d 669, 674-75 (1980). The Court reviews 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).
In essence, the Board concluded that the Claimant was no longer totally disabled and that he could not, based upon his work-related injuries, return to his job with the Employer given the nature of the duties associated with that job. With those findings, neither party has found fault. The controversy begins with the further findings that the Claimant can engage in teaching as a college professor on a full time basis and that the compensation he would be able to earn would exceed what he earned with the Employer. No evidence was presented by either party concerning what a full time college professor with the professional and educational background possessed by the Claimant would earn at the time of the hearing before the Board. Instead, the Board sua sponte, raised and relied on 14 Del. C. § 9219, to determine that the Claimant could earn in excess of $50,000 if he taught full time on the college level.
Having reviewed the record, the Court must conclude that there was substantial evidence in the record to support the Board's findings that the Claimant was no longer totally disabled and that he was capable of engaging in full time employment as a college professor. The Claimant did not dispute the former conclusion but takes issue with the latter. His argument in that regard simply is not persuasive given the testimony of Dr. LeRoy and the testimony of the Claimant himself The medical evidence is capable of being read either way. It is the Claimant's testimony which discussed his efforts at seeking full time college level teaching positions and lack of success which was either due to the lack of available positions generally or for someone with his professional background. Simply put, if the Claimant was not capable of working full time, why would he be looking for full time employment. This, however, does not end the controversy.
More problematic for the Employer is the Board's determination concerning what a full time college professor could earn without any evidence having been submitted by the parties in that regard, and going on to conclude that the Claimant did not suffer a partial loss of earning capacity as a result. In doing so, the Claimant, in substance, argues that the Board erred both as a matter of fact because there was no evidence to support its conclusion, and erred as a matter of law in drawing a legal conclusion based on evidence outside the record. The Court agrees.
Generally speaking, the law, as stated above, is clear. The Board's decision will stand if it is supported by substantial evidence in the record and is free from legal error as stated.Supra at 4. However, while the Board can use its experience and/or expertise to evaluate the evidence before it, the Board can not use the same to create evidence and make issue dispositive decisions based thereon. Such was the substance of the holding reached by the Delaware Supreme Court in Turbitt v. Blue Hen Lines. Inc., Del. Supr., 711 A.2d 1214 (1998). In that case, the Board determined that the extent of the permanent impairment suffered by a claimant was less than one-half of that determined by the only medical testimony submitted before the Board. The Board primarily relied on its experience in matters of that type. An appeal followed from the Board's decision and this Court's affirmance thereof In reversing that determination, the Supreme Court held:
Whatever "institutional experience" or administrative expertise the Board possesses may be used as a tool for evaluating evidence but not as a source for creating evidence. Nor may the Board compare the claim under consideration to other cases decided by it, without affording the parties notice and opportunity to dispute the applicability of such cases. Unlike judicial bodies, which may rely upon, and take instruction from, previous rulings for legal standards, the Board should refrain from using cases from its own experience for factual comparison, unless invited by the parties to do so. (Citations omitted.)Id. at 6.
The philosophy set forth in the above quoted language applies with equal force here. In determining that the Claimant suffered no loss of earning capacity under the circumstances existing here, the Board did not allow either party to question the applicability of 14 Del. C. § 9219, the availability of full time employment opportunities to the Claimant given his professional background or the prevailing salaries in those circumstances. The decision is fatally flawed as a result and must be returned to that body to take the steps necessary to complete the record in such a manner so that the issue in question can be resolved. This Court can then determine whether that resolution is supported by sufficient evidence in the record and is free from legal error.
To the extent that the Employer has argued that the Board made harmless error in determining that there was no loss of earning capacity by going outside the record, it is simply incorrect. There is no other basis upon which the decision could have been based.
At the very least, the Board should inquire as to the employment available on a full time basis to an individual with the Claimant's capabilities and professional background, the range of salaries paid or available to such individuals and the duties/assignments of any available employment within the Claimant's capabilities and professional background.
CONCLUSION
For the reasons stated above, the decision of the Industrial Accident Board is hereby remanded to the Board for further proceedings consistent with this opinion.
IT IS SO ORDERED.