Opinion
C.A. No. 04A-10-001.
August 3, 2005.
ORDER GRANTING LEAVE TO APPEAL FROM INTERLOCUTORY ORDER
Appellant H. Thomas Austin ("appellant") has made application pursuant to Rule 42 of the Supreme Court ("Supr. Ct. R. 42") for an order certifying an appeal from the interlocutory orders of this Court dated June 29, 2005 and July 14, 2005. The June 29, 2005 order reversed a decision of the Industrial Accident Board ("IAB") and remanded the matter for further proceedings consistent with the Court's decision of that date. (Hereinafter, the order, which is contained in the Court's memorandum opinion of that date, shall be referred to as the "June 29, 2005 order"). The July 14, 2005 order denied appellant's motion for reargument. (Hereinafter, that order shall be referred to as the "July 14, 2005 order"). These orders are attached hereto as Exhibits A and B, respectively.
Appellant appealed from an IAB decision which terminated his total disability benefits and awarded him partial disability benefits. Since the facts were identical to those in Clements v. Diamond State Port Corp., 831 A.2d 870 (Del. 2003) ("Clements"), the claimant could rely on his treating physician's no work order. This Court concluded that the IAB correctly found claimant was not prima facie displaced. It also concluded that in order to show he is a displaced worker, claimant must show he could not find a job because of his injuries. This Court recognized, however, that a dilemma arises in such a situation: as long as a claimant is subject to a no work order, he is not supposed to look for a job. The question, then, is how does a claimant who is under a no work order show that he is a displaced worker. The Supreme Court previously ruled in Wade Insulation, Inc. v. Visnovsky, 773 A.2d 379 (Del. 2001), that a remedy could not be a two-step process where a claimant was given the opportunity to seek a job after the IAB determines that a claimant is medically able to work. The remedy this Court suggested at pages 14-15 of the July 29, 2005 order was as follows:
[I]t 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. [Footnote omitted.]
Since claimant had not had the opportunity to comply with this procedure, the Court remanded the matter for another hearing with regard to the displaced worker aspect of the case.
Claimant then filed a motion to reargue. Therein, he contended the Court failed to consider another way for him to be deemed displaced. His argument was as follows. In the case of Chrysler Corp. v. Duff, 314 A.2d 915, 918 (Del. 1973), the Supreme Court opined:
In a specific factual context, it may be correct for the Industrial Accident Board to conclude that evidence of the refusal to rehire the employee satisfies the employee's prima facie burden to show `reasonable efforts to secure suitable employement which have been unsuccessful because of the injury.'"
Claimant argued the case at hand, where the employer fired claimant from a long-standing permanent light-duty job because he was not able to perform that job physically, constituted such a specific factual context. This Court, explaining it had considered this argument earlier and discounted it, denied the motion to reargue in its July 14, 2005 order.
Claimant then filed an application for certification of an interlocutory appeal of the June 29, 2005 and July 14, 2005 orders. He amended that application within the period allowed for him to file an interlocutory appeal, and it is the amended application for certification of an interlocutory appeal which this Court considers. The City of Lewes ("appellee") has responded, arguing certification to take an interlocutory appeal should not be granted.
In his application, claimant maintains that this case presents two original questions of law as well as a decision which conflicts with current law.
1) Original questions of law
Claimant argues the following original questions of law are presented:
[1)] Whether an employer who admittedly fired an employee from a permanent light-duty position because of his disability then bears the burden, on its petition to terminate, of showing that other work is available within the employee's restrictions, or whether that employee is a displaced worker in fact, or as a matter of law.
[2)] [W]hether the employee is entitled, in lieu of presenting evidence of a job search which is unsuccessful, to rely upon the employer's evidence to show that even a vocational expert was unable, within the realm of light-duty jobs, to find a position that Austin was able to do, to show that the employee was a displaced worker.
I do not consider the first issue to present an original question of law. In Chrysler Corporation v. Duff, 314 A.2d at 917-18, the Supreme Court ruled that scenarios such as the one at hand would require a factual determination and not be subject to a matter of law ruling. In this case, the IAB considered various facts, including the fact that claimant could perform sedentary jobs as well as the fact that his restrictions of lifting, requirements of rest periods and limitations on exposure to the outside elements prevented him from performing the only light-duty position employer had available. The various facts do not lend themselves to a matter of law ruling. Thus, I do not certify this first question.
I do not consider the second argument to present an original question of law because claimant's argument is based upon the premise that the burden is on employer, when it is not. Until claimant shows he has made a reasonable job search, the employer does not need to show suitable employment by means of a labor market survey. Since claimant's premise fails, his argument fails. Consequently, I do not certify this second question.
2) Conflicting decisions
Claimant's third argument for the granting of the application is that conflicting decisions exist on how to deal with the no work order situation. He maintains that other decisions of the Superior Court have ruled that no remand is appropriate, and that if this Court's decision is followed, then there will be two hearings every time such a case is appealed.
In this case, there will, admittedly, be two hearings. However, after this case, there should only be one proceeding and not two. This ruling will eliminate, in the future, the need for an employer to file another petition to terminate or for the Court to remand a case.
Because no procedure has been outlined for a claimant to establish he is a displaced worker in the situation where a no work order was issued, delay and confusion has ensued. The IAB needs to decide whether a claimant is a displaced worker at the original hearing. This Court's June 29, 2005 order sets forth a procedure which allows that decision to be made at that time. Because the Court now has outlined this procedure, there will not be, contrary to claimant's contention, two hearings every time a no work order exists. Instead, this procedure, if followed, will insure only one hearing takes place and it will eliminate the confusion which has occurred in the past. This Court is providing for two hearings in this case because it desired to grant claimant the opportunity to participate in the procedure it implemented so that he has the opportunity to obtain the benefits which he seeks.
The establishment of the procedure establishes a legal right and determines a substantial issue. It establishes a significant new procedure in an area of the law which needs concrete and not nebulous procedures and which affects parties needing prompt resolution of the issues facing them. The Superior Court has wrestled with the procedure which should be followed in such a situation, thereby rendering conflicting decisions on the law and the area of the law is unsettled. It may take one to two years for this issue to reach the Supreme Court if the matter first returns to the IAB for a remand and subsequently is appealed. In the meanwhile, other parties will be facing this same issue. It would be judicially economical to have the Supreme Court resolve this sensitive area of the law which, to repeat, needs concrete rules and prompt resolution.
Thus, appellant having made application pursuant to Rule 42 of the Supreme Court for an order certifying an appeal from the interlocutory orders of this Court, dated June 29, 2005 and July 14, 2005, and this Court having found that such orders determine substantial issues and establish legal rights and that 1) there are conflicting decisions as to how to proceed in such a situation and 2) the area of law is unsettled;
IT IS ORDERED THIS 3RD DAY OF AUGUST, 2005, that the Court's orders of June 29, 2005 and July 14, 2005 hereby are certified to the Supreme Court of the State of Delaware for disposition in accordance with Rule 42 of that Court.