Opinion
No. 297, 1998.
Submitted: November 17, 1998.
Decided: January 20, 1999.
Court Below — Superior Court of the State of Delaware in and for Sussex County, C.A. No. 97A-04-004.
Before VEASEY, Chief Justice, WALSH and BERGER, Justices.
ORDER
This 20th day of January 1999, upon consideration of the briefs of the parties, it appears to the Court that:
Catherine Bythway appeals from a judgment of the Superior Court, affirming the decision of the Industrial Accident Board (the "Board") denying her claim for total disability benefits. The Superior Court denied this claim after dismissing Bythway's argument that the Board had improperly refused to issue subpoenas relating to the reasonableness of her post-injury job search.
In February 1995, after twenty-nine years as an employee of Super Fresh Food Markets, Inc. ("Employer"), Bythway underwent back surgery to correct pain that had developed over time from her work-related duties. Due to this surgery, Bythway was unable to work in any capacity from January 5, 1995 until May 12, 1995. On March 13, 1995, Bythway filed with the Board a petition to determine compensation due.
In May 1995, Bythway's doctor released her to work, with restrictions on her duties. Although she was willing to work full-time and had available skills to do so even with her duty restrictions, Employer gave her only part-time hours. At the time of the Board hearing, Bythway remained an employee of Employer, although she testified as to her efforts at obtaining a job that would better accommodate her duty restrictions.
On May 8, 1996, the Board conducted a hearing on Bythway's petition. Mary Brown, a vocational rehabilitation specialist hired by Employer to conduct a labor market survey, testified as to Bythway's ability to return to work. Brown testified before the Board that, using Bythway's medical records and resume, she had found eleven available jobs in Sussex and Kent Counties that Bythway could perform. Bythway requested subpoenas for these eleven employers to show that Brown actually had not contacted them. The Board refused to issue the subpoenas, but did allow Bythway to introduce letters from her attorney to each of these employers.
Based on evidence presented at that hearing, the Board awarded Bythway total disability benefits for the period January 4, 1995 until May 12, 1995. It then awarded Bythway diminished earning capacity benefits from May 12, 1995 and continuing in an amount of $240 per week. Additionally, the Board awarded Bythway fees, medical expenses, medical witness fees and attorneys' fees. On February 7, 1997, in response to Employer's motion for reargument, the Board upheld its earlier determination.
Bythway v. Great Atlantic Pacific Tea Co., I.A.B. No. 1049374 (May 8, 1996).
The Board determined that even though Bythway had only worked part-time for this period, she had been available for full-time work. It awarded her $6.00 per hour based on a forty-hour work week.
On April 18, 1997, Bythway filed an appeal of the Board's determination with the Superior Court, arguing that the Board erred in finding her partially, rather than permanently, disabled from May 12, 1995 and continuing. Among other issues, Bythway argued that the Board had denied her due process in refusing to issue subpoenas to employers contacted by Brown. The Superior Court rejected this due process argument, finding that the Board had permitted Bythway to attack the survey through alternate means and that the Board need not issue subpoenas that it does not deem essential to the fact-finding process. On July 10, 1998, Bythway filed a notice of appeal to this Court.
Bythway v. Super Fresh Food Markets, Inc., Del. Super., C.A. No. 97A-04-004 at 12 (June 15, 1998).
In Adams v. Shore Disposal, a case very similar to the instant appeal, this Court recently held that "due process requires that the claimant be permitted to subpoena witnesses in order to effectively develop his or her case and to cross-examine the employer's witnesses." Citing Torres v. Allen Family Foods, this Court stated that, in a Board hearing, the final decision whether to use the subpoena process rests with the claimant. If the claimant and his or her counsel are "satisfied that a witness is needed, the Board may not refuse."
Del. Supr., 720 A.2d 272 (1998).
Id. at 273.
Del. Supr., 672 A.2d 26 (1995).
Adams, 720 A.2d at 273.
Id. (Quoting Torres, 672 A.2d at 32).
In the instant case, Bythway and her counsel were satisfied that the eleven employers were necessary as witnesses because they would presumably testify that Brown had never contacted them. This would have cast some doubt on the results of Brown's survey and could have affected the Board's decision that Bythway was only partially disabled.
In light of Adams, Bythway must have the opportunity to exercise her right to subpoena the employers in Brown's labor market survey. The Board erred as a matter of law when it refused to issue the requested subpoenas.
NOW, THEREFORE, IT IS HEREBY ORDERED that the decision of the Board is REVERSED, and the matter is REMANDED for further proceedings consistent with this order.
BY THE COURT:
/s/ E. NORMAN VEASEY, Chief Justice