Opinion
C.A. No. 02A-02-012 WCC.
Submitted: January 21, 2003.
Decided: May 30, 2003.
On Appellant's Appeal from the Industrial Accident Board.
Denied.
Craig T. Eliassen, Esquire, Dover, DE. Attorney for Employee-Appellant.
Scott R. Mondell, Esquire, H. Garrett Baker, Esquire, Wilmington, DE. Attorney for Employer-Appellee.
ORDER
This 30th day of May, 2003, after consideration of William McDougall's ("Appellant") appeal from the decision of the Industrial Accident Board ("Board") it appears that:
1. The facts associated with this appeal are not in dispute. Appellant is a former employee of Air Products Chemicals, Inc., ("Employer") where he was employed as an over the road truck driver. On July 18, 1990, Appellant was involved in a work-related motor vehicle accident. Several months later, Appellant sustained a stroke which the Board found to be work related. As a result of the stroke, Appellant suffered a permanent 34% loss of sexual function for which the Appellant and Employer agree is compensable pursuant to title 19, section 2326 of the Delaware Code. However, the parties were unable to agree as to what constituted "proper and equitable compensation" within the meaning of section 2326(g). Thus, the parties presented to a Hearing Officer evidence to determine whether claims for impairment of sexual function are based upon a scale of 250 weeks as asserted by Employer, or a scale of 300 weeks, as asserted by Appellant. Ultimately, the Hearing Officer concluded that Appellant was entitled to 85 weeks of compensation for his loss of sexual function based upon a scale of 250 weeks.
2. The issue before this Court is whether the Board, through its Hearing Officer, erred as a matter of law in awarding Appellant permanency benefits for an unscheduled loss of sexual function based upon a scale of 250 weeks of compensation, rather than 300 weeks. Appellant contends that impairment of sexual function should be based upon a scale of 300 weeks, the maximum available under law, relying on two decisions of the Board, Gillespie v. Milford Fertilizer Corp., and State v. Kelly. Under the rationale of these cases, a 34% impairment to sexual functions based upon a 300 week scale would equate to 102 weeks. Alternatively, Employer alleges that claims for impairment of sexual function are based upon a scale of 250 weeks, relying on two recent decisions by the Board, Lejeune v. Citisteel USA, Inc., and Lafferty v. James River Corp. Under these cases, a 34% impairment that is based upon a 250 week scale equates to 85 weeks of compensation. IAB Hearing No. 987311 (January 20, 1998).
IAB Hearing No. 888764 (December 14, 1992).
IAB Hearing No. 775674 (September 15, 1987); aff'd, State v. Kelly, 1989 WL 25900 (Del.Super.Ct.).
IAB Hearing No. 943272 (November 16, 1995).
3. On appeal from the Industrial Accident Board, the function of the Superior Court is to determine whether the Board's decision is supported by substantial evidence and free from legal error. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The Court is not the trier of fact nor has the authority to weigh evidence, determine questions of credibility, or make its own factual findings and conclusions. Rather, this Court merely determines if the evidence is legally adequate to support the Board's factual findings. Weighing the evidence and determining questions of credibility, which are implicit in factual findings, are functions reserved exclusively for the Board. The case sub judice solely involves an issue of law. Therefore, this Court's review is de novo.
Devine v. Advanced Power Control, Inc., 663 A.2d 1205, 1209 (Del.Super.Ct. 1995) (citing General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965); General Motors Corp. v. Jarrell, 493 A.2d 978, 980 (Del.Super.Ct. 1985)).
Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994).
Johnson v. Chrysler Corp., 213 A.2d 64 (Del. 1965).
DEL. CODE ANN tit. 29, § 10142(d) (Supp. 2002).
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1106 (Del. 1988); Conner v. Wells Fargo, 1994 WL 682486 (Del.Super.Ct.).
Stevens v. State, 802 A.2d 939, 944 (Del.Super.Ct. 2002) (citing State of Delaware v. Worsham, 638 A.2d 1104, 1106 (Del. 1994)).
4. Compensation for permanent injuries is addressed under title 19, section 2326 of the Delaware Code. This section provides a fixed scale or "schedule" for the amount of compensation to be awarded for the loss of certain body members enumerated therein. For obvious reasons, the legislature could not include every conceivable permanent physical injury and for those unscheduled losses, subsection (g) was included which states:
See DEL. CODE ANN. tit 19, § 2326(a) through (f); see also Alloy Surfaces Co. v. Cicamore, 221 A.2d 480, 482 (Del. 1966).
(g) The Board shall award proper and equitable compensation for the loss of any member or part of the body or loss of use of any member or part of the body up to 300 weeks which shall be paid at the rate of 66 2/3 percent of wages, but no compensation shall be awarded when such loss was caused by the loss of or the loss of use of a member of the body for which compensation payments are already provided by the terms of this section.
DEL. CODE ANN. tit 19, § 2326(g) (Supp. 2002).
"Any award granted under this section must bear a proper relationship to the specific awards established in other areas of § 2326." And while the Board is not mandated to grant a 300 week award for the total loss of any body part, the award must be "proper and equitable."
State v. Kelly, 1989 WL 25900 at *2 (citations omitted).
Id.
5. Because sexual impairment is an unscheduled loss for which there are conflicting authorities, an overview of case law is necessary. The Delaware Supreme Court in Guy Johnston Construction Co. v. Kennedy held that a sexual organ is a specific identifiable member of the body, and as such is compensable under the statute. In this opinion, the Supreme Court affirmed the Superior Court and the Board in awarding benefits for a 50% loss of his sexual organ where the claimant lost sexual function but retained the urinary function of his penis, thereby recognizing the dual function of the penis, i.e., sexual and urinary. This case was later interpreted by the Board "to stand for the proposition [that] a complete loss of sexual function without a loss of bladder control results in only a 50% loss of the total function of the penis." Thus, the rationale began that the penis serves two functions, sexual and urinary, awarding compensation for 50% of the total 300 weeks available for an unscheduled loss of use of the male organ when a claimant lost the ability to achieve an erection but otherwise retained the use of this penis as a conduit for the passage of urine. Consistent with this rationale, in Ware v. Baker Driveway, Inc., the Board assigned 150 weeks to the sexual function of the penis and 150 weeks to the urinary function since the unscheduled "member or part of the body" could be valued up to 300 weeks under section 2326(g).
See Guy Johnston Constr. Co. v. Kennedy, 287 A.2d 658 (Del. 1972) (holding "The sexual organ is a specific identifiable member or organ of the body, and loss of its use is compensable under subsection (g)."). Id. at 660.
See Adams v. Perdue, Del. Super., C.A. No. 90A-SE-4, Steele, J. (Jan. 5, 1993) (ORDER) at 4.
Ware v. Baker Driveway, Inc., IAB Hearing No. 335176 (April 9, 1973).
See also Figaro v. Brandywine Country Club, IAB Hearing No. 581861 (July 24, 1986).
6. Subsequently, the Board's analysis changed in Kelly v. State of Delaware, where the Board analyzed the loss of sexual function by comparing that loss to scheduled members under section 2326(d) and concluded that a total loss of sexual function should be valued at 300 weeks. This decision was affirmed on appeal by the Superior Court in State v. Kelly. Before the Court in Kelly was "whether the awards for the unscheduled losses granted by the Board were relative to the awards granted for their scheduled losses as mandated by law." Upon review of the facts of that case, the Court found the Board's decision to award the maximum 300 weeks of compensation to be "logical and sound" and therefore to be a "proper and equitable" award. The rationale of Kelly was followed in Gillespie v. Milford Fertilizer Co., where the Board found the 300 week schedule to be more in line with scheduled impairments, as the function of the sexual organ was considered by the Board to be "more important than a leg, which is scheduled at 250 weeks."
Kelly v. State of Delaware, IAB Hearing No. 775674 (September 15, 1987).
State v. Kelly, 1989 WL 25900 (Del.Super.Ct.).
Id. at *1.
IAB Hearing No. 888764 (December 14, 1992).
7. The difficulty in harmonizing this series of cases was noted by then Judge Steele in Adams v. Perdue. Holding the Board's attachment of equal value to the male organ for sexual and urinary functions to be arbitrary and further noting that "[t]he Delaware Supreme Court requires an unscheduled award under § 2326(g) to `bear some proper relationship to the specific awards provided in other parts of § [2326]'", the Court remanded the Adams' case to the Board for an explanation of the awarding of equal benefits and consideration of the proper relationship of the compensation awarded to the specific scheduled awards.
Adams v. Perdue, Del. Super., C.A. No. 90A-SE-4, Steele, J. (January 5, 1993) (ORDER).
Id. at 6 (internal citation omitted) (citing Alloy Surfaces Co. v. Cicamore, 221 A.2d 480 (Del. 1966)).
8. Consistent with this prompting from Judge Steele, the Board reviewed its precedent concerning compensation for permanent impairment of sexual function in Lafferty v. James River Corp., and abandoned the analysis of Kelly and Gillespie. Regarding the 300 week maximum schedule awarded in Kelly, the Board held that the "analysis ignored the urinary function of the penis as conduit for urine and is therefore flawed." Further, the Board in Lafferty concluded that the sexual function of the penis should be given more significant weight since the urinary control is attributed to the bladder, which is already scheduled at 300 weeks. Therefore, the Board concluded that "the sexual function of the penis if totally impaired is 250 weeks and the urinary function is 50 weeks so that the [total] member is 300 weeks." Subsequently, the Board again addressed the issue of compensation for permanent impairment of sexual function in Lejeune v. Citisteel USA Inc. In this case, the Board recognized that it was an unscheduled loss and relied upon its prior ruling in Lafferty, holding that the maximum compensation for a purely sexual loss of the penis to be 250 weeks.
IAB Hearing No. 943272 (November 16, 1995).
IAB Hearing No. 987311 (January 20, 1998).
9. Upon review of this case law, the Court finds the Hearing Officer did not err as a matter of law. It is not surprising that as an unscheduled loss, the determination of the appropriate compensation factor for loss of sexual function would take some time to evolve and to be tested in the courts. The Board has appropriately reacted to the limited guidance the Court has provided in this area and therefore, the Court holds that the Hearing Officer's decision, recognizing that the sexual function of the penis is deserving of 250 weeks out of a maximum of 300, with 50 weeks reserved if there is permanent loss of urinary function is a legally rational and reasonable finding and was not an error of law. The 250 week schedule is consistent with the Delaware Supreme Court's recognition of the dual function of the sexual organ and this Court finds the division of functions even more appropriate given the Board's granting of 300 weeks compensation for the loss of bladder control, an event primarily associated with urinary functions. The Court declines to follow State v. Kelly, as its affirmance of the maximum 300 week compensation for impairment of sexual function is inconsistent with the Delaware Supreme Court's decisions in Guy Johnston and Ware and did not have the benefit of the evolution of more developed case law and further consideration by the Board in this area.
See Guy Johnston Constr. Co. v. Kennedy, 287 A.2d 658 (Del. 1972); Ware v. Baker Driveway, Inc., 295 A.2d 734 (Del.Super.Ct. 1972), aff'd, Baker Driveway, Inc. v. Ware, 303 A.2d 358 (Del. 1973), overruled in part by Beam v. Chrysler Corp., 332 A.2d 143 (Del. 1975) (overruling the Superior Court's interpretation of the phrase "clothed normally" as used in section 2326(f)).
Kelly v. State, IAB Hearing No. 775674 (awarding 300 weeks for 100% impairment to claimant's bladder); Lafferty v. James River Corp., IAB Hearing No. 943272 ("Urinary control is with the bladder which is valued at 300 weeks.").
1989 WL 25900 (Del.Super.Ct.)
10. As a result of the above, the decision of the Industrial Accident Board is affirmed and the Appellant's appeal is DENIED.