Opinion
C.A. No. 05A-05-007 JRJ.
Date Submitted: July 18, 2005.
Date Decided: November 15, 2005.
Appeal from a decision of the Industrial Accident Board — Affirmed.
Kimberly A. Harrison, Esquire, Wilmington, Delaware, Attorney for Appellant Value City Furniture.
Kenneth F. Carmine, Esquire, Wilmington, Delaware, Attorney for Appellee Scott Williams.
OPINION
This is the Court's decision on the Employer Value City Furniture's appeal of a decision of the Industrial Accident Board granting temporary partial disability to Claimant Scott Williams. For the reasons explained below, the Board's decision is AFFIRMED.
FACTS
Scott Williams (hereafter the "Claimant") was employed by Value City Furniture (hereafter the "Employer") as a furniture delivery person and a driver of a twenty-six foot box truck. While delivering furniture on July 31, 2003, the Claimant felt a pop in his left knee. On August 6, 2003, the Claimant was examined by Dr. Leo Raisis, M.D, a board certified orthopedic surgeon. Dr. Raisis ordered an MRI, which revealed a tear of the posterior horn of the meniscus. Dr. Raisis reccomended left knee arthroscopy and partial medial meniscectomy, which he performed in September, 2003. Following the surgery, Dr. Raisis released the Claimant to work with light duty restrictions, despite some continued pain. A second MRI revealed some changes to his medial meniscus and articular cartilage, and a second opinion rendered by Dr. Steve Delos recommended repeating the arthoscopic surgery. On February 19, 2004 Dr. Raisis performed a second arthroscopic procedure, and on April 5, 2004, Dr. Rasis released the Claimant to return to work with no restrictions. At that time, the Claimant began looking for a job, having been terminated by the Employer prior to being released to return to work. On September 27, 2004, Dr. Rasis released the Claimant from treatment despite continued complaints of pain in the knee with kneeling and squatting. On November 5, 2004, Dr. Rasis issued a report concerning permanent impairment. In that report, Dr. Rasis again released Claimant to return to work without restrictions, although he did indicate that the Claimant might have problems with kneeling, squatting and/or pivoting on his left knee. On November 4, 2004, Dr. Rasis approved each of six job descriptions provided to him as part of a labor market survey. Dr. Rasis stipulated that one of the jobs would not be recommended if the kneeling or squatting involved became a frequently required part of the job, and that driving a vehicle with a clutch may cause pain and an automatic vehicle would be better. William Hausch from Broadspire Care Management, the company that compiled the labor market survey, testified concerning the survey he performed. The wage range for the jobs identified in the survey was $10.00 per hour through $40,000 per year. All but the lowest paying of those jobs required a CDL license, which Hausch was mistakenly told the Claimant possessed. On March 19, 2005, the Claimant was hired by Towne Court Apartments as a maintenance person at the hourly rate of $10.00. The Claimant described his work activities as going to apartments to fix things, a job that required frequent trips up and down stairs, as well as frequent kneeling and squatting, activities which he stated caused the pain in his knee to become more severe. At this point, the Claimant was no longer treating with Dr. Rasis, because the Claimant felt that Dr. Rasis was not treating the injury appropriately. Instead, the Claimant was treating with Dr. Leitman and Dr. Grossinger.STANDARD OF REVIEW
On appeal, this Court determines whether the agency's decision is supported by substantial evidence and is free from legal error. Substantial evidence is such relevant evidence that a reasonable mind would accept as adequate to support a conclusion. This Court does not act as the trier of fact, nor does it have authority to weigh the evidence, decide issues of credibility, or make factual conclusions. The Court's review of conclusions of law is de novo. Absent an error of law, the Board's decision will not be disturbed where there is substantial evidence to support its conclusions.
General Motors v. McNemar, 202 A.2d 803, 805 (Del.Super. 1964); General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del.Super. 1960).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del.Super. 1994).
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del.Super. 1965).
Reese v. Home Budget Center, 619 A.2d 907 (Del.Super. 1992).
Dellachiesa v. General Motors Corp., 140 A.2d 137 (Del.Super. 1958).
DISCUSSION
The Board found that the Claimant has a reduced earning capacity as a result of the July 31, 2003 work injury, and is thus entitled to partial disability compensation. On appeal, the Employer argues that the Board erred as a matter of law in awarding temporary partial disability when the Claimant had no restrictions or limitations imposed by his treating physician. The Employer also argues that the Board's decision that the Claimant has a reduced earning capacity because of the July 31, 2003 work injury is not supported by substantial evidence. In response, the Claimant argues that though Dr. Raisis did not impose restrictions on the Claimant's work activities when he released him to return to work on April 5, 2004, Dr. Raisis admitted that the Claimant would likely have a recurrence of symptoms if he performed the functions of his former job. The Claimant further argues that the Board acted well within its discretion in ruling that the Claimant's earning capacity has been reduced as a result of the July 31, 2003 work injury, and that the Board's decision that the Claimant is entitled to partial disability is therefore supported by substantial evidence."The term `partial disability' is not defined in our Worker's Compensation Act. By implication, however, the term refers to that period of time during which an injured employee suffers a partial loss of wages as a result of his injury." Therefore, in order for the Claimant to be eligible for temporary partial disability, he must have a partial loss of wages that is due to his work injury. It is undisputed that the Claimant was earning $707.41 per week prior to the injury. Having accepted the only job offer he received after being terminated by the Employer, and after being cleared to return to work, the Claimant is now earning $10.00 per hour. Assuming a 40-hour work week, the Claimant has suffered a loss of wages equal to $307.41 per week. Factoring in the 66-2/3% compensation rate for partial disability determined by the Board, the Claimant has suffered a loss of earning capacity of $204.94 per week and is due compensation in that amount beginning on January 12, 2005 and ongoing. The Claimant presented evidence that this loss of earning capacity was a result of limitations placed on him because of the July 31, 2003 work injury. Dr. Raisis testified that although he did not place specific restrictions on the Claimant when he released him to work on April 5, 2004, he did indicate that the Claimant may have difficulty kneeling, squatting or pivoting on his left knee. Such difficulties would prevent the Claimant from performing some of the tasks required for most of the jobs on the list compiled by Hausch. Among those jobs are all of the jobs that would equal or surpass the Claimant's earning capacity prior to the work injury. The Court concludes that the Board relied on substantial evidence in order to determine that the Claimant has a reduced earning capacity and is entitled to partial disability compensation as a result of the July 31, 2003 work injury.
Globe Union, Inc. v. Baker, 310 A.2d 883, 887 (Del.Super. 1973).
CONCLUSION
For the foregoing reasons, the Court concludes that there is substantial evidence in the record to support the Board's ruling in this case and accepts the Board's factual determinations. The Court, therefore, will not disturb the Board's decision. Accordingly, the decision of the Industrial Accident Board is AFFIRMED.