Opinion
C.A. No. 03A-06-006 JEB.
Submitted: March 19, 2004.
Decided: June 24, 2004.
Appeal from a Decision of the Industrial Accident Board. Decision Affirmed.
Jeffrey S. Friedman, Esquire, and Michael I. Silverman, Esquire Wilmington, Delaware. Attorneys for Harvey Chriscoe.
Eric D. Boyle, Esquire, Wilmington, Delaware. Attorney for the Colonial Trucking.
OPINION
This case stems from an industrial accident which left Claimant Harvey Chriscoe totally disabled and permanently disfigured. Claimant entered into two compensation agreements with Employer Colonial Trucking. Both agreements were approved by the Industrial Accident Board ("Board"). Claimant now argues that reformation of the agreements is warranted based on a mutual mistake as to Claimant's hourly wage rate. For the reasons explained below, the Court finds no mutual mistake and therefore affirms the Board's denial of Claimant's request to change the wage rate.
FACTS
On June 26, 2001, Claimant Harvey Chriscoe was injured while working as a truck driver for Employer Colonial Trucking Company. At the time of the accident, Claimant was riding in the cab of a dump truck when the rig rolled over and Claimant was tossed from side to side. As a result, Claimant suffered numerous wounds and underwent neck and abdominal surgery.
Claimant filed a petition with the Board for medical and disability benefits resulting from the accident. Claimant asserted an hourly wage rate of $14.50 on his petition. However, he entered into a compensation agreement with Employer based on an hourly rate of $12.19. He received benefits of $325.21 per week, based on a weekly wage of $487.81, which is reached by multiplying 40 hours by an hourly wage of $12.19. In other words, Claimant contractually agreed to compensation based on an hourly wage rate less than he had initially sought.
Claimant also filed a petition with the Board for disfigurement benefits because of the damage done to his right ear, neck, right scalp and abdomen. At a hearing on this issue, the parties stipulated that Claimant's weekly wage at the time of the accident was also $487.81 (or $12.19 per hour), and the Board awarded benefits at that rate for a total of 86 weeks. Thus for a second time Claimant entered into a compensation contract based on an hourly wage lower than that which he had initially sought.
See Employer's Appendix to Ans. Br. at Ex. C.
Claimant subsequently sought the Board's approval to increase the hourly wage rate, and the Board conducted a legal hearing on the matter. Claimant submitted one pay stub for the pay period ending June 30, 2001, which reflects 11.5 hours of "regular earnings" at the rate of $13.50 per hour, along with 1.50 hours of "regular earnings" at the rate of $17.42 per hour. Claimant explained that his hourly rate fluctuated depending on the type of work he performed. Counsel for Claimant also argued that Claimant's 2000 W-2 showed that he had worked for Colonial for 10 months and earned a total of $29,805.91, which counsel argued was consistent with a $17 hourly wage. The W-2 form was not presented to the Board and is not part of the record before the Court. Claimant sought ongoing and retroactive amendment of both compensation agreements.
STANDARD OF REVIEW
In reviewing a decision of the Board, the Court's role is to determine whether the Board's findings are supported by substantial evidence and are free from legal error. Substantial evidence is evidence that a reasonable person might accept as adequate to support a conclusion. The Court does not weigh the evidence, determine questions of credibility or make factual findings. It merely determines if the evidence is legally adequate to support the Board's findings.
Ridings v. Unemployment Ins. Appeal Bd., 407 A.2d 238, 239 (Del.Super.Ct. 1979).
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1998).
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1960).
DEL. CODE ANN. tit. 29 Del. C. § 10142(d) (2003).
DISCUSSION
Under Delaware's Workers' Compensation law, a claimant who is totally disabled is to be paid at 66 2/3 % of the wages he earned in an average work week at the time he was injured. Claimant argues that the hourly wage rate he agreed to in two separate compensation agreements should be increased because of a mutual mistake in determining the rate.A compensation agreement between parties before the Board may be reformed or set aside if the record establishes the existence of a mutual mistake. It is not enough that one party has made an error or that the agreement reflects a compensation lower than that allowable under the law. A mutual mistake occurs where the parties have a common intention and each labors under the same misconception.
Burgess v. Medical Center of Delaware, 1997 WL 718653 (Del.Super.), aff'd 1998 WL 138939 (Del.Supr.).
Berko v. Marriott, Inc., 1993 WL 544015 (Del.Super.Ct.).
Greenly v. Kent Construction Co., 1986 WL 182243 (Del.Supr.).
In this case, Claimant agreed not once but twice to an hourly wage less than the one he asked for in his original petition. He could have changed or objected to the lower figure either during negotiations with Employer or when the agreements were submitted to the Board for approval. He did neither. Even if Employer was mistaken about the wage rate, Claimant was aware that his hourly wage was at least $14.50 because that is the figure he initially requested. Nevertheless he agreed a lower hourly rate in the agreement as to total disability and in the agreement as to disfigurement. The record clearly establishes that there was no mutual mistake and the Court will not set aside the Board's decision.
CONCLUSION
For the reasons stated above, the Board's decision not to amend the compensation agreements is Affirmed. It Is So ORDERED.