Opinion
No. 236, 1999.
September 22, 1999.
Appeal from the Superior Court, New Castle County, CA 98A-02-027.
AFFIRMED
Unpublished Opinion is below.
LINDA S. WALDEN, Employee/Claimant Below-Appellant, v. GEORGIA-PACIFIC CORPORATION, Employer/Carrier Below-Appellee. No. 236, 1999. Supreme Court of Delaware. Submitted: July 30, 1999. Decided: September 22, 1999.
Court Below — Superior Court of the State of Delaware, in and for New Castle County C.A. No. 98A-02-027
Before HOLLAND, HARTNETT and BERGER, Justices
CAROLYN BERGER, Justice
ORDER
This 22nd day of September 1999, upon consideration of the appellant's opening brief and the appellee's motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The employee/claimant-appellant, Linda S. Walden ("Walden"), claims error in the Superior Court's affirmance of the decision of the Industrial Accident Board (the "Board") denying her petition for workers' compensation benefits. The employer/carrier-appellee, Georgia-Pacific Corporation ("Georgia-Pacific"), has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Walden's opening brief that the appeal is without merit. We agree and affirm.
Supr. Ct. R. 25(a).
(2) The Board denied Walden's Petition to Determine Additional Compensation Due on the ground that she did not meet her burden of showing either that she had suffered a recurrence of her total disability or that she was a displaced worker. The Board granted Georgia-Pacific's Petition for Termination of Benefits on the ground that it met its burden of showing Walden's total disability had ended by June 20, 1991, the date she returned to work following her industrial accident. On appeal, the Superior Court affirmed the decision of the Board, concluding there was substantial evidence to support the Board's findings and there was no legal error.
(3) Walden contends the Board's decision is not supported by substantial evidence and the Board committed legal error by: 1) terminating her total disability benefits retroactive to June 20, 1991; 2) determining that she had not suffered a "recurrence;" 3) permitting Georgia-Pacific's vocational expert to testify at the hearing; and 4) determining that she was not a "displaced worker." To the extent Walden has not argued other grounds to support her appeal that were previously raised, those grounds are deemed waived and will not be addressed by this Court.
Murphy v. State, Del. Supr., 632 A.2d 1150, 1152 (1993). On appeal to the Superior Court, Walden argued that the Board erred in not considering evidence of her Social Security disability award, her award of benefits from the Georgia-Pacific Hourly Workers' Pension Fund and a plea of guilty to tax evasion by Georgia-Pacific.
(4) Walden was employed by Georgia-Pacific as a security guard from March 1975 to February 1992. While at work on June 7, 1991, she fell off a step and sustained a left ankle sprain and pain in her left knee and lower back. On June 10, 1991, she fell a second time at work while walking on crutches. On June 11, 1991, Walden saw Dr. Kamali, the company doctor, who diagnosed her with a severe left ankle sprain. Her personal doctor, Dr. Bakst, released her to return to work in a modified duty position on June 20, 1991. She occupied that position full time from June 20, 1991 until February 21, 1992, when she was terminated because the position was eliminated.
(5) Walden obtained her GED in 1992. In that same year she began working at International Playtex in the packing department, but that employment ended after approximately one month. In January 1993 she began work as a part-time school crossing guard with New Castle County, but that job ended after several months. Walden did an internship for the Office of Probation and Parole in 1994, but never found permanent employment in that field. In each case, Walden contends she was unable to continue her employment because of her physical restrictions. In May 1997 she obtained an associate degree in criminal justice from Delaware Technical and Community College but has never been employed in that field. While in college, Walden took such courses as Introduction to Computers, Technical Writing, and Business Math. She has not applied for a job since March 1996.
(6) On September 5, 1991, Walden and Georgia-Pacific entered into an Agreement as to Compensation for temporary total disability benefits based on the June 7, 1991 industrial accident (the "First Agreement"). The First Agreement noted the probable length of disability to be "7-10 days." Pursuant to the First Agreement, Walden was paid total disability benefits for the period June 8, 1991 through June 19, 1991. On September 8, 1993 Walden and Georgia-Pacific entered into a second Agreement as to Compensation for temporary total disability benefits based on the June 7, 1991 industrial accident (the "Second Agreement"). The Second Agreement noted the probable length of disability to be "2 days." Pursuant to the Second Agreement, Walden was paid total disability benefits for October 22 and October 23, 1992. It appears that Walden signed a final receipt for th benefits she received pursuant to the Second Agreement. However, she did not sign a final receipt for the benefits she received pursuant to the First Agreement and refused to do so when requested by counsel for Georgia-Pacific in November 1997.
Prior to reaching agreement with Georgia-Pacific, Walden filed a petition with the Board in which she claimed benefits only for the period "6/7/91 to 6/18/91."
Walden also receives ongoing partial disability benefits and received lump sum awards for permanent impairments to her ankles, legs and back as a result of her 1991 industrial accident.
(7) In August, 1997, Walden filed a Motion for a Rule to Show Cause with the Board claiming she was entitled to additional total disability benefits from Georgia-Pacific pursuant to the First Agreement. The Board held a legal hearing on this issue on November 20, 1997. It noted Walden had not signed a final receipt for total disability benefits pursuant to the First Agreement, nor had Georgia-Pacific filed a Petition for Review requesting a termination of total disability benefits in light of Walden's failure to sign a final receipt. The Board advised Georgia-Pacific to file a Petition for Review, which would be heard simultaneously with Walden's Petition to Determine Additional Compensation Due. Both petitions were considered by the Board at an evidentiary hearing on February 10, 1998.
(8) This Court reviews factual findings of the Board to determine whether they are supported by substantial evidence and reviews de novo legal issues decided by the Board.
Keeler v. Metal Masters Foodservice Equipment Co., Inc., Del. Supr., 712 A.2d 1004, 1005 (1998) (citing Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., Del. Supr., 636 A.2d 892, 899 (1994)).
(9) Walden's first claim of error is that the Board improperly granted Georgia-Pacific's petition to terminate her benefits retroactively as of June 20, 1991. Walden claims the Board is prohibited from granting a retroactive termination where there is an Agreement as to Compensation in place, which the employer has never requested be modified. She contends that Georgia-Pacific was obligated to continue paying her total disability benefits under the First Agreement until either she consented to a termination of payments or the Board determined that her benefits should be terminated. Finally, Walden contends that, because she returned to a "gratuity situation" when she returned to work on June 20, 1991, Georgia-Pacific is precluded from terminating her total disability benefits as of that date.
(10) Walden's first claim of error is without merit. There was substantial evidence supporting the Board's finding that Walden's period of total disability ended as of June 20, 1991, the date she returned to work following her industrial accident. Underlying that express finding is the implicit finding, for which there is also substantial evidence, that the First Agreement was intended to cover a period of total disability of no more than 7-10 days, in accordance with Walden's petition for benefits. Once Walden had received those benefits, Georgia-Pacific had no further obligation to her pursuant to the First Agreement, absent a showing of fraud. There was no evidence of fraud presented at the hearing. Furthermore, Walden returned to work on June 20, 1991. Walden testified she believed the First Agreement was an "open" agreement entitling her to ongoing payments of total disability benefits. However, there was no evidence to support that assertion. The First Agreement was no different in form from the Second Agreement, for which she signed a final receipt. Even assuming Walden believed she was entitled to ongoing benefits pursuant to the First Agreement, her failure to understand the document is not a valid reason to set it aside.
See Haveg Indus., Inc. v. Humphrey, Del. Supr., 456 A.2d 1220, 1222 (1983).
Chrysler Corp. v. Alston, Del. Supr., No. 157, 1997, Walsh, J., 1997 WL 597120 (Sept. 22, 1997) (ORDER).
Id.
(11) Walden's reliance on Huffman v. C.C. Oliphant Son, Inc. is misplaced. In Huffman, the employer unilaterally stopped paying ongoing disability benefits pursuant to a Board-approved agreement without either a decision by the Board terminating benefits or the consent of the employee to the termination. However, the Huffman case is inapposite in a case such as this where there is substantial evidence the parties understood that benefits would be paid only for a limited period of time and no evidence that such payments were not made in full.
Del. Supr., 432 A.2d 1207 (1981).
(12) Walden also claims that Georgia-Pacific was obligated to continue paying her total disability benefits pursuant to the First Agreement because the position she returned to on June 20, 1991 was a "gratuitous situation" pursuant to M M Hunting Lodge v. DiMaio. While not expressly stated in its decision, the Board implicitly, and properly, found that the position Walden returned to was not the kind of "gratuitous situation" referred to in DiMaio. There was substantial evidence Walden returned to a full time, modified duty position. While there was evidence Walden's wages were reduced from their pre-accident level, there was no support for her contention that the job was a mere "gratuity" from which Georgia-Pacific derived no benefit.
Del. Super., C.A. No. 90A-JL-8, Bifferato, J., 1991 WL 89802 (May 10, 1991) (ORDER).
(13) Walden's second claim is that the Superior Court erroneously affirmed the Board's finding that she did not suffer a "recurrence." A "recurrence" is the "return of an impairment without the intervention of a new or independent accident." This claim is without merit. The Superior Court properly found there was substantial evidence to support the Board's determination that Walden did not suffer a "recurrence," and there was no error of law. Both Dr. Case and Dr. Noyes testified Walden could return to work full time in a sedentary capacity. Dr. Case testified Walden's condition did not change during the period he saw her. Dr. Noyes testified Walden suffered no significant increase in symptoms during the period he saw her. Dr. Rodgers testified Walden's objective examinations were essentially unchanged since August 1994. There was, thus, substantial evidence supporting the Board's conclusion that Walden's condition had not worsened since her industrial accident and, therefore, she did not experience the "return of an impairment." Walden further contends the Board erroneously failed to conclude she is disabled as a result of psychological problems stemming from the industrial accident. However, Walden's psychological expert, Dr. Romirowsky, testified Walden's current psychological condition was due primarily to the termination of her position at Georgia-Pacific, not her work-related injury. Furthermore, Dr. Romirowsky did not testify Walden is totally disabled. Thus, there was substantial evidence supporting this determination by the Board as well.
DiSabatino Sons, Inc. v. Facciolo, Del. Supr., 306 A.2d 716, 719 (1973).
(14) Walden next claims the Board improperly permitted Georgia-Pacific's vocational expert, Robert Pare ("Pare"), to testify at the hearing. She claims she suffered prejudice as a result of Georgia-Pacific's failure to identify Pare as a witness on the pre-trial memorandum and turn over his report and labor market survey to her at least 30 days prior to the hearing. Walden, finally, contends she suffered prejudice in not being permitted to fully cross examine Pare about the jobs he contended were available to her.
(15) Pare was not specifically identified by Georgia-Pacific on the pre-trial memorandum. However, the pre-trial memorandum indicated Georgia-Pacific would be calling as a witness a vocational expert from the company that employs Pare. In addition, Pare wrote Walden a letter of introduction and met with her in November 1997, a couple of months prior to the Board hearing, so she was familiar with him. Walden received a copy of Pare's labor market survey prior to the hearing. She questioned Dr. Noyes about it at his deposition on January 28, 1998, and questioned her own vocational expert, Maurice LaPlace, about it at his deposition on February 2, 1998. Both depositions were admitted into evidence at the hearing. Walden also questioned Dr. Rodgers about the jobs listed in the labor market survey at the hearing. The Board excluded the labor market survey itself, but apparently it was attached as an exhibit to the deposition of Dr. Case, which was admitted into evidence without objection. Under these circumstances, it was not an abuse of discretion for the Board to permit Pare to testify. Furthermore, there is no indication Walden suffered any prejudice as a result of the Board's consideration of the information contained in the labor market survey, particularly since Walden's own expert offered testimony that criticized it. While Walden did not complete her proposed cross examination of Pare, it appears that the additional questions she intended to ask would have done no more than point out alleged weaknesses in the labor market survey, evidence the Board already had before it. Thus, the rulings made by the Board concerning Pare's testimony were not erroneous as a matter of law and they were properly affirmed by the Superior Court.
(16) Walden's fourth claim is that the Board applied an erroneous legal standard and ignored the evidence in determining she was not a "displaced worker." Walden contends that Georgia-Pacific's refusal to re-hire her is dispositive of whether suitable employment is available within her restrictions. She also contends the Board's finding she had not made reasonable efforts to secure employment was unsupported by the evidence.
(17) The legal analysis necessary to establish "displaced worker" status is well-settled. Once an employer has sustained its burden of proving an employee is no longer totally disabled, the employee must show he or she is a "displaced worker" in order to continue to receive total disability benefits. A prima facie "displaced worker" is one who, while no completely incapacitated for work, is "so handicapped by a compensable injury that he will no longer be employed regularly in any well known branch of the competitive labor market and will require a specially-created job if he is to be steadily employed." "The employee's `physical impairment coupled with other factors such as the injured employee's mental capacity, education, training, or age' may constitute a prima facie showing that the employee is displaced." If the employee is unable to prove he or she i prima facie displaced, "displaced worker" status may be demonstrated by showing "reasonable efforts to secure suitable employment which have been unsuccessful because of the injury."
Torres v. Allen Family Foods, Del. Supr., 672 A.2d 26, 30 (1995).
Id., citing Ham v. Chrysler Corp., Del. Supr., 231 A.2d 258, 261 (1967).
Id., citing Franklin Fabricators v. Irwin, Del. Supr., 306 A.2d 734, 737 (1973).
Id., citing Franklin Fabricators, 306 A.2d at 737.
(18) There is substantial evidence supporting the Board's determination that Walden was not a "displaced worker." Dr. Noyes and Dr. Case testified Walden could return to work in a sedentary capacity. While Dr. Rodgers testified Walden was totally disabled, he, too, testified she was capable of sedentary employment. There was evidence at the hearing of Walden's educational background, including her GED and her degree in criminal justice from Delaware Technical and Community College. Pare testified Walden had a number of transferable skills and there were a number of jobs available to her within her restrictions. The Board properly relied on the testimony of Drs. Noyes and Case, the evidence concerning Walden's educational background and Pare's testimony about Walden's employability in concluding she was not "displaced." Georgia-Pacific's decision not to re-hire Walden, while evidence to be considered by the Board, is not dispositive of whether she is displaced. Finally, in reviewing the evidence of Walden's job search, the Board was entitled to rely upon the testimony of Pare that there were a number of jobs available to Walden within her restrictions and vocational abilities but that she had not applied for such jobs and that the manner in which she had conducted her job search indicated a lack of good faith.
Id.
(19) It is manifest on the face of Walden's opening brief that this appeal is without merit because the issues presented on appeal are controlled by settled Delaware law and, to the extent that judicial discretion is implicated, clearly there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rule 25(a), Georgia-Pacific's motion to affirm is GRANTED. The judgment of the Superior Court is hereby AFFIRMED.