Opinion
C.A. No. 99A-06-009 RRC.
Submitted: December 16, 1999.
Decided: March 16, 2000.
Upon Appeal From a Decision of the Industrial Accident Board. AFFIRMED.
H. Garrett Baker of Elzufon Austin, P.A., Attorney for Appellant.
James J. Hazel, Deputy Attorney General, Department of Justice Attorney for Appellee (in effect attorney for the Worker's Compensation Fund)
Dear Counsel:
Pending before this Court is the appeal of Employer-Appellant DeVille Court Apartments (Employer) from a decision of the Industrial Accident Board (Board) denying its Petition for Reimbursement from the Worker's Compensation Fund (Fund). The issue in this case is whether the Board committed legal error in construing 19 Del. C. § 2327(a) to require a change of employment by a permanently injured worker for any entitlement to reimbursement from the Fund. For the reasons set forth below, the Board's decision is AFFIRMED.
I. Summary of Facts and Procedural History
This appeal is in essence a dispute between the Employer's insurance carrier and the Fund. The facts of this case are undisputed. Curtis Long (Employee) sustained a compensable industrial accident to his right shoulder. At the Board hearing to determine Employer's Petition for Termination of Benefits, the. Board found that Employee continued to be eligible for total disability benefits. At the hearing, the Fund acknowledged that the Employee was totally disabled and that his total disability had resulted from a prior and subsequent permanent injury. Also undisputed was the fact that Employee had suffered from three work accidents that had occurred during employment with Employer. A critical fact in this appeal is that all Employee's work-related accidents occurred while he was employed by the same employer.
Subsequently, the Employer filed with the Board a petition which sought reimbursement of total disability payments from the Fund pursuant to 19 Del. C. § 2327. Following the Board hearing on April 13, 1999, the Board denied Employer's petition for reimbursement from the Fund and subsequently denied the Employer's motion for reargument. Employer appealed the Board's decision to this Court. This is the Court's decision on that appeal.
II. Standard of Review
The Supreme Court and this Court repeatedly have emphasized the limited appellate review of factual findings of an administrative agency. The function of the reviewing Court is to determine whether substantial evidence supports the agency's decision. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This Court, on appeal, does pot weigh the evidence, determine questions of credibility, or make its own factual findings. This Court's duty is limited to determining whether substantial evidence supports the Board's findings of fact and whether errors of law exist. As the Court performs this duty, it views the facts in a light most favorable to the prevailing party below. Only where there is no satisfactory proof in support of the factual findings of the Board may Superior Court overturn it. Furthermore, this Court will give deference to the expertise of administrative agencies and must affirm the decision of an agency even if the Court might have, in the first instance, reached an opposite conclusion.
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66-67 (1965); General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960).
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), appeal dismissed, Del. Supr. 515 A.2d 397 (1986).
Johnson at 66.
See Chudnofsky v. Edwards, Del. Supr., 208 A.2d 516, 518 (1965).
Johnson at 66.
See 29 Del. C. § 10142(d); Petty v. University of Delaware, Del. Supr., 450 A.2d 392, 396 (1982); Levitt v. Bouvier, Del. Supr., 287 A.2d 671 (1972).
Statutory interpretation is ultimately the responsibility of the courts. A reviewing court may accord due weight, but not defer, to an agency interpretation of a statute administered by it. A reviewing court will not defer to such an interpretation as correct merely because it is rational or not clearly erroneous.
Public Water Supply Co. v. DiPasquale, Del. Supr., 735 A.2d 378, 382 (1999).
III. Discussion
The issue presented before this Court is whether the Board committed legal error in construing 19 Del. C. § 2327(a) to require a change of employment by a permanently injured worker for any entitlement to reimbursement from the Fund.Before the Fund can grant reimbursement for total disability benefits, an employer must demonstrate that total disability payments are within the scope of § 2327(a). That section provides, in pertinent part, that
(a) Whenever a subsequent permanent injury occurs to an employee who has previously sustained a permanent injury, from any cause; whether in line of employment or otherwise, the employer for whom such injured employee was working at the time of such subsequent injury shall be required to pay only that amount of compensation as would be due for such subsequent injury without regard to the effect of the prior injury. Whenever such subsequent permanent injury in connection with a previous permanent injury results in total disability as defined in § 2326 of this title, the employee shall be paid compensation for such total disability, as provided m § 2324 of this title, during the continuance of total disability, such compensation to be paid our of a special fund known as "Worker's Compensation Fund."
In construing this statute to rule upon Employer's petition, the Board stated that it had "no choice but to agree with the Fund's position [that § 2327 does not authorize disbursements from the Fund in the absence of a subsequent employer]. While a plain reading of the statute gives credence to [Employer's] arguments, this Board cannot ignore the precedent[s] of the Delaware Supreme and Superior Courts" [in requiring a change in employment by a permanently injured worker for any entitlement to reimbursement from the Fund].
Board decision of April 21, 1999 at 6.
A. Contentions of the Parties
Employer contends that the Board erred as a matter of law in "interposing the requirements that there be succeeding employers in order for an employer, to obtain reimbursement from the worker's compensation fund as this requirement is not contained within the statute." Employer further argues that the basic purpose of the statute is to "ensure that an Employer who is only partially responsible for a loss should not be shouldered with the fUll weight of that loss. Employer also states that § 2327 contains no condition precedent requiring a change of employers to qualify for reimbursement. Employer asks this Court to reverse the decision of the Board and order the Fund to reimburse the Employer for total disability paid.
Employer's Opening Brief at 7.
Id. at 8.
The Fund argues that the "language of the second sentence of § 2327(a) precludes reimbursement from the worker's compensation fund to [Employer] for total disability benefits paid to this [Employee]." The Fund argues that the Board's decision is correct because reimbursement is not available in this situation because of the requirement that there be a subsequent employer. The Fund states that "the first and second sentence of § 2327(a) are related, and that the second sentence must be understood with reference to the first sentence because the first words of the second sentence relate back to the same phrase in the first sentence." The Fund asks this Court to affirm the decision of the Board.
Fund's Answering Brief at 4.
Id. at 5.
B. Delaware Courts Have Construed 19 Del. C. § 2327 To Apply Only In Situations Where There Is A "Subsequent Employer"
Although there are no decisions directly deciding whether 19 Del. C. § 2327 requires a change in employment by a permanently injured worker for any entitlement to reimbursement from the Fund, the first sentence of § 2327(a) has been construed by several Delaware courts. In Spence v. University of Delaware, a case where the insurance carrier of the employer sought reimbursement from the fund for a subsequent permanent injury sustained by an employee, the Court addressed the purpose of the statute. The Supreme Court stated that the purpose of a second injury fund is to "divide responsibility for successive disabling injuries resulting in total disability between the employer last in time and a broader spectrum of the community." Turning to § 2327 specifically, the Court said that "the first sentence thereof limits the obligation of the second or subsequent employer for aggravation of a prior permanent injury." The phrase "employer last in time" as used in Spence strongly implies that the subsequent permanent injury occurred during employment with a subsequent employer.
Del. Supr., 311 A.2d 867, 869 (1973) (holding that total disability payments are to be paid from the Fund when there is "(a) a previous permanent injury and (b) a subsequent permanent injury which (c) results in total disability.").
Id. at 868.
Id. at 869.
Similarly, in Forbes Steel and Wire Co. v. Graham, the Supreme Court addressed § 2327(a) in relation to an employee who was injured from two compensable industrial accidents while employed by the same employer. The Court stated that
Del. Supr., 518 A.2d 86 (1986).
19 Del. C. § 2327, which requires apportionment does not apply here. That provision applies when a worker sustains a permanent injury, changes employers, then subsequently sustains a second compensable injury, but not when; as here, "a worker has sustained two injuries while working for a single employer and it is the employer's former and present insurance companies who dispute their respective compensation obligations.
Id. at 89 citing Baker Driveway Co. v. Marker, Del. Super., C.A. No. 81A-MR-16, Walsh, J. (Mar. 3, 1982) (Letter Opinion).
The Forbes court's apparent reasoning behind this-statement was to prevent a loss of benefits because of a change in insurance carriers. The Forbes Court found that reimbursement from the Fund to the employer was not authorized because of the absence of a subsequent employer.
Turning to decisions of this court, Atlantic States Tree Expert Co. v. McCoy, addressed § 2327 and its application to an employee who sustained two injuries during employment with the same employer. This Court affirmed the decision of the Board and cited the Forbes case in explaining that § 2327 "refers to the situation of a worker who has sustained a permanent injury, whether work related or not, who then changes employers and, in the latter employment, sustained a compensable injury." The reasoning in McCoy was based on the difference between an employee who sustains a subsequent permanent injury with a different employer, and an employee who also sustains two injuries; one injury when the employee was covered by the employer's insurance and one injury when the employee was covered by a different insurance carrier.
Del. Super., C.A. No. 85-OC-13, Taylor, J. (Jan. 6, 1987)(ORDER).
Id. at 2.
In H A Electric v. Bickling, this Court addressed the apportionment of responsibility under § 2327 and stated that § 2327 "provides for apportionment of responsibility in the event of subsequent injury to an employee and is designed to prevent discrimination against previously impaired workers." The Court analyzed the holding in Spence and said that:
Del. Super., C.A. No. 94A-09-005, Ridgely, J. (Aug. 24, 1995)(ORDER).
[t]he first sentence of the section limits the obligation of a second or subsequent employer for aggravation of a prior permanent injury. The second sentence provides for the source of the compensation which an employee will receive in addition to that due him for the second injury alone when the requirements of the statute are met.
The Bickling Court quoted the purpose of the statute from the Spence Court and said "the purpose of the [Fund] in Section 2327 is to 'divide responsibility for successive disabling injuries resulting in total disability between the employer last in time and the broader spectrum of the community.'"
C. A Literal Reading of § 2327 Supports The Precedents Espoused By The Delaware Courts
Bickling at 4 (citing Spence).
Considering that the above mentioned cases have construed the purpose and first sentence of § 2327 in a way that requires a subsequent employer for any reimbursement from the fund, it is essential to look at the specific wording of the second sentence and the meaning of the two sentences when read together.
The second sentence of § 2327 begins with "[w]henever such subsequent permanent injury. . . ." The word "such" is key in understanding the requirements of this section. A definition of the adjective "such" is "[b]eing the same as something implied but left undefined or unsaid." The connection between the subsequent permanent injury in the first sentence which happened during the employment with a second employer, and the subsequent permanent injury in the second sentence is linked by the word "such." The subsequent permanent injury, as noted in the first sentence of the statute, occurred while the employee worked for a second employer. It is implied through the use and meaning of the word "such" that the subsequent permanent injury in the second sentence happened while employed with a subsequent employer. The use of the word "such" implies what is left undefined or unsaid in the second sentence of § 2327(a): that the subsequent permanent injury was sustained during employment with a subsequent employer.
The American Heritage Dictionary 1215 (2d College Ed. 1991).
This Court finds that the better interpretation of § 2327(a) is that the phrase "such subsequent permanent injury" applies to employees who sustained such an injury while employed with a subsequent employer. Although this conclusion may not be, in and of itself, sufficient to conclude that § 2327 precludes reimbursement when two or more injuries happen while employed with the same employer, this literal reading in conjunction with the precedents set forth by the Delaware courts support the conclusion that any reimbursement from the Fund is to be applied in situations when a second subsequent injury is sustained while an employee is employed with a subsequent employer.
IV. Conclusion
In its decision, the Board stated that it had "no choice" but to agree with the Fund's position. Although the Board stated that a plain reading of the statute "gives credence" to the argument set forth by Employer, the Board could not "ignore the precedent[s] of the Delaware Supreme and Superior courts." The Supreme Court has spoken on the issue and this Court is bound to follow the holdings of that court. Any change in the interpretation of § 2327 to allow an employer reimbursement by the Fund in a situation where two or more injuries occurred to the same employee while working for the same employer, will need to come from the Supreme Court; or alternatively, any legislative change to § 2327(a) must come from the General Assembly. Based on the foregoing this Court finds that the Board's decision was not an error of law and the decision of the Board is AFFIRMED.
IT IS SO ORDERED.