Opinion
C.A. No. 00A-06-004 RSG.
Date Submitted: October 11, 2000.
Date Decided: January 31, 2001.
Upon Appeal from a Decision of the Industrial Accident Board: REVERSED .
ORDER
The matter before the Court concerns an appeal by Donald Shaner ("Claimant") from the May 18, 2000 decision by the Industrial Accident Board ("Board") denying Claimant's Petition to Determine Additional Compensation Due for injuries the Claimant sustained on November 30, 1987 while working for the State of Delaware ("Employer"). The decision was premised on the Board's finding that the Claimant did not sustain a decrease in earning capacity as a result of his work accident.
FACTS
Claimant was employed at the Delaware Correctional Center (DCC) as a Staff Lieutenant. In November of 1987, Claimant was responding to an emergency call alerting that a fight had broken out. In responding to the call, Claimant slipped and fell, resulting in an injury to his ankle which resulted in five surgeries to mend a snapped tendon in his ankle. Claimant was unable to continue working as a staff lieutenant at the DCC. He had been working at the DCC for approximately ten years. Claimant had attained the position of staff lieutenant at the age of twenty-five.
Since Claimant was unable to continue working as a staff lieutenant, the State of Delaware assisted him in locating a new position with the State's merit system. Claimant obtained a position with the Office of Probation and Parole (Social Service Specialist). Claimant has worked there ever since. Although the Social Service Specialist's was paygrade level 8, Claimant was told that he would earn the same salary he received as a Corrections Office, which is paygrade 13. Claimant was given a raise three months after starting the new position, against the merit system rules, so his new salary would remain equal to his prior position's salary. Claimant received periodic raises until he reached the maximum income under his classification in the state merit system. Claimant believed that he attained the maximum pay level he would have received as a staff lieutenant at the DCC. Claimant had instead reached the maximum income for a probation/parole officer, while the staff lieutenant's position continued to receive increased wages from 1995 through 1999. These raises were not matched dollar for dollar by the position Claimant held in the Office of Probation and Parole.
DISCUSSION
The Supreme Court has held that the function of the reviewing Court when considering appeals from the Industrial Accident Board is to correct errors of law and to determine whether the Board's decision is supported by substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. It merely determines if the evidence is legally adequate to support the agency's factual findings. Where the evidence is sufficient to support the Board's conclusions, its decision will not be disturbed absent an error of law.
Stoltz Management Co. v. Consumer Affairs Bd., Del.Supr., 616 A.2d 1205, 1208 (1992); General Motors Corp. v. Jarrell, Del.Supr., 493 A.2d 978, 980 1985); 29 Del. C. § 10142(d).
Oceanport Ind. v. Wilmington Stevedores, Del.Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del.Supr., 517 A.2d 295, 297 (1986), app. dism., Del.Supr., 515 A.2d 397 (1986).
Johnson v. Chrysler Corp., Del.Supr., 213 A.2d 64, 66 (1965).
Title 29 Del. C. § 10142(d).
General Motors Corp. v. Freeman, Del.Supr., 164 A.2d 686 (1960); Hunter v. Wright Transfer Supply Co., Del.Super., A.2d 296 (1949).
An employee who has a decrease in earning capacity due to a work injury is entitled to compensation. In order to recover partial disability benefits, Claimant must prove he has sustained an actual reduction in earnings. "His wages following the injury must, in fact, be less than they were preceding the injury." Under § 2325, partial disability benefits are calculated by subtracting the wages a Claimant received at the time of the accident from what the Claimant is capable of earning following the work accident. The critical question is whether the claimant is suffering a reduction in earning power as a result of the work-related accident. If an individual has lost earning power then the Claimant is entitled to partial disability.
Title 19 Del. C. § 2325.
Ernest Disabatino Sons, Inc. v. Apostolico, Del.Super., 260 A.2d 710, 712 (1969).
Johnson v. Chrysler Corp., Del.Super., CA. No. 84A-JL-18, Bifferato, J., (Nov. 26, 1985).
Hall v. Bell Atlantic Delaware, Inc., Del.Super., C.A. No. 97A-10-019-WTQ, Quillen, J., (Dec. 16, 1998).
Appellant argues the Board erred in denying the additional compensation due because Claimant is unable to earn that which he would have been entitled to at his prior position before the accident, therefore he has incurred a reduction in earning power. Appellant claims the Board failed to interpret the meaning of earning power as the ability or capacity to earn.
An employee who receives post-injury compensation equal to that earned by him before the injury will not, per se, defeat his claim for compensation. But where an injured employee returns to his former work for the same employer at the same or higher wage, this supports the notion that his earning capacity has not been impaired, and compensation will be denied unless there is some affirmative evidence of such impairment. Entitlement of partial disability benefits becomes fixed as of the date of the accident or injury. A computation must be based upon comparison of wage earnings at the time of the accident, and not a computation of post-accident wages.
Ruddy v. I.D. Griffith Co., Del.Supr., 237 A.2d 700, 703 (1968).
Id.
E.I. duPont de Nemours Co. v. Green, Del.Supr., 411 A.2d 953, 956 (1980).
Greggo Ferrara, Inc. v. Wade, Del.Super., C.A. No. 84A-AU-6, O'Hara, J., (November 18, 1985).
In this case, the Board did err in denying additional compensation to the Claimant. Claimant was injured in a work related accident. The State of Delaware helped Claimant obtain another job with the State through the merit system. Claimant continued to earn the same salary in his new position in the Probation and Parole Office as he made at the time of the accident in the staff lieutenant position. He continued to receive raises until he met the wage cap of that paygrade. Claimant clearly has suffered diminished earning capacity as a result of the accident since he is not capable of earning what a staff lieutenant would earn. If not for the accident, Claimant would have been eligible for the continued pay increases as a staff lieutenant to the maximum of that pay grade. Even though the State helped him transfer into a new position, the salary of a staff lieutenant continued to rise while he capped out at his new position. The proposition that Claimant has received a reduction of earning power can be supported by the fact that he is unable to earn that which he would have been entitled to in his prior position as staff lieutenant. The Board erred by failing to interpret the meaning of earning power as the capacity to earn. Claimant's loss in earning power has resulted in his loss of earning capability. It is only fair to look at the ability for potential income growth in deciding the loss of earning capability. The Board erred in concluding that Claimant did not sustain a decrease in earning capacity as a result of his work accident, and therefore, should be entitled to additional compensation.
CONCLUSION
For the reasons stated above, the decision of the Industrial Accident Board is hereby REVERSED and the case is REMANDED to the Board for determination of compensation in accordance with the decision of this Court.
IT IS SO ORDERED.