Opinion
Civil Action No. 00A-02-014-JOH.
Submitted: July 14, 2000.
Decided: September 11, 2000.
Upon Appeal from a Decision of the industrial Accident Board — Affirmed.
John I. Klusman, Jr., Esq., of Tybout, Redfearn Pell, attorney for employer-below/appellant.
Robert P. Lobue, Esq., of Wilmington, Delaware, attorney for employee-below/appellee.
MEMORANDUM OPINION
Layton Home for the Aged appeals an Industrial Accident Board award of total disability benefits to its former employee Daisy Curtis. It is undisputed that Curtis injured her back when moving a patient. Subsequent to her injury, Curtis and the Layton Home entered into several agreements as to compensation. All were approved by the Board. The last one was a commutation agreement for permanent partial disability which was approved in March 1999. Later that year, Curtis petitioned for additional compensation due claiming recurrence of total disability benefits retroactive to the date of the Board's approval of the earlier 1999 compensation agreement.
The Board determined that Curtis was a displaced worker and awarded total disability benefits. Layton Home argued that before reaching that conclusion, it had to find that there had been a change in Curtis' condition. This, it claimed, was mandated by the earlier partial disability agreement.
The Board held it did not have to make that threshold determination. Under the circumstances of this case, the Court holds that Curtis did not have to show, nor the Board find, changed circumstances to award her total disability benefits. Further, the Court finds the Board's finding that Curtis is a displaced worker is supported by substantial evidence.
FACTUAL BACKGROUND
On April 5, 1995, Curtis was employed by the Layton Home and was performing job duties when she injured her low back trying to move a patient. On October 29, 1996, Curtis had surgery to the L4-L5 where her disc was removed, a bone graft and screws were inserted in the L4-L5 bones and connected with a metal plate. She has not returned to work since her injury. Curtis now suffers from other physical conditions related to the injury including: loss of control of her bladder, chronic pain in both legs, chronic pain that affects her mental functions, sleeping disorder caused from chronic pain and audio sensory nerve damage in the right ear which developed after a steroid block injection. She is now 58 years old and has a tenth grade education.
Under terms of several agreements as to compensation, Curtis was paid temporary total disability benefits from April 5, 1995 until July 11, 1996. Then a subsequent period of temporary total disability benefits were paid from October 1, 1996 to March 28, 1999. These various agreements were approved by the Board. On March 29, 1999, the parties stipulated to end payment of temporary total disability benefits and agreed Layton Home would pay Curtis $5,000 which was a commutation of 300 weeks, the maximum allowed, of partial disability benefits of $20 per week. This stipulation was also approved by the Board.
Copies were included in the record forwarded to the Court for this appeal.
Unlike the earlier agreements as to compensation, this one was not forwarded with the record. Layton Home included it in its brief, Curtis referred to it in her brief and did not object to the record being "expanded" to include it.
The stipulation, in pertinent part, states:
2. The parties have further agreed that [Curtis] shall have the right to receive benefits with respect to any claim for permanent impairment, medical expenses, or future total disability benefits. However, there shall not be any basis for any past, present, or future claims with respect to logs of earning capacity as set forth in 19 Del. C. § 2325. Further, in the event that [Curtis] has a recurrence of total disability at any time from the date of this Order through the 300 week period allowable for receipt of partial disability, the carrier shall be entitled to a credit against such claim in the amount of $20.00 weekly during such 3.00 week period to be applied against any total disability payment otherwise due during such period.
3. Neither party waives its right to litigate any and all issues regarding total disability other than the payment credit provisions referenced in paragraph 2 above.
Stipulation and Order (March 29, 1999) at 1-2.
Curtis, of course, signed the stipulation and Layton Home sent her a check for $5,000, but she did not cash it. Several years before the March 1999 stipulation, she had moved to Georgia to live with a daughter. She had been to Wilmington for possible Board proceedings in early 1999 and a medical examination by Layton Home. When she returned to Georgia, she had second thoughts about the stipulation and wanted to pursue total disability. That is why she never cashed the $5,000 check.
She filed her petition for additional compensation due in September 28, 1999 claiming a recurrence of her total disability. When the petition came up for a hearing on February 4, 2000, her position was that she was seeking total disability as a displaced worker. The record is undisputed that from March 29, 1999 to September 29, 1999, when she filed the petition, to February 2000, her physical condition had not changed, specifically it had not deteriorated.
Layton Home argued before the Board that to be entitled to total disability, Curtis had to show a negative change in condition between March 29, 1999, when she agreed to a permanent partial disability, and September 29, 1999 and that without such a change, she is capable of working in some capacity and work is available for her. The Board did not agree with Layton Home's position.
The Board heard testimony from Curtis, her treating doctor in Georgia and a doctor in Delaware who had examined her several times on behalf of Layton Home. It also heard from a vocational expert from Georgia who presented testimony about job opportunities there. After all of this evidence, the Board found Curtis to be a displaced worker. It examined her age, 58, her physical limitations, pain, inability to concentrate, the demands of the jobs the vocational expert noted and Curtis' inability to perform them, lack of transportation, limited education and job skills in reaching this result.
PARTIES' CONTENTIONS
Layton Home argues that the Board incorrectly applied the prima facia displaced worker standard, which is only used when a claimant is pursuing an initial claim for total disability benefits. Furthermore, it contends if temporary total disability benefits have been terminated, there can be no finding that a claimant is a prima facie displaced worker unless there had been some change in a claimant's condition. Since Curtis signed the commutation on the same date as the recurrence, Layton Home argues that there was no change in Curtis' medical condition and no change in the available employment, i.e., she was employable.
Layton Home argues that this is a case where Curtis changed her mind after signing the commutation agreement. This is illustrated by Curtis' attorney's opening statement at the hearing, "Upon reflection, Ms. Curtis upon returning home to Georgia, decided she was still totally disabled." Therefore, because Curtis wished to repudiate the agreement, the Board should not allow her to allege a recurrence and again qualify for temporary total disability benefits.
Board Transcript (February 4, 2000) at 3.
Curtis argues that in order to receive temporary total disability benefits, she can be totally disabled physically or she can be classified as a displaced worker. The Board did not directly address the total disability status, but determined that Curtis was a prima facia displaced worker and because Layton Home did not show that suitable employment was available, total disability was awarded.
Curtis argues that the change in condition burden is only applicable where a claimant is seeking a recurrence of total disability benefits based on physical condition. Further, the Board's decision, she argues, should be upheld because it properly considered the appropriate factors in determining that she is a displaced worker. Specifically, the Board analyzed the labor market survey and concluded that the jobs identified by Layton Home were not suited for Curtis.
STANDARD OF REVIEW
The duty of this Court on an appeal from the Board is to determine whether the Board's decision is supported by substantial evidence and free from legal error. Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." "The credibility of witnesses, the weight of their testimony and the factual inferences to be drawn therefrom are for the Board to determine." In reviewing the record for substantial evidence, the Court will consider the record in the light most favorable to the party prevailing below. The Court does not substitute its judgment for that of the Board.
Chicago Bridge and Iron Co. v. Walker, Del.Supr., 372 A.2d 185, 188 (1977).
General Motors Corp. v. Morgan, Del.Super., 286 A.2d 759, 760 (1971).
Breeding v. Contractors-One-Inc., Del.Supr., 549 A.2d 1102, 1104 (1988).
Coleman v. Dept. of Labor, Del.Super., 288 A.2d 285, 287 (1972).
Stigars v. Speakman, Del.Super., C.A. No. 92A-08-021, Herlihy, J. (March 19, 1993).
Director of Revenue v. Stoop, Del.Super., 611 A.2d 24, 26 (1992).
DISCUSSION
In the stipulation of March 29, 1999, both sides agreed that Curtis was not currently totally disabled physically. This is apparent because the contract considers that at a future time Curtis may have a "recurrence of total disability," indicating that she was currently not totally disabled. Although, this Court finds that once it has.been established that Curtis was not totally disabled physically, the question can still arise whether or not she is nevertheless totally disabled economically. In Ham v. Chrysler Corp., the Delaware Supreme Court determined that a worker "may be totally disabled economically, and within the meaning of the Workmen's Compensation law, although only partially disabled physically" to determine whether a claimant is totally disabled economically, the displaced worker standard is used. A displaced worker is one "while not completely incapacitated for work, is so handicapped by a compensable injury that he will no longer be employed regularly in any well known branch of the competitive labor market and will require a specially-created job if he is to be steadily employed." In displaced worker cases, the burden falls on the employer to show the availability to a claimant of suitable employment.This Court finds that the Board's determination of Curtis as a displaced worker is supported by substantial evidence and is, therefore, affirmed. Curtis' situation portrays an injured worker totally disabled, not physically, but economically by reason of the inability to obtain suitable employment. To determine whether Curtis is a displaced worker, the Board properly considered Curtis' physical condition. Curtis underwent a laminectomy, discectomy and fusion at the L4-L5 level. Furthermore, the experts do not differ significantly in their clinical findings. Curtis' pain is chronic and not treatable by medication because of allergic reaction.
Layton Home does not really dispute the Board's ultimate finding in this regard, since it accepts the proposition of the Board's right to accept certain testimony and reject other. In this instance, the Board accepted Curtis' evidence over Layton Home's.
Beyond Curtis' physical condition, the Board appropriately considered other factors provided in Ham, such as "employee's age, education, general background, occupational and general experience, emotional stability, the nature of the work performable under the physical impairment, and the availability of such work." Curtis only completed tenth grade and the other certifications that she has obtained will not help her find work within her physical restrictions. Although Curtis is very articulate and has the capacity for retraining, the Board found that Curtis' physical impairment, mental state, limited training and age, along with her audio sensory and bladder problems, render her a prima facia displaced worker. This Court agrees with the Board's determination.
Ham, 231 A.2d 260.
Layton Home's labor market analyst identified six jobs that the Board found to be unsuitable for Curtis. Several of the jobs required prolonged sitting or standing for extremely long shifts. One of the jobs required exposure to weather conditions and another job required Curtis to move quickly and use a great deal of physical strength. This Court agrees with the Board's determination that since Layton Home was unable to show employment was available within Curtis' capabilities, she will be considered a displaced worker and awarded compensation for total disability.
In short, the Board found that Curtis was an economically displaced worker. It is clear there had been no significant, if any, change in her condition in the interval between the March stipulation and the filing of her petition. Her partial disability, however, coupled with the other factors cited above, led the Board to reach its conclusion.
Layton Home's argument is that Curtis had to show a change in physical condition to qualify as a displaced worker. It cites Brokenbrough v. Chrysler Corp. in support of that argument. Brokenbrough is inapposite. There, the employee and employer had signed an agreement as to compensation providing for temporary total disability. The employer petitioned for review claiming the disability had ceased. The Board agreed. There is discussion about change of condition, but it is inapplicable to this case. In Brokenbrough, the employee's physical condition had changed. The Board and this Court rejected the employee's argument that seemed to say that the compensation agreement precluded review of the physical condition. Further, there was medical testimony upon which the Board relied to find the disability was over.
Del.Super., 460 A.2d 551 (1983).
Id. at 553.
In this case, as shown, there was medical testimony upon which the Board relied that, while Curtis' medical condition remained essentially unchanged, it created limitations under her circumstances making her economically displaced.
Curtis, in this instance, did not have to show a change in physical condition as a threshold matter. The Board, therefore, was correct in rejecting Layton Home's argument that she need to do so. An economically displaced worker does not always have to be totally physically disabled to meet the criteria of a displaced worker. This is one of those cases where that is true.
Ham, 231 A.2d at 261.
CONCLUSION
For the reasons stated herein, the decision of the Industrial Accident Board awarding total disability benefits to Daisy Curtis is Affirmed.