Opinion
No. 99A-11-002-CG
Date Submitted: March 27, 2000.
Date Decided: April 27, 2000.
ON APPEAL FROM THE INDUSTRIAL ACCIDENT BOARD.
AFFIRMED.Matthew M.. Bartkowski, Kimmel, Carter, Roman Peltz, P.A., Wilmington, Delaware, Attorney for Appellant.
Jeffrey M. Austin, Scott A. Simpson, Elzufon Austin, P.A., Wilmington, Delaware, Attorneys for Appellee.
MEMORANDUM OPINION
This is an appeal by the claimant from a decision of the Industrial Accident Board dated October 21, 1999. Claimant, Maureen Burgess, injured her back on March 18, 1997 in the Christiana Care Health Services histology laboratory, where she served as an unpaid intern. At the time of the accident, Burgess was enrolled at Delaware Technical Community College pursuing a degree in Histotechnology. The internship at Christiana Care was part of the curriculum in her degree program.
On April 1, 1998, Burgess filed a Petition to Determine Compensation Due with the Industrial Accident Board relating to the March 18, 1997 accident at Christiana Care. On August 18, 1998, the Board held a limited hearing in order to consider certain evidentiary and legal issues involved in the case. Burgess asked that the Board issue an order stating that Burgess was, in fact, an employee of Christiana Care at the time of her injuiy. Burgess also asked that the Board determine a wage rate applicable for Burgess, because, as a student intern, she earned no actual wages from Christiana Care. At the time of the hearing, the Board expressed reservations as to whether it should consider the applicable wage rate. Burgess admitted that she had no evidence to present concerning the issue.
Specifically, the transcript reads:
[BURGESS' COUNSEL]: And I guess the second issue would be what her — if the Board does deem her an employee, what would be her compensation rate, what would be the basis for her compensation rate then at that point.
[BOARD MEMBER] DONAHUE: That would be done at a hearing though, the full hearing.
[BOARD MEMBER] ANDERSON: You're saying they would need to have a full hearing?
MR. DONAHUE: A Board hearing for the injury and everything else. All we're here to say is she an employee or not. And then if she — one way or the other.
MS. ANDERSON: That is a preliminary issue, is she an employee.
MR DONAHUE: Yeah, that's all.
[BURGESS' COUNSEL]: Correct. But I think the Board could also, without medical testimony, I think you could also establish what the basis would be for her — of determining her —
MS. ANDERSON: Do you have evidence that you're going to put on that relates to that?
[BURGESS' COUNSEL]: Well we don't at this particular time. But I think that might help the parties if that was the Board's decision to resolve this matter without a further legal hearing, if we could get some guidance on that matter.
At the August 18, 1998 hearing, Burgess testified and described her duties in the Christiana Care histology laboratory. Burgess testified that the histology laboratory also employed histologists who were not part of the internship program with Del. Tech. Burgess explained that the difference between her position and that of a histologist: "The only thing that they were doing . . . we weren't allowed to do frozen specimens because the hospital requires you to have a certificate."
At the conclusion of the Board hearing, Burgess submitted a prior Board decision in support of her argument that her wage rate, if the Board decided she was an employee of Christiana Care, should be the rate of "someone who is in the Histology Department, at the wages as of March 1997." In response, Christiana Care argued that the Board need not reach the issue because Burgess was not an employee and had no earning capacity as a student intern.
On September 7, 1998, the Board issued its Decision on Burgess' Petition to Determine Compensation Due. The Board found that Burgess, while working as a student intern at Christiana Care, was an employee of Christiana Care when she was injured in the histology laboratory. The Board also found that, as an employee, Burgess was "entitled to receive compensation of a weekly wage that is `based on the average earnings for 6 months of an average employee of the same or most similar employment.' 19 Del. C. § 2302 (b)." Neither party appealed the September 7, 1998 decision of the Board.
In April 1999, Burgess filed a Petition to Determine Additional Compensation Due, alleging that she was entitled to permanency benefits based upon an eight percent impairment to her low back resulting from the March 8, 1997 accident. After the petition was filed, the parties resolved the permanency claim by stipulating to a five percent impairment to Burgess' low back. However, the parties were unable to reach an agreement as to Burgess' applicable wage rate. As the parties explained to the Board in Burgess' counsel's letter of September 29, 1999, Burgess contended that the issue of the applicable wage rate had been decided by the Board after the August 18, 1998 hearing so that the applicable rate was to be based on the rate of a licensed histologist. Christiana Care, however, disputed that wage rate and contended that Burgess should be paid based upon a lower wage rate due to her status as a student intern.
As a result, the Board held a legal hearing on October 4, 1999 solely to consider the issue of the proper wage rate calculation for Burgess' claim. At the Board hearing, Burgess argued that her applicable wage rate should be based upon that of a histology technician at the time of the accident. Burgess contended that the issue was decided by the Board in its September 7, 1998 decision. Therefore, according to Burgess, the Board could not revisit the issue. Christiana Care responded that the Board did not definitively decide Burgess' wage rate. Christiana Care pointed out that the Board's decision merely stated that the formula to be used should be based upon the average earnings for six months of an average employee of the same or most similar employment.
Christiana Care also stated that there are no unlicenced histology technicians working at Christiana Care. Christiana Care contended that, because Burgess had not completed the necessary requirements to become a licensed histologist, her earning capacity was not that of a licensed histologist. Instead, Christiana Care suggested that the Board adopt a model already used at Christiana Care for registered nurse clinical externs who worked for wages at Christiana Care. Christiana Care's counsel stated that Christiana Care used a wage rate for those externs of sixty-seven percent of the salary of an entry level registered nurse. Christiana Care concluded by arguing that to compensate Burgess based upon the wages of a licensed histologist would be unfair since she had not completed the requirements to function in that position.
The Board issued its written decision on October 21, 1999. The Board indicated that it had reviewed its previous order, which set forth that the average weekly wage should be based upon the average earnings for six months of the employee of the same or most similar employment. The Board then concluded:
On August 18, 1998, Claimant testified that there was a component of the histology technician job that she could not perform because she was not licensed. The Board agrees with Christiana that licensure makes a difference and finds that "an average employee of the same or most similar employment" would be a student histology technician, not a licensed histology technician. The Board accepts the model used by Christiana for students and finds that Claimant's compensation rate is $242.40.
Burgess has filed a timely appeal of the Board's October 21, 1999 decision with this Court. On appeal, Burgess argues that the Board erred by allowing Christiana Care to reargue the issue of Burgess' compensation rate because the Board had already decided the issue in its September 9, 1998 decision. Alternatively. Burgess argues that, even if the Board did not err by revisiting the issue of Burgess' compensation rate, the Board improperly decided that the compensation rate should be based on a "student model" rather than upon the salary of a licensed histology technician.
The role of this Court, in reviewing a decision of the Board, is to determine whether the Board's factual findings are supported by substantial evidence. Histed v. E. I. duPont de Nemours, Del. Supr., 621 A.2d 340, 342 (1993). "Substantial evidence" has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Olney v. Cooch, Del. Supr., 425 A.2d 610, 614 (1981). The Court must also determine whether the Board's decision is free from legal error. The Court's review of alleged errors of law by the Board is de novo. Brooks v. Johnson, Del. Supr., 560 A.2d 1001, 1002 (1989).
Initially, Burgess argues that the Board erred by considering the issue of Burgess' compensation rate at the October 4, 1999 hearing. Burgess argues that the Board decided this issue at the August 18, 1998 hearing so that the Board did not have legal authority to revisit the issue. Burgess contends that the Board concluded at the August 18, 1998 hearing both that Burgess was an employee of Christiana Care and entitled to benefits and that she should be paid at the rate of "an average employee of the same or most similar employment." According to Burgess, the Board issued an order for compensation benefits at a particular rate and could not legally modify that rate. According to Burgess, the parties "only had to insert the amount a histologist was paid in the labor rate into the calculation." In response, Christiana Care argues that the Board did not fully decide the issue of Burgess' wage rate at the August 18, 1998 hearing, but merely set forth the method by which the rate should be calculated.
Burgess is correct in stating that final awards made by the Board are generally held to be res judicata and, therefore, immune from collateral attack: Taylor v. Hatzel Buehler, Del. Supr., 258 A.2d 905, 908 (1969). However, the Court cannot find that the Board made a definitive finding at the August 18, 1998 hearing that Burgess' compensation rate should be that of a licensed histologist. Rather, the Board merely set forth the proper formula for determining what that wage should be. Nowhere did the Board make a determination that the most similar employee to Burgess was a licensed histologist.
Despite, Burgess' arguments to the contrary, the Court does not find that Burgess' attempt to raise the issue of the proper wage rate at the August 18, 1998 hearing is proof that the Board decided the issue. As the Court noted above, the Board specifically stated at the August 18, 1998 hearing that it felt that the only issue before it was that of whether Burgess was an employee of Christiana Care. Burgess indicated that she had no evidence relating to the issue of her wage rate to present at the hearing. Nor does the Court find that Christiana Care's offer to submit information as to the wage rate of a licensed histologist indicates that Christiana Care in any way conceded that this was the proper rate to apply. Therefore, the Court finds that the Board did not err as a matter of law or otherwise abuse its discretion in considering the issue of Burgess' proper wage rate at the October 4, 1999 hearing.
Burgess' alternative argument is that the Board erred as a matter of law by determining that her appropriate wage rate should be based on the "student model" as described by Christiana Care's counsel, rather than that of a licensed histology technician. Burgess argues that the Board erred by determining that "an average employee of the same or most similar employment" would be a student histology technician rather than a licensed histology technician. Burgess contends that the Board's decision is not supported by substantial evidence contained in the record. According to Burgess, no evidence was offered at either the August 18, 1998 hearing or the October 4, 1999 hearing that the employee of the same or most similar employment to that of Burgess was any other position except a licensed histologist.
Christiana Care responds that, to the contrary, the only evidence presented at the August 18, 1998 hearing supports the Board's conclusion that Burgess did not the have the same earning capacity as a licensed histologist. Specifically, Burgess testified that she was not allowed to engage in all the functions of a histology technician. In the beginning of her internship, Burgess' training was purely instructional and when she began her internship, she embedded cut pieces of paper to make slides rather than actual tissue samples in order to learn the procedure. Also, the Director of Employee Health at Christiana Care, Christine Collins, testified that interns are required to function under the direct supervision of the clinical site's designated histotechnologist. Although students are gradually given more responsibility, they cannot function independently until they graduate from the program and are hired as histotechnologists. Also, student interns are not qualified to be histotechnologists until they are licensed.
The Board did not err by considering the issue of the appropriate wage rate for Burgess in order to determine her compensation. In its decision after the October 21, 1999 hearing, the Board clearly stated that it had reviewed its order of September 9, 1998 when making its determination. Therefore, due to the fact that the parties themselves, by letter dated September 21, 1999, requested a legal hearing, rather than an evidentiary hearing, and that the Board clearly acknowledged the September 9, 1998 decision, the Court finds that the Board did not abuse its discretion in the manner it conducted the legal hearing on October 4, 1999.
Burgess argues that, because the Board members at the two hearings were not identical, "there exists [sic] significant questions whether the panel for the legal hearing had all the information needed to make the correct decision."
Therefore, the sole issue remaining for the Court to determine is whether the Board erred as a matter of law in determining Burgess' applicable wage rate. 19 Del. C. § 2302 sets forth the definition and means of computing wages. The statute provides, in pertinent part:
(a) The term `wages' means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident. . . .
(b) If the rate of wages is fixed by the day or hour, the employee's weekly wages shall be taken to be that rate times the number of days or hours in an average work week of the employee's employer at the time of the injury. If the rate of wages is fixed by the output of the employee, then the employee's weekly wage shall be taken to be the employee's average weekly earnings for so much of the preceding 6 months as the employee has worked for the same employer. If, because of exceptional causes, such method of computation does not ascertain fairly the earnings of an employee, then the weekly wage shall be based on the average earnings for 6 months of an average employee of the same or most similar employment.
The legislative intent of these provisions is to compensate the employee for loss of earning capacity, rather than the loss of wages actually earned. Howell v. Supermarkets General Corp., Del. Supr., 340 A.2d 833, 836 (1975).
The Board, by its decision, implicitly determined that "exceptional causes" exist in Burgess's situation so that her wages cannot be calculated based upon her actual wages or output. Neither party disputes this finding; indeed, Burgess' situation as an unpaid intern presents an unusual situation. Therefore, the Court finds, and neither party disputes, that the Board set forth correctly the appropriate standard by which to determine Burgess' wage rate, that is, "the weekly wage shall be based upon the average earnings for 6 months of an average employee of the same or most similar employment." It is the Board's determination under this standard that Burgess contends is in error.
The Court finds that the Board's determination, given the unusual issue posed by Burgess' status as an unpaid intern, is not erroneous, and is based upon substantial evidence in the record before it. There is substantial evidence in the record to support the Board's decision that Burgess could not perform the full duties of a histology technician because she was not licensed. Burgess herself testified at the August 18, 1998 hearing that she could not complete frozen sections without certification. The Director of Employee Health Services testified that histology interns could not function independently until they were licensed. The issue that remained before the Board, therefore, was the proper imputation for the wages of a student histology technician, since such "employees" receive no actual wages. The Board accepted Christiana Care's argument that Burgess' theoretical wage rate should be analogized to that of other student employment positions within Christiana Care. The Court finds that the Board commit no legal error by doing so.
The Court also finds that, given the procedural posture of the hearing, the Board did not err by accepting Christiana Care's counsel's representation that a student-nursing model existed at Christiana Care and that the hospital calculated the wages of student nurses at sixty-seven percent of the salary rate of an entry level registered nurse. The Court also notes that Burgess' counsel did not object to these representations by Christiana Care's counsel as improper.
Therefore, for the foregoing reasons, the Court finds that the Board's decision of October 16, 1999 determining that Burgess' wage rate should be established as two-thirds that of a licensed histology technician is based upon substantial evidence in the record and that the Board committed no errors of law in reaching its determinations. The Board's decision is hereby AFFIRMED.
IT IS SO ORDERED.
__________________ Carl Goldstein, Judge
oc: Prothonotary