Opinion
Civil Action No. 10A-07-002-JOH.
Submitted: January 7, 2011.
Decided: April 26, 2011.
Upon Appeal From the Industrial Accident Board — AFFIRMED .
Michael P. Freeberry, Esquire, Hockessin, Delaware, Attorney for Devereaux Wilson, Appellant.
Christine P. O'Connor, Esquire, of Tybout Redfearn Pell, Wilmington, Delaware, Attorney for Chrysler, L.L.C., Appellee.
MEMORANDUM OPINION
Devereaux S. Wilson has appealed the Industrial Accident Board's denial of temporary total disability benefits to him, claiming that he is entitled to temporary total disability benefits for recurring issues related to hand injuries he sustained while working for DaimlerChrysler.
Procedural Posture and Factual Findings
Wilson suffered two job related injuries to his hand during his employment at the DaimlerChrysler ("Chrysler") plant in Newark, Delaware. The first occurred on February 22, 2006, and the second on October 10, 2006. He had two surgeries and eventually returned to full time work at the Chrysler plant. He had begun at the plant doing line work, and had ended his career there as a repair man. Wilson regularly treated with a physician at the plant, but had been released to full duty work and still able to do repair work on about 20 cars per day. In late 2008, when the plant was making plans to close permanently, Wilson was approached about a buyout program, and ultimately accepted a single lump sum of money in exchange for no future employment contact with Chrysler. Wilson was 49 years old, and had worked at Chrysler for about 25 years. His last day of work was December 20, 2008.
Opening Br. at 1.
Opening Br. at 1.
Hearing Tr. 11, 18.
Hearing Tr. at 9.
Id. at 17-19.
Id. at 12.
Id. at 9.
Id. at 12.
On April 6, 2009, Wilson filed a petition to determine additional compensation for a third surgery from his prior injuries, plus total disability benefits. Before the hearing, Chrysler stipulated it would pay for the surgery, but contested the claim for total disability benefits because Wilson did not show that he had sought work since December 20, 2008 or been re-employed. The Board hearing took place on November 4, 2009. At the hearing, Wilson was the only person to testify. He explained that he accepted the buyout for several reasons, particularly that he thought he could get the lump sum from the buyout, and find another job elsewhere. He also mentioned that he had a sick daughter, grandchildren, and a wife whom he supported, and he believed there would be no future for him at Chrysler once the Newark plant closed. He also said his hand was "bad off," and that he did not feel as though he could do manual work with his hand. He said that "the pain from this hand is so bad sometimes you got to stop doing what you do two, three seconds before it goes away and then you can continue." He testified that he had many good years left to work, and that he took a buyout, with no intent to retire. No medical expert testimony or records were offered to show that Wilson was currently disabled, and Wilson did not say he had been told by any doctor that he could not work.
Claimant's Ex. at 1.
Hearing Tr. 7-8.
Id. at 12-13.
Id. at 13.
Id..
Id. at 13, 15.
Id. at 16-18.
When his attorney asked him what kinds of jobs he was looking for, Chrysler's counsel objected. The following exchange occurred:
[Chrysler's Counsel]: There has been nothing produced to my office that suggest[s] that this gentleman has been searching for a job since the time he left Chrysler. Our request for production which was sent out and I can provide you with a copy specifically asks for that information so we can prepare for this very issue. Any testimony or information documentation wise produced to the Board today would be very prejudicial against the Employer because we haven't had an opportunity to investigate this.
[Claimant's Counsel]: Well nothing has been provided to me by the client or the Claimant in this case. It's been verbal he has told me where he has looked for work that sort of thing. So there is nothing I could give even if I wanted to.
Board Member: But you, correct me if I'm wrong, you could have provided the information that was provided to you to Employer's Council [sic] per the request.
[Claimant's Counsel]: Actually I asked him today during our prep before the hearing what type of work did you look for there is nothing that he gave.
Id. at 14.
The Board Sustained Chrysler's objection.
Id. at 14-15. Wilson did not appeal this decision. The Court believes the Board was well within its discretion to make this ruling.
The Board denied Wilson's petition for total disability benefits on June 21, 2010, determining that he had voluntarily accepted the buyout from Chrysler in 2008 while gainfully employed there. After such, he had not performed a reasonable job search or obtained any kind of employment that would make him eligible for total disability benefits. The Board held that total disability benefits were essentially wage replacement benefits, and that a claimant who voluntarily leaves the workforce and does not show that he reasonably sought alternative employment is not entitled to total disability benefits. Wilson timely appealed the decision to this Court.
IAB Decision at 4.
IAB Decision at 5.
Parties' Contentions
Wilson claims that the Board erred in finding that he was ineligible for total disability benefits because he accepted a buyout from Chrysler in December 2008, and did not subsequently seek alternative employment. Wilson argues he is entitled to disability benefits because Chrysler agreed to pay for his post-employment surgery, and admitted that this surgery would render him temporarily totally disabled. He also contends that it is inconsistent to undertake a job search while seeking pre-approval for surgical costs and total disability benefits.
Chrysler argues that Wilson was a full-time employee at the Chrysler plant when he accepted a voluntary buyout and terminated his employment relationship with the company. He has not shown any proof that he sought other employment, despite several assertions that he would like to work again, and does not consider himself "retired." In April 2009, Wilson filed a peitition seeking surgical authorization, and for total disability benefits. Although Chrysler agreed to pay for the surgical procedure, since the need for it resulted from the two prior work injuries, it did not agree to pay total disability benefits. It argues that he is no longer a part of the work force at Chrysler, and has voluntarily removed himself from the job market. He therefore cannot be awarded what is essentially a wage replacement benefit, since he will not lose any wages from being totally disabled after the surgery.
Opening Br. at 1.
Applicable Standard
The duty of this Court on an appeal from the Industrial Accident Board is limited to determining whether the Board's decision is supported by substantial evidence and is free from legal error. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The Court must search the entire record, and determine whether the Board could fairly and reasonably reach the conclusion that it did. The Court w ill review the record below in the light most favorable to the party prevailing below. The Court will give deference to the experience and specialized competence of the Board, and the credibility of witnesses, weight, and reasonable references to be drawn therefrom are for the Board to determine.
General Motors Corp. v. Jarrell, 493 A.2d 978, 980 (Del.Super. 1985).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
Nat'l Cash Register v. Riner, 424 A.2d 669, 674-75 (Del. Super. 1980).
General Motors Corp. v. Guy, 1991 WL 190491 at *3 (Del. Super.).
29 Del. C. § 10142(d); Coleman v. Dept. of Labor, 288 A.2d 285, 287 (Del. Super. 1972).
Discussion
Total disability benefits continue indefinitely until the disability ceases. Total disability benefits are wage replacement benefits for wages lost when an employee is out of work recovering from an injury or unable to work permanently. Workers who accept a buyout do not forfeit a right to total disability benefits for injuries obtained prior to the buyout. In Jones v. DaimlerChrysler, the Board held that ". . . by offering the buyout, Employer was in effect requesting Claimant to stop being employed . . . Employer was enticing Claimant to leave. Such an action cannot reasonably interpreted as a basis for forfeiture."In past decisions, the Board has analogized buyout cases to certain voluntary retirement situations. Although these cases are arguably distinguishable because they deal with a retirement, and not a buyout, the same rationale regarding the requirement to search for work applies. In the voluntary retirement cases, when an injured worker voluntarily retires for inability to continue work with his current employer, but also demonstrates intent and ability to continue working elsewhere, he must show that he sought employment elsewhere to be eligible for benefits. If such a claimant fails to submit adequate evidence that he made a good faith effort to seek alternative employment within the limitations of the disability, benefits may be denied. "The statutory requirement that an injured worker receiving workmen's compensation accept employment within his physical capability is simply a corollary of the rule that an injured party is required to mitigate his damages." In the few buyout cases that have come before the Board, it has not distinguished between a voluntary retirement and acceptance of a buyout when imposing the minimum requirement that the claimant at least seek alternative employment to be eligible for disability benefits. Additionally, the Board, perhaps carelessly, some times inserts the word "retire" when referring to a buyout. In the buyout cases, the Board consistently notes that continuing to seek employment is an element it considers when deciding to grant benefits. Wilson's case appears to be the first buyout case where the claimant has not demonstrated any evidence that he searched for alternative employment after accepting the buyout. This distinguishes Wilson's case from the Board's other "buy out" cases, where claimants in circumstances similar to Wilson's have met this key requirement of seeking or having employment (at lesser wage) and been awarded benefits.
Lee, at 15 n. 1; Kane v. Chrysler Group, Del. IAB, Hearing No. 1202305 at 24 (Jun. 25, 2010).
General Motors Corp. v. Willis, 2000 WL 1611067 at *3 (Del. Super.).
Sharpe v. W.L. Gore Assocs., 1998 WL 438796 at *3 (Del. Super.); Rozek v. Chrysler, LLC, Del. IAB, Hearing No. 1315237 at 9-10 (Dec. 2, 2009).
Sharpe at *3; citing Counts v. Acco Babcock, Inc., 547 A.2d 131 (Del. 1988)(Table).
See, Kane v. Chrysler Group, Del. IAB, Hearing No. 1202305 at 13, 22-23 (Jun. 24, 2010).
Lee at 15, 20; Robinson at 19-20.
Id..
The mere acceptance of the buyout can not bar Wilson from recovery. However, the crux of this decision is whether Wilson's failure to seek alternative employment after accepting the buyout bars him from collecting temporary total disability benefits. The duty of this Court on an appeal from the Board is to determine whether the Board could fairly and reasonably reach the conclusion that it did, and that the decision was supported by substantial evidence and is free from legal error. The Court finds here that the Board has met this threshold. Wilson did not claim a loss of earning capacity, arguing only that he is temporarily totally disabled, but is otherwise willing and able to work. In fact, he worked full-time at Chrysler up until he accepted the buyout, on December 20, 2008. He is claiming disability benefits from April 2009 through the period of time during which he will be disabled after the third surgery. Wilson offered no medical opinion or records to establish that he was disabled from April 2009 onwards. He also did not testify that any medical professional advised against working. He did not demonstrate a loss of earning capacity. Even more crucial to this decision, Wilson did not provide any documentation of his alleged job search. Wilson's argument that while he was pending approval of temporary benefits he had no duty to look for work is a nonstarter. He complained to the Board that his hand hurt too much to work but offered no evidence any kind of job search, no medical evidence showing his hand prevented a job search, and no evidence about what kinds of jobs he could possibly perform with the hand limitation. The Board has held that a failure to seek alternative employment after voluntarily removing oneself from the workforce can be a bar to total disability benefits. Despite Wilson's verbal claim that he sought employment, he has not provided any proof of such search, even to his own lawyer, and thus the Board's decision to deny temporary total disability is supported by substantial evidence and is free from legal error.
Lee at 14.
Nat'l Cash Register, 424 A.2d at 674-75; Jarrell, 493 A.2d at 980.
Board Hearing Tr. at 12-13.
Sharpe at *3; Rozek at 9-10.
Conclusion
For the reasons stated herein, the Board's decision is AFFIRMED.
IT IS SO ORDERED.