Opinion
C.A. No.: 98A-11-003-FFS.
Submitted: August 21, 2000.
Decided: November 30, 2000.
Upon Second Appeal From The Industrial Accident Board — REVERSED and REMANDED
Dear Counsel:
On June 30, 1999 the Court issued an Opinion and Order reversing the Industrial Accident Board's October 5, 1998 denial of Transport's Petition for Reimbursement From the Workers' Compensation Fund. The Board had refused to tap the Industrial Accident Board's Second Injury and Contingency Fund on Transport's behalf because the injured employee was a displaced worker, which meant that his disability was not entirely a product of his physical injuries. As discussed below, the Court remanded the case and instructed the Board on how to evaluate a Second Injury Fund case where the injured worker fit under the "odd-lot" or displaced worker category.
Instead of following the Court's instruction, the Board continued to consider the case under the mistaken belief that, as a matter of law, a second injury involving a displaced worker cannot support an award from the Second Injury Fund.
Specifically, the Court ordered:
In this case, the Board must consider closely the nature and extent of the worker's physical injuries. That analysis has not been undertaken, so far. The Board must further consider the extent to which the worker's economic displacement has contributed to his already established total disability. Then, the Board can decide whether and the extent to which the worker's previous and subsequent permanent injuries have resulted in the worker's total disability for purposes of [19 Del. C..] § 2327.
On remand, the Board began properly by considering the evidence regarding the nature and extent of the worker's physical injuries. The Board then focused too intently on and misread the Court's instruction:
The Board must further consider the extent to which the worker's economic displacement has contributed to his already established total disability.
Apparently, the Board could not get past the Court's reference to the worker's "already established" total disability. The Board noted:
Of course, Claimant's total disability was not "already established" at the time of the 1997 hearing. It was the decision from that hearing that resulted in a finding of total disability. As explained, Claimant's total disability was not "already established" prior to consideration of the economic displacement factors. (Emphasis in original)
The Court understood that the employee's total disability was established in 1997. And the Court further understood that the employee's qualification as a displaced worker took into account economic factors. The Court's point simply was that in its July 8, 1997 decision, the Board found that while employee is capable of performing sedentary work, employee is prima facie a displaced worker and therefore entitled to total disability benefits. The Court merely was implying that on remand, the Board would have to deal with its earlier finding and that it could not dismiss the claim just because economic factors helped establish the worker's entitlement to a disability pension.
In any event, in fastening on the Court's reference to the employee's "already established total disability," the Board ignored the Court's instruction that the Board "must further consider the extent to which the worker's economic displacement" factored into the disability. To the contrary, on remand, the Board rejected Transport's argument that "the Board was also to take into consideration Claimant's economic factors[.]" The Board mistakenly concluded, "but the Court has directed the Board to look solely at the injuries and consider to what extent those injuries resulted in Claimant's total disability."
As presented in the original decision here, it is settled that the Second Injury Fund pays when three criteria are met:
(a) A previous permanent injury and
(b) a subsequent permanent injury which
(c) results in total disability.
Total disability is defined in § 2326. Like the Court also explained in its original Opinion and Order, in Spence v. University of Delaware the Board tried to read § 2326 narrowly and limit the definition of "total disability" to the specific kinds of injuries and disabilities set out in § 2326. The Supreme Court stated clearly:
Del. Supr., 311 A.2d 867 (1973).
We conclude that the General Assembly intended to vest the Board with power to determine when there is a total disability resulting in a claim upon the Fund.
Id. at 869.
In other words, the Board has discretion as to whether a claim against the Second Injured Fund is good. And the Board is not limited to § 2326's specifics. Now, this Court has held that the Board's discretion allows it to make an award from the Second Injury Fund to a second employer of a displaced worker. The Board may not deny this claim as a matter of law and it must not attempt to reach that result merely by cloaking its decision with grudging reference to the Board's discretion.
In short, the case must go back to the Board again for proper consideration of the Spence criteria. The Board must consider whether there was a previous permanent injury and a subsequent permanent injury that resulted in total disability. With respect to whether the permanent injuries resulted in total disability, the Board may not make a finding of no total disability simply because the employee's physical injuries, by themselves and without considering economic factors, do not amount to a total disability. The Board must consider not only the nature and extent of the employee's physical injuries, but also the extent to which the worker's economic displacement contributes to his inability to work and then, consistent with Spence, the Board can decide an extent to which the employee's previous and subsequent permanent injuries have resulted in his total disability for purposes of § 2327.
For the foregoing reasons the February 15, 2000 decision of the Industrial Accident Board is REVERSED and REMANDED.
IT IS SO ORDERED.
P.S. At this point, the Court has issued two, written decisions on this case. Moreover, the court conducted an extensive oral argument. The Court appreciates the Board's refusal to agree with the Court's legal conclusion. Nevertheless, counsel for the Board clearly understands the Court's holding. Accordingly, the Court does not expect the Board to fasten again on one phrase in this decision and circumvent the Court's legal conclusion.