Opinion
C.A. No. 99A-01-002.
Date submitted: July 6, 1999.
Date decided: November 4, 1999. Affirmed in part, Reversed in part, Remanded: February 8, 2000
Upon Appeal from a Decision of the Industrial Accident Board — AFFIRMED IN PART REVERSED IN PART, REMANDED.
Raymond W. Cobb, Esq., of Wilmington, Delaware, attorney for Employer — Appellant.
Jessica L. Welch, Esq., Doroshow, Pasquale, Krawitz, Seigel Bhaya, of Wilmington, Delaware, attorney for Claimant — Appellee.
MEMORANDUM OPINION
This is the Court's decision on Appellant Community Systems, Inc. ("Employer")'s appeal of the Industrial Accident Board ("Board")'s decision of August 19, 1998, concluding that Appellee Ernest Allen ("Claimant") was entitled to total disability benefits from September 16, 1997 through December 6, 1997 based on Claimant's part-time employment with Community Systems, Inc. For the following reasons, the decision of the Board is AFFIRMED.
I.
Claimant was employed fUll-time by the Delaware Psychiatric Center as a psychiatric attendant and part-time by Community Systems, Inc. ("CSI") as a residential counselor. On September 15, 1996, while working for CSI Claimant sustained injuries to his neck, lower back, shoulder and right knee when the van in which he was a passenger was rear-ended by another vehicle also driven by an employee of CSI. Claimant sought workers' compensation benefits for his wage loss at CSI. Claimant had already received lost wage benefits for his fUll-time job at Delaware Psychiatric Center from the personal injury protection ("PIP") carrier.
On October 18, 1996, a Petition for Compensation Due was filed with the Board seeking total temporary disability for a closed period of September 19, 1996 to January 21, 1997, and medical expenses. On August 19, 1998, the Board issued a written decision that granted Claimant total disability from September 16, 1996 to December 6, 1996 for Claimant's part-time employment with CSI and awarded a portion of the medical expenses.
Employer appealed the Board's decision, contending that Claimant should have proceeded under PIP to obtain wage loss benefits from his part-time employer as PIP benefits are primary over workers' compensation benefits. Employer argues that allowing Claimant to collect the workers' compensation award of total disability benefits for part-time employment is manifestly unfair where Claimant had already received PIP benefits for his full-time employment. Employer also argues that the Board erred as a matter of law when it awarded Claimant total disability benefits for part-time employment based one 40-hour work week.
It is the employer's contention that the Board erroneously concluded in its decision that Claimant worked an average of 40-hours per week at CSI and the Board's factual premise for the award is not substantiated in the record. The only testimony presented before the Board with regard to the number of hours that Claimant worked at CSI was Claimant's testimony that he would work 30 hours per week every other week and 42 hours per week on alternate weeks.
Claimant contends that the Board's decision to allow Claimant to receive workers' compensation benefits enables Claimant to maximize his recovery which is the underlying premise of both the workers' compensation and PIP statutes. Claimant argues that PIP benefits from the job of injury would not be the optimal distribution.
II.
The Supreme Court and this Court have repeatedly emphasized the limited appellate review of the factual findings of an administrative agency. The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. It merely determines if the evidence is legally adequate to support the agency's factual findings If such evidence exists and the agency has made no error of law, its decision must be affirmed.
General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960); Johnson v. Chrysler Corporation, Del. Supr., 213 A.2d 64, 66-67 (1965).
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battisa v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), app. dism., Del. Supr., 515 A.2d 397 (1986).
Johnson v. Chrysler, 213 A.2d at 66.
Mooney v. Benson Mgt. Co., Del. Super., 451 A.2d 839 (1982).
III.
The problem involved in this case is the overlap of coverages between the Workmen's Compensation Act and the Delaware No-Fault Insurance Act. Both statutes are entitled to liberal construction in order to achieve their remedial purposes. Claimant was injured within the course and scope of employment and therefore is entitled to coverage under the Workmen's Compensation Act. Additionally, Claimant is entitled to PIP benefits because he was injured as a result of an automobile accident. Therefore, with regard to Claimant's loss of earnings for the part-time job with CSI, both workers' compensation and PIP benefits are available. With regard to Claimant's loss of earnings for the full-time job with Delaware Psychiatric Center ("DPC"), workers' compensation benefits are not available because Claimant was not injured within the course and scope of that employment. However, unlike workers' compensation benefits, payments issued pursuant to the no-fault statute are not limited to accidents occurring in the course and scope of employment and Claimant therefore is entitled, and in fact received, PIP benefits for his loss of earnings at DPC. The issue here is whether Claimant must accept PIP benefits for the part-time job at CSI because PIP benefits are primary, or whether Claimant is entitled to choose workers' compensation benefits because they offer the maximum coverage for Claimant.It is well settled law in Delaware that to the extent that the benefits provided by no-fault coverage and workers' compensation overlap, no-fault provides greater benefits and therefore no-fault should control. Not only is PIP coverage primary, but its "interaction with the coverage provided under the worker's compensation act must be managed in such a fashion that the injured employee receives the maximum benefits available under both. The object is to provide and protect the interests of such individuals."
Cicchini v. State, Del. Super., 640 A.2d 650 (July 12, 1993), aff'd, Del. Supr., 642 A.2d 837 (1994); Pennsylvania Manufacturers Assoc. Co. v. Oliphant, Del. Super., C.A. No. 83CAP-3, Bush, J. (September 10, 1986) (relying on the fact that the no-fault statute was more recently enacted and more specific, applying to all PIP insured, whether employees or not, who are injured in an automobile accident).
Cicchini, 640 A.2d at 653.
Both parties agree that the primary obligation to provide compensation for injuries received as a result of an automobile accident occurring in the course and scope of employment lies with PIP coverage. Employer argues, however, that because PIP benefits are primary, Claimant must obtain PIP benefits rather than workers' compensation coverage for the part-time employment with CSI. Claimant argues that the purpose behind holding PIP benefits primary to workers' compensation is to maximize the employee's benefits, and in the case at bar, the workers' compensation benefits provide the optimal distribution.
Cicchini, 640 A.2d 650.
In most cases involving workers' compensation and no-fault coverage overlap, the employee usually is seeking the PIP coverage over the workers' compensation benefits because the no-fault coverage is greater. For example, in Cicchini, the employees wanted to recover under PIP rather than workers' compensation but the employer argued that the employees would benefit more by taking the workers' compensation. While the court agreed that the employees would be "benefitted" under the workers' compensation scheme, and did not dispute the proposition that Delaware law does not require the PIP insurer to pay first in all instances even where PIP coverage is termed "primary" or "superior," the Court found that the employer was unable to contradict the argument that by declaring the workers' compensation benefits primary, the employees would actually recover less because the resultant liens would be satisfied directly from any recovery received by the employees from the tortfeasors.
Oliphant, at 4.
Cicchini
Here, Claimant argues that the maximum benefit arises under the workers' compensation scheme. It is true that with regard to the wage loss and medical bills, the amount of PIP benefits are limited and PIP benefits are the only source of wage loss coverage available to Claimant for his position at DPC. If Claimant were to exhaust the PIP coverage, he would be prevented from receiving compensation for any future wage loss with DPC.
In Cicchini the Court was concerned that resultant liens would reduce the employees recovery under the workers' compensation scheme. This is no longer an issue now that the amendment to 19 Del. C. § 2363(e) was enacted which prevents the workers' compensation carrier from asserting a claim against plaintiff's recovery if the expenses paid were eligible for PIP coverage.
This Court concludes that the purpose behind holding PIP coverage primary is to maximize the benefits to the employee. In this case that goal would be advanced under the workers' compensation scheme. The no-fault statute does not indicate that the PIP coverage is exclusive, therefore, there is no reason to conclude that because Claimant has a PIP claim for his fill-time employment, that he would be forced to accept PIP coverage for his employment with CSI.
Cicchini, at 654; Hone Ins. Co. v. Walls, Del. Super., C.A. No. 77C-0C-90, Taylor, J. (October 19, 1979); Johnson v. Fireman's Fund Ins. Co., Del. Super., C.A. No. 82C-0C-63, Poppiti, J. (November 21, 1983).
IV.
Employer also argues that the Board erred in concluding that Claimant worked an average of 40 hours per week for CSI. Claimant testified that he worked 30 hours per week every other week, and 42 hours per week on the alternate weeks, yet the Board concluded in its written decision issued August 19, 1998, that Claimant "worked an average of forty hours a week at CSI."
Allen v. Community Systems, Inc., IAB Hearing No. 1089766 (August 7, 1998).
The statutory basis for wage calculation is found in 19 Del. C. § 2302 (b). The statute, in pertinent part, states: "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." The Board's calculation of average work week does not appear to be supported by the only evidence on this issue. If the limited evidence were assumed to be true an award could be no greater than a 36 hour work week average.
V.
In light of the foregoing, the decision of the Board is hereby REVERSED and the case is REMANDED with direction to the Board for such further proceedings as are consistent with this opinion as to the issue of average work week, as to all other issues the decision is AFFIRMED.
IT IS SO ORDERED.