Opinion
C.A. No. 00A-07-002
DATE SUBMITTED: April 17, 2002
DATE DECIDED: July 22, 2002
Edward C. Gill, Esquire, P.O. Box 824, Georgetown, DE 19947, attorney for claimant below/appellant.
Maria Paris Newill, Esquire, P.O. Box 128, Wilmington, DE 19899-0128, attorney for employer below/appellee.
MEMORANDUM OPINION
Pending before the Court is an appeal which claimant Frank Lloyd ("claimant") has filed from a decision of the Industrial Accident Board ("the Board") regarding his entitlement to benefits pursuant to 19 Del. C., ch. 23. This is my decision affirming the Board's decision.
FACTS AND PROCEDURAL HISTORY
On December 28, 1998, while working as a truck driver for Eagle Transport ("employer"), claimant injured his right foot. He immediately reported the accident, but did not believe that he had sustained serious injuries. Then, on January 16, 1999, it became clear to claimant that he was suffering from a serious injury to his right foot. Claimant never again worked for employer.
Claimant began treating with John E. Spieker, M.D., an orthopedic surgeon. That treatment did not provide him relief. He finally paid, out of his own pocket, to see Patrick Kulina, M.D., a podiatrist, who referred him to a surgeon in Philadelphia. He obtained relief from pain after he had surgery in May, 2000. Thereafter, claimant obtained a job at Mountaire beginning June 16, 2000, as a truck driver with no wage loss.
Claimant is a Delaware resident. Employer is a Maryland company. The accident occurred in Maryland. Employer, under its Maryland workers' compensation policy, began paying claimant benefits pursuant to Maryland law from January 16, 1999.
On October 1, 1999, claimant met with Reene Berk Gleckner, a vocational rehabilitation specialist. The State of Maryland assigned her to develop a vocational plan with claimant since vocational placement efforts are mandatory under Maryland's workers' compensation system. Claimant drove himself from Sussex County to Kent County for the meeting. Claimant previously had told her that he had three job leads. Claimant was to complete a resume and proposed vocational plan and return them to her. He did not make the submissions as agreed and Ms. Gleckner attempted to contact him. He did not return her phone calls or respond to her certified letter. Maryland terminated his total disability benefits because he did not cooperate with vocational placement. Payments ceased on October 28, 1999.
Transcript from June 16, 2000 Board hearing at pages 39 and 100.
On December 17, 1999, claimant filed with the Board a Petition to Determine Compensation Due, not a petition for review of an agreement. That petition specifies:
The undersigned petitioner respectfully represents: That the above named claimant and the above named employer have failed to reach an agreement in regard to compensation due said claimant as an employee of said employer. [Emphasis added.]
Pursuant to that petition, claimant sought medical expenses and ongoing total disability benefits from January 16, 1999, with a credit for benefits the Maryland carrier had paid.
The Board held a hearing in the matter on June 16, 2000. Claimant did not establish what Maryland law provides regarding the payment of workers' compensation benefits nor did he present any specifics regarding the Maryland payments. The only evidence regarding Maryland benefits is that set forth above.
A summary of the evidence, in addition to that referenced above, which was presented at the Board is set forth below.
Claimant testified as follows.
He initially was injured on December 28, 1998. The injury was not serious until January 16, 1999; on that date, his foot gave out when he tripped on a hose at work. He was able to return to work as a truck driver at no wage loss on June 26, 2000.
Claimant could not drive a truck before his surgery because he could not use his right foot to apply the brakes. Although claimant admitted driving his personal vehicle at times, he could not drive to a job because driving caused too much pain and was too awkward. Dr. Spieker said "not yet" whenever he asked about returning to work.
Claimant graduated from high school and attended some college. He has worked as a restaurant owner, insurance manager, sales representative and truck driver. He was a medic in the Army.
In May, 1999, when he "was going to the poor house", he interviewed for a job as a sales representative with a Wisconsin company, and the representative told him to contact him when he was able to drive.
Transcript of June 16, 2000 Board hearing at page 42.
Claimant testified as follows regarding what he learned about working for employer after Dr. Spieker put restrictions on him:
I had requested — or the nurse that works with Del Valley, asked if there was anything out there at the office — Eagle office, if anything could be done. And they said that supposedly by Mr. Paska that if I couldn't drive, they had nothing for me.
Transcript from June 16, 2000 Board hearing at page 21.
Dr. Kulina testified on behalf of claimant by deposition. Jerry Case, M.D., who also appeared by deposition, testified on behalf of employer. Both doctors attributed claimant's injury to the work-related accident.
Dr. Kulina recommended sedentary work restrictions which would be appropriate back to the date of the accident. These restrictions precluded claimant using his right foot to control a vehicle.
Dr. Case considered claimant's medical treatment to be reasonable and necessary. He testified the surgery and recovery period would cause claimant to be out of work for a few days. Dr. Case concluded that claimant was capable of sedentary work from the time of the accident up until the time of his deposition. Claimant had told him he could drive a personal vehicle but feared driving a tanker truck. Dr. Case saw no reason why claimant could not have driven a car. He was of the opinion that Dr. Spieker's restriction on driving in 1999 was for driving a truck, not a personal vehicle. Dr. Case also approved the positions identified in employer's labor market survey since they were sedentary positions which did not require long periods of standing.
Claimant did not call Dr. Spieker as a witness.
Testimony from a co-worker established that claimant was driving a personal vehicle in 1999.
Michael Paska, a terminal manager for employer, testified to the following. For the first two weeks after the injury, he attempted to contact claimant but was unsuccessful. Later, the carrier inquired about modified duty but claimant's restrictions were too strict for employer to accommodate claimant.
Ms. Gleckner testified to the following in addition to the above-noted facts regarding claimant's refusal to participate in job placement. She performed a labor market survey to determine the availability of suitable employment for claimant. She identified seven sedentary positions and one light duty position in Kent and Sussex Counties that were available during the period from January 20, 1999, until March 7, 2000.
Both claimant and employer agreed that Delaware had jurisdiction over claimant's petition pursuant to 19 Del. C. § 2303(a). There is nothing in the record to support this concession. Claimant's attorney notes at page 2 of the transcript of the June 16, 2000, Board hearing that there is substantial business in Delaware. That, in and of itself, does not give Delaware jurisdiction. Instead, the elements of 19 Del. C. § 2303(a) must be established. Garcia v. E.I. DuPont deNemours and Co., Del. Super., C.A. No. 99A-04-011, Toliver, J. (March 16, 2000). However, it would be inequitable to dismiss this case on jurisdictional grounds at this time where claimant has received an award and employer has conceded jurisdiction.
In 19 Del. C. § 2303(a), it is provided in pertinent part:
If an employee, while working outside the territorial limits of this State, suffers an injury on account of which the employee . . . would have been entitled to the benefits provided by this chapter had such injury occurred within this State, such employee . . . shall be entitled to the benefits provided by this chapter, provided that at the time of such injury:
(1) The employee's employment is principally localized in this State; or
(2) The employee is working under a contract of hire made in this State in employment not principally localized in any state; or
(3) The employee is working under a contract of hire made in this State in employment principally localized in another state whose workers' compensation law is not applicable to the employee's employer; or
(4) The employee is working under a contract of hire made in this State for employment outside the United States and Canada.
Claimant argued the burden of proof was on employer to show that claimant's total disability had ended. Employer argued claimant had started over by filing the initial petition in Delaware, and it was claimant's burden to prove his case. Employer maintained that claimant did not injure his foot in a compensable work accident and if he did, he did not become totally disabled until the recovery period from his May 2000 surgery.
The Board found and concluded as follows.
Compensability
Claimant argues that by paying benefits under its Maryland policy, Eagle has accepted compensability of the work injury and that Eagle can only terminate total disability benefits pursuant to a Petition for Review, for which Eagle would have the burden of proof. The Board, however, agrees with Eagle that it has not accepted compensability under Delaware law. The criteria for compensability of an injury may be different in Maryland. In addition, Eagle apparently was not required to file a petition in Maryland to terminate benefits; total disability payments ceased upon Ms. Gleckner's report that Claimant was not cooperating with vocational placement efforts. Claimant cannot simply switch states in mid-claim and expect Eagle to now have to file a Petition for Review in Delaware in order to cease payments. For these reasons, Claimant must proceed with an initial petition, without regard to any agreement reached under Maryland law.
* * * Both doctors attributed the foot injury to the December 1998 work accident, based on Claimant's history. For these reasons, the Board finds that the December 28, 1998 work accident caused Claimant's foot injury.
Total Disability
Claimant seeks total disability benefits from January 16, 1999, until he starts work on June 26, 2000, with a credit for benefits paid by the Maryland carrier. Both Dr. Kulina and Dr. Case, however, testified that Claimant has been capable of sedentary work all the way back to the December 1998 work accident. His injury, after all, only affects his right foot and he always has been capable of walking. Claimant claims that he was unable to drive, as per Dr. Spieker's recommendations, and, therefore, was unable to commute to work. Claimant, however, was seen driving several times in 1999 by Mr. Williams and by Ms. Gleckner. For this reason, the Board accepts Dr. Case's testimony that Dr. Spieker's recommendation against driving was likely targeted to tanker truck driving rather than driving a personal vehicle. Thus, Claimant was capable of driving to work.
For these reasons, the Board finds that the work injury has not caused Claimant to be physically totally disabled until his recovery from the May 2000 arthroscopy. Dr. Case testified that he should be out of work for a few days after surgery. Based on this testimony, the Board finds that Claimant was physically totally disabled for one week in May 2000.
The Board then went on to discuss whether claimant had established he was economically totally disabled either because he was prima facie a "displaced worker" or because he had made a reasonable job search that failed because of his work injury. It found and concluded as follows:
* * * Claimant did not argue that he is prima facie displaced and, based on his high school education, his experience in sales, his excellent communication skills, and the fact that his injury only affects his right foot, the Board finds that he is not.
Regarding Claimant's job search, Claimant testified that he interviewed with a company from Wisconsin in May 1999 and that he contacted Perdue, prior to recently securing a position with Mountaire. In addition, Ms. Gleckner testified that Claimant had reported three job leads when she met with him in October 1999. These few contacts do not constitute a reasonable job search when he was out of work for sixteen months prior to surgery. Furthermore, a reasonable job search would have included more cooperation with Ms. Gleckner, the vocational placement specialist assigned to Claimant's case. Ms. Gleckner testified that Claimant failed to follow-up on their efforts to produce a resume and a plan for finding work. For these reasons, the Board finds that Claimant did not conduct a reasonable job search. Thus, he has not shown that he was vocationally displaced from the labor market.
Claimant argues he was not obligated to conduct a job search because he remained employed by Eagle. See Hoey v. Chrysler Motors Corp., Del. Supr., No. 85, 1994, Hartnett, J., slip op. at 4 (December 28, 1994) (when the employer has terminated the employee and has held out the possibility that he may return to work, the employee is relieved of the responsibility to look for work). Claimant, however, knew he was obligated to look for work in accordance with the vocational plan he started with Ms. Gleckner. In fact, he reported that he had three job leads. In addition, Eagle never held out the possibility that it had a position for Claimant and, in fact, informed the carrier that it had no modified position for him. For these reasons, Hoey does not apply.
Delaware's Supreme Court has held that the employer and the employee share a mutual duty to obtain employment for the employee, the precise extent of which depends on the facts of the case. Chrysler Corporation v. Duff, Del. Supr., 314 A.2d 915, 918 (1973). In this case, Claimant failed to meet his responsibility to find work by failing to cooperate with the vocational placement specialist.
For these reasons, the Board finds that Claimant was totally disabled for only a one-week recovery period from the May 2000 surgery.
The Board further found the medical expenses to be compensable, denied attorney's fees because the settlement offer was greater than the award, and taxed medical witness fees as costs against employer. The Board offset the award by the income payments which the Maryland workers' compensation fund made.
Claimant appealed on several grounds. The parties have briefed the appeal and, at oral argument, defended their positions.
DISCUSSION
The Supreme Court and this Court repeatedly have emphasized the limited appellate review of the factual findings of an administrative agency. The function of the reviewing Court is to determine whether substantial evidence supports the agency's decision.
Johnson v. Chrysler Corporation, 213 A.2d 64, 66-67 (Del. 1965); General Motors v. Freeman, 164 A.2d 686, 688 (Del. 1960). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super. 1986), app. dism., 515 A.2d 397 (Del. 1986). The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. Johnson v. Chrysler, 213 A.2d at 66. It merely determines if the evidence is legally adequate to support the agency's factual findings. 29 Del. C. § 10142(d).
A) Implied Agreement
Claimant's first argument focuses on an implied agreement he contends existed. He argues the Board failed to address his contention that there was an implied agreement between claimant and employer to compensate claimant for temporary total disability and medical expenses. He further contends the Board improperly failed to find the existence of an implied agreement and thus, shifted the burden of proof to the employee to provide the compensability of the accident and what benefits were due. The burden, instead, should have been on the employer due to the existence of the implied agreement.
Claimant makes the following statement in his brief which is not correct: "The employer's counsel even recognized the existence of the implied agreement in her closing statement to the Industrial Accident Board." Employer's counsel did not make any such concession; she instead made an alternative argument when she said:
if there is an implied agreement, that agreement is under Maryland law and there was an implied agreement between the parties that this was a Maryland claim, acknowledged in Maryland. [Emphasis added.]
The Board decision found there was no implied agreement. That finding was correct.
Claimant had the burden of establishing an implied agreement, and he made no attempt to do so. Claimant did not establish Maryland worker's compensation law or the circumstances under which he received benefits from Maryland. The Board knew, and this Court knows, only that he received benefits from Maryland, claimant failed to abide by the laws of Maryland, and the benefits terminated. Claimant started anew in Delaware by filing an initial petition, claiming there was no agreement. If claimant wanted events which took place in Maryland to be binding, then he should have filed a petition for review and he should have presented evidence of what happened in Maryland. He cannot expect the Board, and now this Court, to fill in the blanks, make his case for him, and determine that there was some agreement.
Collateral estoppel may have been an appropriate theory to have pursued; however, claimant did nothing to establish the applicability of that theory.
Claimant chose to file an initial petition and did nothing to establish that the Maryland proceedings were binding in Delaware. The Board imposed upon him the burden accompanying the course of an initial proceeding. It was not erroneous for the Board to do so. This ground on appeal fails.
B) Duty to Seek Employment
Claimant argues that pursuant to Hoey v. Chrysler Motor Corp., Del. Supr., No. 85, 1994, Hartnett, J. (December 28, 1994) ("Hoey"), he was under no duty to seek employment until employer terminated him shortly before the Board hearing. In Hoey, the claimant was a Chrysler employee of seventeen years, and after a job injury, she was able to return to light-duty work. She saw a Chrysler employee every six weeks to check on her disability. She was kept on as an employee and did not seek work outside of Chrysler. She participated in therapy and a work-hardening program. Chrysler never told her light-duty work was unavailable and never terminated her. The Supreme Court held:
Under the facts in this case, it was not reasonable to expect Hoey to seek employment elsewhere until she was advised by Chrysler that no light-duty work would be available for her and she would be discharged. [Emphasis added.]
Hoey v. Chrysler Motor Corp., supra at 4.
The decision in Hoey is limited to the facts of that case. Jablonski v. Chrysler Corporation, Del. Super., C.A. No. 96A-02-011, Barron, J. (August 13, 1996); Jacobs v. Chrysler Motors Corporation, Del. Super., C.A. No. 95A-11-021, Herlihy, J. (June 12, 1996). Where Hoey is distinguishable, it does not apply.
Hoey is distinguishable because claimant is not prima facie displaced. Greene v. Kraft General Foods, Del. Super., C.A. No. 96A-11-002, Terry, J. (August 5, 1998). Since he was not prima facie displaced, it was his burden to show a reasonable job search. Id. Even if the Court decided that the applicability of Hoey should be examined despite the fact claimant was not prima facie displaced, Hoey does not apply because claimant was told there were no jobs within his restrictions. Greene v. Kraft General Foods, supra; Zigman v. State, Del. Super., C.A. No. 95A-03-001, Graves, J. (August 14, 1995). Employer did not string claimant along. Brady v. Home Paramount Pest Control, Del. Super., C.A. No. 99A-07-004, Herlihy, J. (December 20, 1999). Employer told claimant there were no jobs available, there was no evidence employer indicated claimant ever was to be given a light duty job, and claimant was looking for jobs himself. Claimant was employable and he could have obtained jobs within his restrictions. Lynch v. J. Baker, Inc., Del. Super., C.A. No. 97A-01-005, Lee, J. (October 27, 1997), aff'd, Del. Supr., No. 482, 1997, Berger, J. (April 1, 1998).
The Court affirms the decision of the Board that Hoey does not apply to the facts of this case.
C) Estoppel
Claimant's third argument is based upon estoppel. Claimant argues the following. Employer paid workers' compensation benefits from January 16, 1999, through October 28, 1999. Ms. Gleckner did not contact claimant until October 1, 1999. Claimant had been submitting disability slips to the employer and he remained employed with employer until he was fired before the Board hearing. Claimant's failure to look for a job was based upon his reliance upon the benefits he was being paid and his continued employment. Consequently, employer should be estopped from denying benefits that it actually paid through October 28, 1999.
Claimant cites to the case of State v. Proctor, Del. Super., C.A. No. 94A-05-1, Herlihy, J. (October 20, 1994), aff'd, Del. Supr., No. 419, 1994, Walsh, J. (March 30, 1995), in support of his estoppel argument. However, the facts of State v. Proctor, supra, are so different from those at hand that the case is of no help except for the proposition that at times, an employer may be estopped from denying compensability of an employee's workers' compensation claim. Consequently, I examine the elements for equitable estoppel and then apply them to the facts at hand.
As explained in Waggoner v. Laster, 581 A.2d 1127, 1136 (Del. 1990):
The doctrine of equitable estoppel may be invoked "when a party by his conduct intentionally or unintentionally leads another, in reliance upon that conduct, to change position to his detriment." [Citation omitted.] To establish estoppel it must be shown that the party claiming estoppel lacked knowledge or the means of obtaining knowledge of the truth of the facts in question; relied on the conduct of the party against whom estoppel is claimed; and suffered a prejudicial change of position as a result of his reliance. [Citation omitted.]
I conclude that the Board's decision indirectly addressed the estoppel doctrine and concluded it did not apply. Even if the Board did not reach such a conclusion, there is no basis in fact for the application of such doctrine. The facts as the Board found them were that employer told claimant it did not have work for him within his restrictions and that claimant was looking for jobs. The facts also establish that claimant was obligated to cooperate in seeking a job, and when he failed to do so, his benefits were terminated. Thus, claimant had knowledge employer did not have a job for him and his failure to look for a job was not based upon his reliance on continued employment with employer. Consequently, claimant cannot establish all elements of equitable estoppel, and this argument fails.
CONCLUSION
For the foregoing reasons, I affirm the Board's decision.
IT IS SO ORDERED.