Opinion
C.A. No. 02A-01-003
Date Submitted: May 17, 2002
Date Decided: August 5, 2002
On appeal from the Industrial Accident Board.
AFFIRMED.
ORDER
This 5th day of August, 2002, upon consideration of the appeal of Brian Brittingham ("Mr. Brittingham") from the decision of the Industrial Accident Board ("the Board") and the parties' briefs, it appears to the Court that:
1. Mr. Brittingham sustained a compensable injury on January 21, 1999, while he was employed by Daimler Chrysler ("Chrysler"). Mr. Brittingham injured his right, long thoracic nerve which resulted in permanent surgical scarring and right scapular winging. On June 20, 2001, Mr. Brittingham filed a Petition to Determine Page 2 Disfigurement seeking benefits for the scarring and deformity of his right upper extremity and knee.
2. On December 13, 2001, the Board held a hearing on the Petition. Mr. Brittingham was the only witness and there were no disputes of fact. Mr. Brittingham showed the Board the scars on his shoulder and on his knee. In addition, he testified that his right arm shakes when elevated. Mr. Brittingham testified that he wears tank tops frequently or goes without a shirt, that he plays basketball, bowls, and fishes, and that the scars are embarrassing to him.
3. The Board awarded Mr. Brittingham disfigurement benefits on December 19, 2001 as follows: three (3) weeks for the scar on his knee; twelve (12) weeks for the scar on the front of his shoulder; and three (3) weeks for the scar on the back of his shoulder. The Board declined to award benefits for the shaking in Mr. Brittingham's right arm.
4. Mr. Brittingham appeals from the Board's December 19, 2001 decision. He maintains that the Board erred as a matter of law and fact in determining the compensation due for his disfigurement. Specifically, he argues that the Board erred by denying disfigurement benefits for the shaking in his arm, by failing to address the scapular winging of his shoulder, and by awarding only three (3) weeks for the scarring on the back of his shoulder.
5. In reviewing a decision of the Board, the Court must determine whether it is supported by substantial evidence and free from legal error.`Substantial evidence' means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' "When sitting as an intermediate court of appeals, and unless otherwise mandated by statute, the Superior Court's function basically is the same as that of the Supreme Court." The Court acts "to correct errors of law and to review the factual findings of the court below to determine if they are sufficiently supported by the record and are the product of an orderly and logical deductive process."
Brittingham v. St. Michael's Rectory, Del. Super., C.A. No. 99A-11-001, Bradley, J. (July 25, 2000) (Mem. Op.) (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
Id. (citations omitted).
Baker v. Connell, 488 A.2d 1303, 1308 (Del. 1985).
Steelman v. State, 2000 WL 972663 at *1 (Del.Super.) (citations omitted).
6. "The Board shall award proper and equitable compensation for serious and permanent disfigurement to any part of the human body up to 150 weeks, provided that such disfigurement is visible and offensive when the body is clothed normally. . ." In determining what constitutes "proper and equitable compensation", the Board may consider: (a) the size, shape and particular location of the disfigurement; (b) the social and psychological impacts suffered by the claimant as a result of the disfigurement; (c) the comparative severity of the claimant's disfigurement; and (d) any other matters which the Board believes are relevant to its determination on the amount of the award to be made.
Del. C. Ann. tit. 19 Del. C. § 2326(f) (1995).
Colonial Chevrolet v. Conway, Del. Super., C.A. No. 79A-FE-13, Longobardi, J, (April 28, 1980), Order at 3 (emphasis added); see also Murtha v. Continental Opticians, Inc., 1998 WL 40223 (Del.Supr.).
7. While the Board must "explicitly state the facts upon which its decisions are based", the Board is not required to explain each of the factors set forth in Colonial Chevrolet. The Board must particularize its findings of fact to enable the reviewing court to determine if substantial evidence supports such findings. In cases where there are no disputes of fact and the claimant is the only witness, "somewhat less particularized findings may be acceptable to an appellate court."
Colonial Chevrolet at 2 (citation omitted).
See Branch v. Chrysler Motors Corp., 1996 WL 527283 (Del.Super.) at *4 ("Board is required to set forth all factors which it considers in making an award, but does not require the Board to explain each and every one of the Colonial Chevrolet factors"); Pollard v. Placers, Inc., 1996 WL 527307 (Del.Super.)(same); Redmile v. Pathmark Stores, Inc., 1999 WL 743527 (Del.Super.) at *3 (same); Roberts v. Capano Homes, Inc., 1999 WL 1222699 (Del.Super.) at *2 (same); Brooks v. State, 1992 WL 114404 (Del.Super.) at *2 ("there is no requirement that the Board consider each of the factors detailed in Colonial Chevrolet").
Brooks, supra, at *2 (citation omitted).
Pollard, supra, at *5 (citation omitted).
8. The Court is satisfied that the Board's decision is supported by substantial evidence. The Board considered and discussed all of the testimony when determining its award. The Board described each scar in detail and analyzed the visibility and offensiveness of each scar. With respect to the shaking in Mr. Brittingham's arm, the Board had the opportunity to view this condition, and found that the shaking was not offensive and declined to award compensation for that aspect of the claim. "[T]he sole condition precedent to the receipt of compensation for disfigurement . . . is that the disfigurement is `visible and offensive when the body is clothed normally.'" Although Mr. Brittingham may disagree with the Board, there is no basis to reverse the Board's finding in that regard.
Redmile, supra, at *2 (citation omitted).
9. Finally, Mr. Brittingham argues that the Board erred in failing to address the scapular winging of his shoulder. Upon careful review of the record, the Court notes the complete absence of testimony or other discussion regarding the scapular winging with the exception of a brief mention in counsel's closing argument. Without any testimony or evidence in the record, this Court cannot find that the Board erred in failing to address the issue in its decision.
10. Based on the foregoing, the decision of the Board is AFFIRMED.
IT IS SO ORDERED.