Opinion
No. 00A-0J-001-VAB.
Submitted: March 27, 2000.
Decided: April 10, 2000.
Letter Opinion and Order on Employer Below/Appellee's Motion to Affirm the Industrial Accident Board — DECISION BELOW AFFIRMED.
Robert D. Underwood, 138 Conowingo Lake Rd., Conowingo, MD. 21918.
H. Garrett Baker, Esquire, Elzufon Austin, 1201 Market Street, P.O. Box 1630, Wilmington, DE. 19899.
Gentlemen:
The above-captioned case comes before the Court on Employer's Motion to Affirm a decision of the Industrial Accident Board pursuant to Superior Court Civil Rule 72.1(b). The Court considered everything that has been filed. The issue appears to be entirely factual. The Rule expressly provides that a Motion to Affirm may be granted when "it is manifest on the face of appellant's brief that the appeal is without merit because . . . [t]he issue on appeal from a commission or board is factual, and clearly there is substantial evidence to support the finding of facts below."
I note that the Superior Court, effective May 1, 2000, has repealed Civil Rule 72.1 including Motions to Affirm. It was suggested by a prominent member of the Bar that the Rule was causing more delay than expedition and, upon review, the Court determined that the best course was simply to eliminate the Rule. Accordingly, there will be no Motions to Affirm in the Superior Court beginning May 1, 2000.
The reasons for the Rule are obviously to reflect general standards of appellate review when it is "manifest" the appeal is without merit and "clearly" the findings of fact are supported by substantial evidence. The Supreme Court and this Court have repeatedly emphasized the limited review of the factual findings of an administrative agency. Carpenter v. Mattes Electric, C.A. No. 96A-07-005, Quillen, J. (Apr. 9, 1997). The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence and free from legal error. General Motors Corp. v. Freeman, Del. Supr., 3 Storey 74, 164 A.2d 686, 688 (1960); Johnson v. Chrysler Corp., Del. Supr., 9 Storey 48, 213 A.2d 64, 66-67 (1965). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind., Inc. v. Wilmington Stevedores Inc., Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), app. dism., Del. Supr., 515 A.2d 397 (1986). On appeal from the Board, the Superior Court does not sit as a trier of fact with authority to weigh the evidence, determine questions of credibility, and make its own factual findings and conclusions. Johnson, 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). If substantial evidence exists and the Board made no error of law, its decision must be affirmed. Breeding v. Contractors-One-Inc., Del. Supr., 549 A.2d 1102, 1104 (1988) (citing 29 Del. C. § 10142 (d); A. Mazzetti Sons, Inc. v. Ruffin, Del. Supr., 437 A.2d 1120 (1981); MA. Hartnett, Inc. v. Coleman, Del. Supr., 226 A.2d 910 (1967)).
The Employer has cited the Breeding case further for an alternate definition of substantial evidence. "It is also defined as more than a scintilla but less than a preponderance of the evidence." Justice Horsey in Breeding cited federal authority for the alternate definition. With deference to the Supreme Court, this Judge has never used that quoted language because he thinks it is inaccurate. In every case where a lower Court opinion is affirmed on the basis of substantial evidence, there has been a required finding by the forum below in favor of the appellee by a preponderance of the evidence. Thus, it simply seems wrong to define the reason for affirming a preponderance finding by a definitional standard which suggests a lesser requirement. The error comes from confusing two standards, the trial standard and the appellate standard. The trial standard for a factual finding is on the basis of more likely than not. The appellate standard is on the basis of whether the fact finder is legally permitted on the evidence of record to find the fact more likely than not. One cannot logically define the standard of appellate factual review by reference to the standard of proof at trial. For five years, our Supreme Court did not cite this sentence from Breeding, but it has recently slipped back into using the alternate language on rare occasion, most recently by Justice Walsh in Diamond Fuel Oil v. O'Neal, Del. Supr., 734 A.2d 1060, 1062 (1999). See also Klenk v. Medical Center of Delaware, Del. Supr., 702 A.2d 926 (1997) (Table), No. 273, 1997, Hartnett J. (Nov. 7, 1997) and Apartment Communities v. Adkins, Del. Supr., 690 A.2d 446 (1997) (Table), No. 494, 1996, Berger, J. (Jan. 16, 1997). If the Supreme Court finds merit in these comments, I would hope it would consider finding use of the questioned alternative sentence from Breeding unnecessary. Whether the Supreme Court gives such consideration is, of course, up to the Supreme Court, whose view is final.
This case was difficult because the Employer sought to terminate total disability benefits and the Board faced conflicting expert testimony and hard issues of credibility. But, before terminating total disability benefits on the Employer's petition, the Board wrote a thorough opinion based on a comprehensive record, summarizing in detail the evidence and giving clear and careful findings of fact and conclusions of law. It is simply hard to find any fault with the decision and any attempt to justify it by an appellate recitation of the evidence would simply dilute the effect of reading the Board's decision directly. The Board did its job in a hard case and did it well and should not be second-guessed on appeal. The decision was for the trier of fact. It is manifest that the appeal is without merit and clearly the findings of fact are supported by substantial evidence. The Motion to Affirm is GRANTED. IT IS SO ORDERED.
Sincerely, __________________ William T. Quillen
WTQ/caj oc: Prothonotary cc: Industrial Accident Board