Opinion
C.A. No. 04A-10-001.
Submitted: April 1, 2005.
Decided: June 29, 2005.
DECISION ON APPEAL — REVERSED AND REMANDED.
David A. Boswell, Esquire, Wachovia Bank Building, 4602 Coastal Highway, 2nd Floor, Rehoboth Beach, DE 19971-9794, attorney for Appellant/Claimant Below.
Scott L. Silar, Esquire, P.O. Box 8888, Wilmington, DE 19899-8888, attorney for Appellee/Employer Below.
MEMORANDUM OPINION
Pending before the Court is the appeal of claimant Thomas Austin ("claimant") from the portions of a decision of the Industrial Accident Board ("IAB") terminating his total disability benefits and awarding him partial disability benefits. The City of Lewes ("employer") did not appeal any portions of the decision.
This is an unusual case where a new hearing before the IAB is required because claimant was not provided the opportunity to meet his burden of proving he was a displaced worker where he was controlled by a no work order.
FACTS
On May 15, 1990, and November 16, 1992, claimant suffered a work-related injury to his back. On January 13, 2000, he had his first surgery. In October, 2002, he had a second surgery. Claimant and employer had entered into an agreement regarding temporary total disability benefits.
Beginning May 16, 2003, claimant's treating physician, Richard P. DuShuttle, M.D., implemented no work orders for claimant. Claimant reached maximum medical improvement in July, 2003.
Employer's doctor, John B. Townsend, III, M.D., examined claimant in May, 1999; December, 1999; February, 2001; December, 2003; and August, 2004. Claimant was not working in December, 2003. At that time, Dr. Townsend was of the opinion that claimant could work a sedentary job, with restrictions of no lifting more than ten (10) pounds on an occasional basis; change positions on an hourly basis; avoid repetitive bending and twisting at the waist; and stay out of cold, damp areas.
On April 14, 2004, employer filed a petition for review, seeking a termination of claimant's total disability benefits.
In July, 2004, employer terminated claimant. If the no work order was not an issue, this would have been the first time claimant was required to look for a job. Hoey v. Chrysler Motors Corporation, Del. Supr., No. 85, 1994, Hartnett, J. (Dec. 28, 1994).
In August, 2004, Dr. Townsend again examined claimant. Dr. Townsend continued to be of the opinion that claimant "would need to be on a light or sedentary work category; no lifting more than 15 pounds; able to change positions hourly; no climbing, crawling, kneeling as part of his job; and no bending repetitively at the waist."
On September 9, 2004, the Board held a hearing. The evidence presented is summarized below.
Dr. Townsend testified on behalf of employer. In December, 2003, claimant complained of having good and bad days, low back pain that radiated to his left side, right leg pain from his knee to his foot, and left leg numbness. He could clean or shop but if he walked for any distance, his left leg would give out. In December, 2003, claimant was taking Zanaflex, a muscle relaxant, Oxycontin and Oxycodone, Lydaderma patches, Neurontin and Pamelor. The amount of Oxycontin was lower than usual and the amount of Oxycodone was about normal.
Dr. Townsend examined claimant again in August, 2004. Claimant still was not working at that time. He told the doctor things were no better. He could not stand for very long, he was suffering pain and numbness, and he was groggy when he awoke. He explained that he did some light cleaning, made himself a sandwich, and did some stretching. He could not drive for long periods because of numbness in the legs. He was on Nortriptyline, Oxycontin, Oxycodone, Zanaflex, Neurontin, and Lidoderm patches.
With regard to the subject of claimant's "good days/bad days", the following colloquy took place:
Q. As a matter of fact, didn't you indicate before he'd had these two surgeries that he was going to have good days and bad days?
A. Yes, you'd expect that.
I digress at this point to note several things. First, Dr. Townsend is not saying that claimant now is experiencing good days/bad days. Second, Dr. Townsend never stated what impact "bad days" would have on claimant's ability to work.
Rene Burke Gleckner testified regarding the labor market survey she prepared for employer. No need exists to examine this labor market survey. It was, as the Board found, useless because it was "riddled with problems." However, the following colloquy concerning claimant's drug consumption is significant.
BOARD MEMBER: Okay and how did the employers as far as medication that the patient was taking was . . .
RENE GLECKNER: The oxycontin?
HEARING OFFICER: Yes.
RENE GLECKNER: Dr. Townsend, I am not a specialist on drugs and Dr. Townsend did not put any restrictions on him because of the drugs he was taking so they, none of these companies, they all may randomly drug test for legal drugs there would not be a problem. They randomly drug test for illegal drugs.
BOARD MEMBER: Okay and how about the tolerance. How would he be able to tolerate if he had to do a large number of hours per week and maybe overtime?
RENE Gleckner: That is not my . . .
BOARD MEMBER: Okay.
RENE GLECKNER: . . . that is not my field. That would be for one of the doctors to discuss whether he could work that many hours.
BOARD MEMBER: Okay and did either of the doctors . . .
RENE GLECKNER: No one addressed that. This is the first that I heard of this today.
Dr. DuShuttle's testimony is summarized below.
He has been treating claimant for over ten years, since claimant first suffered his work-related injury. Claimant treated conservatively, through November, 1999, when surgery became necessary. Claimant had back surgery in January, 2000. He initially showed improvement, but that improvement was not lasting. Claimant returned to work in August, 2000. Because claimant was digressing, Dr. DuShuttle referred him to Dr. Kalamchi. Dr. Kalamchi performed another surgery on him in October, 2002.
Dr. DuShuttle testified:
No honestly I don't believe Mr. Austin is capable of working at all and it doesn't matter what he is doing. He has more bad days than good days. He is not, he has a lot of pain. He is on extremely potent narcotics. I mean oxycontin I don't even use in my practice it is so potent. He is using that in conjunction with percoset. I wouldn't even recommend him driving under these medications.
* * * Well, as I stated earlier again I don't believe he could work, you know is there a day he could go in and do a sedentary job one or two days a week or I think he could do that but would he do that the majority of time. Would he do that in a consistent fashion, no he would be able to do that.
* * * I think the medical opinion for me would be that I don't think he would be able to do it in the consistent fashion on a regular basis and then assuming that he would try to do that I think he would create more harm for himself based on the reason I told Mr. Boswell.
When asked if claimant could work part-time, Dr. DuShuttle said he did not think he could. He explained that without doing anything, claimant would have more bad days than good days. It did not matter what type of work he was doing, his condition would not allow him to work on any regular basis, be it part-time or full-time.
Dr. DuShuttle was seeing claimant only on an as-needed basis as of the time of the hearing.
Dr. DuShuttle testified that Dr. Somori is claimant's pain management specialist and Dr. Somori is the one who prescribes the medications which claimant takes. Dr. DuShuttle believes that the no work status is something which Dr. DuShuttle, and not Dr. Somori, decides. He testified he never has discussed claimant's work status with Dr. Somori.
Dr. Somori, with whom claimant continued to treat, was not called to testify.
Elaine Bisbee, employer's manager, testified. She signed the letter terminating claimant effective July 1, 2004. Employer terminated claimant "because of being restricted in his responsibilities. He could not fulfill the essential responsibilities of the position [of assistant street foreman] that he held with the City of Lewes." Employer had twenty-eight (28) full-time employees. There are currently eight (8) full-time employees in claimant's department. Claimant has been on permanent light duty restriction since 1996. Employer terminated him because there were no positions available which could accommodate him with his current restrictions.
Claimant testified. He did not graduate from high school. His work experience includes working in a bra factory pulling stock, driving a fork lift for Smith Corona, working at the Townsend chicken plant, and working for employer. He can type with one finger. His job with employer required him to do everything. He was a labor/truck driver. He drove the truck, threw trash, cleaned the beaches, opened and cleaned the bathrooms, took care of the streets, placed street signs, filled pot holes. He was promoted to assistant supervisor around 1994 or 1996. He continued to physically work even though he was an assistant supervisor. He was placed on permanent light duty work around 1996. He had surgery in January, 2000, and returned to work in April, 2000. His condition deteriorated until he had to have surgery again.
He was making over $15.00 per hour at the time he stopped working for employer.
On his bad days, he cannot do anything. The bad days are random.
Despite Dr. DuShuttle's no work order, claimant applied for the jobs on the labor survey list. Claimant stated:
Yeah I figured I would give it a shot and you know if they will have an interview with me and we will talk and I will tell them what my limitations are and see you know whether we can work it out or whether you know if they said they would hire me then I would take the job description and go to Dr. DuShuttle to see what he would think whether he though [sic] it was going to do more harm to me by going to work.
None of the employers were hiring. Only one employer told him the chances were that he would not be able to do the job because there was a lot of bending and stooping required.
He sees Dr. Somori on a monthly basis. He was taking his medications at the time of the hearing. He never has discussed with Dr. Somori driving while on his medications "because I am afraid what he will tell me."
After noting that it decides which physician to believe, the Board concluded that it accepted Dr. Townsend's opinion that claimant was physically able to work in a sedentary capacity since at least December, 2003. The Board further found and concluded:
The Board finds that it is significant that Claimant only sees Dr. DuShuttle on an as-needed basis and has not discussed work abilities with Dr. Somori. Dr. Townsend examined Claimant most recently in August 2004. Dr. DuShuttle was not aware of Dr. Kalamchi's opinion in 2003, that Claimant was capable of working. Dr. DuShuttle did not think that Claimant would be a reliable employee because the bad days were unpredictable, so he determined that Claimant could not work. He testified that Claimant could work one to two days on an inconsistent basis and speculated on the consequences. However, the Board finds that inconsistency in attendance is an issue for the potential employer to address.
In December, 2003, Dr. Townsend found that Claimant had near normal range of motion, normal strength, and some tenderness in the low back. Claimant had a diminished ankle jerk on the left and diminished sensation in the left leg in a patchy distribution, but there was no evidence of spasm. Claimant was able to do little things around the house, clean, shop and walk for short distances. In August 2004, Claimant was able to do light cleaning at home, make himself sandwiches, do stretching exercises, and drive. Dr. Townsend found that Claimant's range of motion was less in December 2003, but that he had normal strength, reflexes and sensation. The Board accepts Dr. Townsend's opinion that Claimant was capable of working in a light or sedentary duty position, with no lifting over fifteen pounds, changing positions hourly, and no climbing, crawling, kneeling or repetitive bending at the waist.
Claimant indicated that he wants to work, but does not feel ready at this point. However, Claimant is able to drive from Blades to Milford, even after taking his medication, and was able to sit through the three-hour hearing. The Board finds that Claimant is able to shop, mow the lawn, do light cleaning, and live on his own.
Claimant had the right to rely on his treating physician's advice to not work until the Board resolves the conflict. Gilliard-Belfast v. Wendy's, Inc., 754 A.2d 251 (Del. 2000); Clements v. Diamond State Port Corp., 831 A.2d 870 (Del. 2003). In light of the above discussion however, the Board finds that as of the date of this hearing on September 9, 2004, Claimant is physically capable of working full-time in a sedentary capacity. Claimant is entitled to receive total disability benefits until September 9, 2004, as he relied on Dr. DuShuttle's advice not to work. Id.
Since Claimant is not totally incapacitated, the burden shifts to Claimant to prove that he is a displaced worker. Wyatt v. State of Delaware, Del. Super. Ct., C.A. No. 97A-05-004 HDR, Ridgely, J., at 3 (March 27, 1998) (Order). Given Claimant's age, physical limitations, education, mental capacity and training, the Board finds that he is not prima facie a displaced worker. Torres, 672 A.2d at 30 (citing Franklin Fabricators v. Irwin, 306 A.2d 734, 737 (Del. 1973)). Claimant is only forty-six years old. He has transferable skills that can be used in a sedentary capacity within his restrictions, such as managerial and communication skills, which were evident during the hearing.
Since Claimant is not prima facie a displaced worker, he may still prove that he is a displaced worker by showing that he has made a reasonable effort to locate employment, but was unable to do so because of his disability. M.A. Hartnett, Inc. v. Coleman, 226 A.2d 910, 913 (Del. 1967) (claimant must show inability "to obtain employment because of his physical condition"); Zdziech v. Delaware Authority for Specialized Transportation, Del. Super. Ct., C.A. No. 87A-AU-10, Gebelein, J. (October 13, 1988) (four applications in over a year period is not a reasonable effort when there is no evidence that failure to obtain employment was because of disability); see also Torres, 672 A.2d at 30 (citing Franklin Fabricators v. Irwin, 306 A.2d 734, 737 (Del. 1973)). Claimant applied for the jobs listed on the labor market survey, but did not apply for any other jobs. He was told that the positions were no longer available, not that he would not be hired because of his restrictions. The Board finds that Claimant failed to prove that he was unable to secure employment because of his injury. Torres, supra.
Based on the foregoing, the Board finds that Claimant is not a displaced worker and, therefore, is no longer totally disabled. The Board grants Lewes' Petition for Review as of the date of the hearing on September 9, 2004.
The Board then found that claimant was partially disabled; his work restrictions affect his earning capacity. It ruled as follows regarding his earning capacity:
The Board finds that the labor market survey was riddled with problems and cannot accept it as evidence of Claimant's earning capacity. Lewes stipulated to exclude the job at Color Box. Ms. Gleckner agreed that the job at the Fenwick Island Motel was not appropriate since it was only available for half of the year. The job at the Movies at Midway required mopping and cleaning, which are beyond Claimant's abilities. Furthermore, Claimant was not terminated from his job at Lewes until July 1, 2004; therefore, he was not required to look for work until after that date. There were no jobs listed on the survey that were available after July 1, 2004.
* * * Without the labor market survey, there is no evidence of Claimant's earning capacity. Therefore, as of September 9, 2004, the Board finds that Claimant will suffer a partial disability at the same rate as his total disability. [Citations omitted.]
DISCUSSION
As the Supreme Court explained in Stewart v. State of Delaware, Del. Supr., No. 609, 2003, Steele, J. (April 29, 2004) at 5:
The standard of review for decisions of the Industrial Accident Board is limited to whether there is substantial evidence in the record to support the Board's factual findings. [Footnote and citations omitted.] Decisions supported by substantial evidence will not be disturbed if they are free from legal error. [Footnote and citation omitted.] Substantial evidence is relevant evidence that a reasonable person might accept as being adequate to support a decision. [Footnote and citation omitted.]
This case is factually identical to the case of Clements v. Diamond State Port Corp., 831 A.2d 870 (Del. 2003) ("Clements").
Before examining Clements, it is necessary to examineGilliard-Belfast v. Wendy's, Inc., 754 A.2d 251 (Del. 2000) ("Gilliard-Belfast"). In that case, the claimant injured her knee while working and received total and partial disability benefits. She sought additional benefits and authorization for a second surgery. Both her doctor and the employer's doctor agreed she needed the surgery; however, they disagreed as to whether she should have been working during the period while she awaited surgery. Her doctor issued a no work order. The Supreme Court held at page 254:
[A] person who can only resume some form of employment by disobeying the orders of his or her treating physician is totally disabled, at least temporarily, regardless of his or her capabilities. [Footnote and citation omitted.]
In Clements, the claimant was receiving total disability benefits pursuant to an agreement with the employer. The employer filed a petition to terminate. The claimant's pain management doctor issued a no work order even though claimant's surgeon had released him to light duty work. Dr. Townsend, employer's doctor, determined that claimant could work in a light to sedentary capacity with restrictions. The Board accepted Dr. Townsend's opinion, concluded the claimant was not totally disabled, and then addressed the displaced worker aspect of the case. As the Supreme Court explained:
Based on the Claimant's education and work experience, the Board concluded that the Claimant "appears employable on a prima facie basis, even with his physical restrictions." Because the Claimant had made no efforts to locate suitable employment, the Board determined that the Clamant was not actually displaced.Clements, 831 A.2d at 872-3.
The Supreme Court ruled that the Board's holding claimant could not rely on the doctor's no work order and the resulting finding claimant was not a displaced worker was erroneous as a matter of law.
The Claimant's general right to rely upon his treating physician's total disability opinion, especially while a Board award or agreement is in effect, means that the Claimant had no obligation to either return to work on a limited basis with the Employer or to look for other employment until the Board makes that determination. Accordingly, the Board erred, as a matter of law, in concluding that the Claimant's failure to look for work was relevant to the displaced worker issue. The Claimant was required only to return to work on a restricted basis or to seek other employment following a Board determination that he was no longer totally disabled.
The Board's holding that the Claimant could not rely on the no work order of his treating physician would place the Claimant in the same position that this Court held was untenable in Gilliard-Belfast. The Claimant would have to either disregard the no work order of the treating physician at the risk of personal injury or follow the advice of the treating physician with the risk of losing benefits retroactively. Once again, we hold that when the treating physician renders a no work order — even if the employer's physician disagrees with the order — the claimant is totally disabled for the purpose of the Delaware Workers' Compensation statute until the Board resolves that issue in favor of the employer.
It is not unusual for medical experts to have a legitimate difference of opinion about a claimant's total disability even if both medical experts agree about the subjective complaints, objective physical findings, and test results. If the treating physician adheres to the view that the claimant is totally disabled, then as this Court held in Gilliard-Belfast, "a person who can only resume some form of employment by disobeying the orders of his or her treating physician is totally disabled, at least temporarily regardless of his or her capabilities." n19 It is then incumbent upon the employer to file a Petition to Terminate with the Board, as the employer did in this case. Until the issue of total disability is resolved by the Board, however, the claimant is entitled to follow the no work instructions of the treating physician. Consequently, the Board's determination that the Claimant was not a displaced worker should have been reversed by the Superior Court and remanded for reconsideration.
n19 Id.
Employer's Protective Statutory Rights
When an employer disputes a total disability determination from the claimant's treating physician, as in this case from Dr. King, the statute requires a claimant to submit to a separate medical examination, at the employer's request. n20 The employer's statutory right to request a separate medical examination provides the employer with a form of double protection. First, it provides the employer with an opportunity to submit the claimant's subjective symptoms to enhanced objective scrutiny by another medical expert. Second, it permits the employer to ascertain whether there is a genuine divergence of opinion between the medical experts with regard to the claimant's total disability status, even if they are in agreement about the subjective and objective manifestations of the claimant's condition. If the medical expert selected by the employer concludes that the claimant is not totally disabled, as Dr. Townsend did in this case, the basis for that medical conclusion should be made known to the treating physician. If the treating physician adheres to his or her original determination of total disability, after being advised of the employer's medical expert's reasons for reaching a different opinion, the employer must file a Petition to Terminate Benefits and the matter must be resolved by the Board.
In this case, there is no evidence of record that the procedure mandated in Clements was followed. There is nothing showing that Dr. Townsend's opinion was conveyed to Dr. DuShuttle before the petition to terminate was filed.
n20 Del. Code Ann. tit. 19, § 2343.
Thereafter, although the Claimant's right to receive total disability benefits continues after the petition to terminate is filed, those benefits are then paid by the Secondary Fund rather than the Employer.
An employee is entitled to compensation until there is a finding that he is no longer entitled to it, was implemented by providing for the continuation of the employee's compensation during the pendency of the proceedings to be paid out of the Fund. The legislative purpose was to assure continued compensation to the injured employee until he is found not to be entitled to receive it, and the burden of bearing the cost of such compensation if the employee is ultimately determined not to be entitled to it was placed upon the Fund. Of course, it provided for reimbursement to the Fund by the employer if it is ultimately determined that the employee is still entitled to compensation. n21
n21 Hamilton v. Trivits, 340 A.2d 178, 179-80 (Del.Super. 1975).
If the Board resolves the conflict between the medical experts in favor of the employer, the claimant's total disability status ends on the date of the Board's determination. That was the Board's ruling in this case. If the Board determines that the Claimant remains totally disabled, however, the Employer must reimburse the Secondary Fund for payments made after the date of filing.
In this case, the Board's decision that it had the statutory authority to terminate the Claimant's total disability status as of the date of filing was correct, as a matter of law. The statutory scheme is consistent with this Court's holding in Gilliard-Belfast because it contemplates that the Claimant will follow the no work order of a treating physician but relieve the successful employer from the cost of paying total disability retroactively to the date of filing.Clements, 831 A.2d at 879-80.
This case is factually identical to the case at hand. Employer seeks to distinguish it by arguing that Dr. DuShuttle no longer was the treating physician because he was seeing claimant on an as needed basis. Employer advanced that argument at the hearing, and the Board rejected it by labeling Dr. DuShuttle as his treating physician and by ruling that Gilliard-Belfast andClements applied. In a situation such as this, where the claimant has reached maximum medical improvement and the doctor had issued his no work order based upon his ten years of treating claimant, it was appropriate to consider Dr. DuShuttle claimant's treating physician.
The problem which arises in the case at hand regards the opportunity, or lack thereof, afforded claimant to acquire evidence to meet his burden in establishing that he was a displaced worker.
The Supreme Court laid out the burdens in Torres v. Allen Family Foods, 672 A.2d 26, 30 (Del. 1995):
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. [Citation omitted.] 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 she will no longer be employed regularly in any well known branch of the competitive labor market and will require a specially-created job if she is to be steadily employed." [Citation omitted.] 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. [Citation omitted.] However, even 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, . . ., if she "has made reasonable efforts to secure suitable employment which have been unsuccessful because of the injury." [Citation omitted.] 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. [Citation omitted.]
Employer, through Dr. Townsend's testimony, showed that claimant was not medically disabled. Claimant argues that because employer's labor market survey was worthless, employer did not meet its initial burden. However, that is not the law. The law, to repeat, requires the employer to show claimant was not totally disabled, and Dr. Townsend testified claimant could perform sedentary work. The burden then shifted to claimant to show he was a displaced worker. Torres v. Allen Family Foods, 672 A.2d;Bureau for the Visually Impaired v. Lawrence, Del. Super., C.A. No. 97A-11-001, Gebelein, J. (March 15, 1999) at 11.
Claimant could show he was a displaced worker in two ways. As explained in Joynes v. Peninsula Oil Company, Del. Super., C.A. No. 00A-06-001, Witham, J. (March 14, 2001) at 11-12:
Franklin Fabricators noted that two methods exist to show displacement. [Footnote and citations omitted.] First, the claimant may be a prima facie displaced worker which is one who "although not utterly helpless physically, because of the degree of obvious physical impairment, combined with various factors such as mental capacity, education, training, and age, is placed in a situation in which he could not ordinarily sell his services in any well-known branch of the labor market." [Footnote and citations omitted.] Second, the claimant can show displacement by showing that he has "made reasonable efforts to secure suitable employment which have been unsuccessful because of the injury." [Footnote and citation omitted.] Therefore, if the Claimant is not a prima facie displaced worker, he may be a displaced worker by reason of inability to secure a job because of his injuries.
In this case, the Board correctly found that claimant is notprima facie displaced because he is relatively young, is physically able to perform sedentary jobs, has sufficient education and intelligence to undertake a sedentary job, and has transferable skills, such as managerial and communications skills. Thus, in order to establish he is displaced, claimant must employ the second approach set forth above; i.e., he must show he could not find a job because of his injuries. However, the dilemma is that as long as he is subject to a no work order, he is not supposed to look for a job. Clements v. Diamond State Port Corp., supra; Nanticoke Memorial Hospital v. Roach, Del. Super., C.A. No. 03A-10-001, Stokes, J. (September 8, 2004) at 17-18.
The question then becomes, what should a claimant in such a position do? The Supreme Court previously explained that there should not be a two-step process where the claimant is given an opportunity to seek a job after the Board determines the claimant is medically able to work. Wade Insulation, Inc. v. Visnovksy, 773 A.2d 379 (Del. 2001). Thus, it appears that in order for a claimant to be able to meet this burden, then the claimant, once he is aware of the employer's doctor's restrictions, will need to ask employers who have jobs which fit within those restrictions if they are willing to hire the claimant in light of his injury. The claimant will not have to actually accept a job if offered employment. What he or she will be doing is conducting something akin to his or her own labor market survey.
It could be argued that in this case, claimant actually looked for a job. What he did was question the employers listed on the labor market survey regarding the allegedly available jobs. That survey, however, as the Board found, was invalid because the jobs were available in early spring of 2004 and not in July, 2004, the time when he was terminated. Hoey v. Chrysler Motors Corporation, Del. Supr., No. 85, 1994, Hartnett, J. (Dec. 28, 1994). Questioning those employers was futile except for further exposing the multitude of defects in the labor market survey. The Court will not rule claimant was meeting this requirement which the Court currently is establishing.
In this case, the Court is remanding the matter for a "do over" regarding the displaced worker aspect of the case. As a part of that case, it is important that claimant's drug use be addressed.See Waters v. Statewide Maintenance, Del. Super., C.A. No. 04A-03-001, Witham, J. (April 21, 2005); Sabo v. Pestex, Inc.. Del. Super., C.A. No. 03A-11-001, Stokes, J. (October 28, 2004),reargu. granted, Sabo v. Pestex, Inc.. Del. Super., C.A. No. 03A-11-001, Stokes, J.(Dec. 7, 2004), app. dism., Del. Supr., No. 3, 2005, Holland, J. (February 23, 2005). The parties also should better develop what impact claimant's flare-ups would have on his ability to obtain a job. See Carr v. State of Delaware, Del. Super., C.A. No. 01A-08-002, Ridgely, J. (May 15, 2002) (Neither the employer nor the claimant could find a job which met the claimant's working restrictions); Evans v. State, Del. Super., C.A. No. 88A-AU-2, Steele, J. (September 19, 1990) (Although employer's doctor conceded claimant would have good and bad days, he testified they should not affect her ability to work).
CONCLUSION
For the foregoing reasons, I reverse the decision of the IAB and remand the case for further action in accordance with this decision.
IT IS SO ORDERED.