Opinion
C.A. No. 05A-01-005-JRS.
Submitted: September 16, 2005.
Decided: December 29, 2005.
Upon Appeal from the Industrial Accident Board. AFFIRMED.
ORDER
This 29th day of December, 2005, upon consideration of the appeal of Laor Rittenour ("Ms. Rittenour") from the decision of the Industrial Accident Board (the "Board") granting, in part, Astropower, Inc.'s ("Astropower") Petition to Terminate Benefits, it appears to the Court that:
1. On September 5, 2003, Ms. Rittenour filed a Petition to Determine Compensation Due with the Board alleging she injured her right shoulder on or about March 14, 2003, as a result of her work at Astropower. On January 30, 2004, after a hearing, the Board found that Ms. Rittenour's injury was compensable and determined that she was totally disabled. The Board awarded her total disability benefits going forward as of August 18, 2003, medical expenses that had been incurred, attorney's fees in the amount of $5,000.00 or thirty percent of the award (whichever was less), and payment of her medical witness fee.
See Docket Item ("D.I.") 7; D.I. 11.
D.I. 8, Ex. 3, at 17.
2. On August 24, 2004, Astropower filed a Petition to Terminate Benefits alleging that Ms. Rittenour was no longer disabled and could return to work. The Board held a hearing on the matter on December 6, 2004. On December 20, 2004, the Board granted Astropower's petition in part. The Board determined that Ms. Rittenour was capable of part-time work and was not a "displaced worker," and therefore discontinued her total disability benefits effective November 12, 2004. The Board awarded her ongoing partial disability benefits, attorney's fees and medical witness fees. Ms. Rittenour now appeals the Board's decision to terminate her total disability benefits.
See D.I. 7; D.I. 11.
3. On appeal, Ms. Rittenour contends that the Board erred as a matter of law in failing to accord Ms. Rittenour "displaced worker" status and that the Board's finding that Ms. Rittenour is not a prima facie "displaced worker" is manifestly against the weight of the evidence, based on incompetent evidence, and not supported by the record. She also argues that Astropower failed to meet its burden of proof to show that regular employment is available to Ms. Rittenour. Ms. Rittenour therefore claims she is entitled to total disability benefits.
See D.I. 7 at 9-18.
4. In an appeal of an order of the Board, the Court is obliged to review questions of law de novo and review questions of fact under the "substantial evidence" standard. Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It is "more than a scintilla but less than a preponderance of the evidence." The Court's function, therefore, is limited to determining whether substantial evidence supports the Board's findings of fact and whether errors of law exist.
Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998); Atkinson v. Delaware Curative Workshop, No. 00A-04-011, 2001 WL 38787, at *2 (Del.Super.Ct. Jan. 8, 2001).
Breeding v. Contractors-One, Inc., 549 A.2d 1102, 1104 (Del. 1998).
Id.
Atkinson, 2001 WL 38787, at *2.
5. The Court's standard of review does not permit the Court to sit as the trier of fact, to weigh the evidence or determine witness credibility. Determinations of credibility and of the weight to be given to the evidence are exclusively within the province of the Board. The Court will not reverse the Board simply because it might have reached a different conclusion if presented with the same evidence in the first instance. The "substantial evidence" standard of review contemplates a degree of deference to the Board's factual conclusions and its application of those conclusions to the appropriate legal standards.
Playtex Prod., Inc. v. Harris, No. 03A-10-003, 2004 WL 1965985, at *1-2 (Del.Super.Ct. Aug. 31, 2004).
See id. at *2.
Diamond Materials v. Manganaro, No. 98A-01-005, 1999 WL 1611274, at *2 (Del.Super.Ct. Apr. 8, 1999).
Hall v. Rollins Leasing, No. 96A-02-003, 1996 WL 659476, at *3 (Del.Super.Ct. Oct. 4, 1996) (citing DEL. CODE ANN. tit. 29, § 10142(d)).
6. After a former employer files a petition to terminate an employee's total disability benefits, the "employer bears the initial burden of demonstrating that the employee is no longer totally incapacitated for the purpose of working." If the employer is successful in establishing that the employee is not totally disabled, the burden shifts to the employee to show that she is a "displaced worker." A "displaced worker" is one who, "while not completely incapacitated for work, is so handicapped by a compensable injury that [she] will no longer be employed regularly in any well known branch of the competitive labor market and will require a specially-created job if [she] is to be steadily employed." An employee may be considered prima facie displaced based on the employee's "`physical impairment, coupled with other factors such as the injured employee's mental capacity, education, training, or age.'" However, even if the employee can not make a showing of prima facie displacement, she will still be considered a displaced worker if she "has made reasonable efforts to secure suitable employment which have been unsuccessful because of the injury." If the employee can make a prima facie showing that she is displaced, or she establishes that she has been unable to obtain employment because of her injury, then "the burden shifts back to the employer to show the availability of work within the employee's capabilities." This burden merely requires the employer to show "that work generally exists within the employee's specific restrictions. The employer need not show that someone has actually agreed to hire the employee[.]"
Torres v. Allen Family Foods, 672 A.2d 26, 30 (Del. 1995) (citing Governor Bacon Health Ctr. v. Noll, 315 A.2d 601, 603 (Del.Super.Ct. 1974)).
Torres, 672 A.2d at 30.
Ham v. Chrysler Corp., 231 A.2d 258, 261 (Del. 1967).
Torres, 672 A.2d at 30 (quoting Franklin Fabricators v. Irwin, 306 A.2d 734, 737 (Del. 1973)).
Franklin Fabricators, 306 A.2d at 737.
Torres, 672 A.2d at 30.
Miranda v. E.I. DuPont, No. 99A-04-015, 2000 WL 303317, at *2 (Del.Super.Ct. Feb. 29, 2000).
7. It appears from the briefs that Ms. Rittenour does not argue that Astropower failed to meet its initial burden of demonstrating that she is no longer totally disabled. This is likely due to the fact that, in determining Ms. Rittenour's level of disability, the Board primarily relied upon the opinions of her attending surgeon, Dr. Victor Kalman, and rejected the findings of Dr. Andrew Gelman, who testified on behalf of Astropower. Dr. Kalman opined that Ms. Rittenour could return to work gradually in October 2004, but noted that she was still actively engaged in physical therapy and therefore could not perform full-time work. In finding Dr. Kalman's "testimony persuasive and accept[ing] his opinions[,]" the Board determined that Ms. Rittenour was totally disabled up to November 12, 2004 (the date when she was discharged from physical therapy), and concluded that after that date she was capable of working four-hours per day or 20-hours per week. The Board determined that Ms. Rittenour was no longer totally disabled after November 12, 2004, the burden then shifted to Ms. Rittenour to establish that she was a "displaced worker."
See D.I. 7 at 8-18; D.I. 16.
Dr. Gelman believed that Ms. Rittenour was capable of full-time work throughout her injury and surgical period. The Board rejected his findings and found his opinions unsupported by the diagnostic and objective medical evidence. The Board therefore did not find Ms. Rittenour "capable of returning to work based on Dr. Gelman's timeline until Dr. Kalman agreed that [she] could return to work." D.I. 7, Ex. B, at 6.
See id. at 6-7.
8. At the hearing, Ms. Rittenour did attempt to establish that she is a prima facie displaced worker due to her injury, mental capacity, education, training and age. The Board, however, determined that she failed to meet her burden and concluded that:
See D.I. 3, Tr. of Hr'g, at 89-92.
Claimant's physical impairment requires her to be in sedentary to light duty positions with the ability to move around and restrict her right arm/shoulder use. Claimant is fifty-two years old. She has a high school education. While the Board accepts that Claimant may be somewhat disadvantaged by some language difficulties, the Board was favorably impressed by her language abilities and presentation at the hearing. She may have difficulty with certain language comprehension tasks, but she is certainly not unintelligent. The Board finds that, based on Claimant's presentation at the hearing and her long residence in the United States, she evidenced ability and familiarity with the English language. While Claimant does have some impediments, they are not so severe as to render her unemployable. Indeed, Claimant has previously been employed by a variety of employers despite her language difficulties. In these circumstances, the Board does not find Claimant to be prima facie displaced.
D.I. 7, Ex. B, at 8.
Ms. Rittenour now challenges the Board's determination that she is not a displaced worker. Specifically, Ms. Rittenour contends that she is a prima facie displaced worker due to her physical impairment coupled with her inability to write or read English, her high school education received entirely in Thailand, her lack of any formal education or training while in the United States, her life-long employment in factory-type occupations, her need to remain on prescribed narcotics for pain management, and her dependency on family and friends. The Court disagrees.
D.I. 7 at 10.
9. A claimant's "ability to obtain employment in the past, when she had the same language and learning limitations, is an appropriate factor to consider, particularly when she is now claiming they are preventing her from finding employment." Here, the Board found unconvincing Ms. Rittenour's claims that her limitations in the English language and lack of education and training prevent her from finding employment. It based this finding on the fact that, while her proficiency in the English language may not be perfect, she evinced a sufficient understanding and comprehension of the language to participate meaningfully at the hearing. The Board further relied upon the fact that Ms. Rittenour's education, training and limitations in English have never prevented her from obtaining employment with multiple employers for the more than 20 years she has lived in the United States. While Ms. Rittenour argues that the evidence the Board relied upon establishes prima facie displacement, the Court "is not empowered to reverse the decision simply because there is more than one reasonable interpretation of the evidence." The evidence relied upon by the Board — that Ms. Rittenour has demonstrated an adequate familiarity with the English language at the hearing, and that her education, training and comprehension of English have not previously affected her employability — is the sort of evidence that a reasonable person would accept as sufficient to support the Board's finding that she is not a prima facie displaced worker. The Board's decision is, therefore, supported by substantial evidence. Moreover, because the Board considered Ms. Rittenour's injury, mental capacity, education, training and age in its decision, the ultimate factual determination is free from legal error. Accordingly, in the absence of evidence that Ms. Rittenour "made reasonable efforts to secure suitable employment which have been unsuccessful because of the injury[,]" the Board's finding that she is not a displaced worker must stand.
Santos v. Sodexho, Inc./Marriott, No. 04A-09-009, 2005 WL 1331781, at *3 (Del.Super.Ct. May 31, 2005).
D.I. 7, Ex. B, at 2, 7-8; see also D.I. 3, Tr. of Hr'g, at 17.
Call v. Westvaco, No. 95A-02-011, 1995 WL 790999, at *5 (Del.Super.Ct. Dec. 5, 1995); see also Diamond Materials, 1999 WL 1611274, at *2 ("[T]his 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.").
Franklin Fabricators, 306 A.2d at 737; see also Torres, 672 A.2d at 30 ("[E]ven if there is insufficient evidence for the employee to show that she is prima facie displaced, she is a displaced worker and deemed `totally disabled' . . . if she `has made reasonable efforts to secure suitable employment which have been unsuccessful because of the injury.'") (citation omitted); D.I. 3, Tr. of Hr'g, at 16-44, 68-73; D.I. 7; D.I. 16.
10. Lastly, Ms. Rittenour contends that Astropower failed to meet its burden to show that regular employment is available to her. However, because the Board's finding that Ms. Rittenour is not a displaced worker is supported by substantial evidence and free from legal error, Astropower was not required to carry the burden of showing that she can avail herself of regular employment.
See Torres, 672 A.2d at 30 ("Assuming that the employee can demonstrate that she is displaced, the burden shifts back to the employer to show the availability of work within the employee's capabilities.").
11. Based on the foregoing, the decision of the Board granting, in part, Astropower's Petition to Terminate Benefits is AFFIRMED.