Opinion
No. 52, 2007.
July 5, 2007.
Court Below: Superior Court of the State of Delaware in and for Kent County, C.A. No. 05A-12-001.
Before STEELE, Chief Justice , JACOBS, and RIDGELY, Justices.
ORDER
This 5th day of July 2007, upon consideration of the briefs of the parties and the record on appeal, it appears to the Court that:
(1) Appellant Lillian Walt appeals the Superior Court's decision affirming a limited award of total disability benefits by the Industrial Accident Board. Walt makes two related arguments on appeal. First, she contends that the Board erred because it did not apply the displaced worker doctrine. Second, Walt contends that the Superior Court improperly placed the burden of proving entitlement to compensation under the displaced worker doctrine on her and not her employer. We find no merit to Walt's arguments and affirm.
(2) At the time of the accident, Walt worked as a Certified Nursing Assistant for the State of Delaware at the Delaware Home and Hospital for the Chronically Ill. She held that position since October 1997. On July 3, 2004, as Walt ran down a hallway in response to an emergency, her wedding band got caught in a door jam, causing her to come to an abrupt stop. As a result, Walt suffered bruises on her face and lacerations on her finger. Her wedding band became imbedded in her finger and had to be cut off by a supervisor.
(3) Walt visited her family doctor, Dr. Aljuanidi, two days after the accident. Dr. Aljuanidi issued a one-week no-work order. After Dr. Aljuanidi lifted the no-work order, Walt returned to work under the condition that she use only one hand. On August 2, 2004, Walt had to use her injured hand to prevent a morbidly obese patient from falling. Her wrist swelled up and she also began suffering neck pain. Her neck pain increased to the point that a consultation with Dr. Rowe, an orthopedic surgeon, was required.
(4) Dr. Rowe initially treated Walt's neck pain with ibuprofen and physical therapy. Because the pain continued, Dr. Rowe referred Walt to Dr. Godfrey for pain management. Dr. Godfrey treated Walt with darvocet, myofacial stretching and an epidural. When this treatment also failed, Walt sought the advice of Dr. Ali Kalamchi, who concluded that a surgical fusion of the cervical spine was necessary. Walt underwent surgery on April 20, 2005, and her neck condition substantially improved. Dr. Kalamchi issued a no-work order after the surgery, which he lifted on August 18, 2005. He had concluded that she could return to light to medium duty work.
(5) On April 29, 2005, Walt filed a Petition to Determine Additional Compensation Due, seeking payment of surgical expenses and total disability benefits associated with the surgery. The State compensated Walt for her hand injuries, but claimed that Walt's neck injury was not related to the July 3, 2004 accident. The Board held a hearing on November 4, 2005 and concluded that Walt's cervical spine injury was the result of the July 3, 2004 accident and awarded her total disability benefits from the date of surgery until August 18, 2005 — the date her own doctor lifted the no-work order. On December 8, 2005, Walt filed a limited appeal from the Board's decision with the Superior Court arguing that the Board should have allowed her to receive total disability benefits beyond August 18, 2005.
(6) On appeal to the Superior Court, Walt claimed that the Board erred because it did not address the applicability of the displaced workers doctrine. On January 8, 2007, the Superior Court affirmed the Board's decision explaining that the Board was not required to perform a displaced worker analysis because Walt had waived the issue.
(7) When reviewing an appeal from the Board, the limited role of this Court and the Superior Court is to determine whether the Board's decision is supported by substantial evidence and is free from legal error. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. It is well-established that we do not sit as the trier of fact, rehear the case, reweigh the evidence, make credibility determinations, or substitute our own judgment for that of the Board. We review questions of law de novo.
Std. Distrib. v. Hall, 897 A.2d 155, 157 (Del. 2006) (citing General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
Saunders v. DaimlerChrysler, Corp., 894 A.2d 407 (Del. 2006) (TABLE) (citing Histed v. E.I. DuPont de Nemours Co., 621 A.2d 340, 342 (Del. 1983)).
Hall, 897 A.2d at 157 (citing Johnson, 213 A.2d at 66-67).
Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998).
(8) Walt first contends that she properly raised the displaced worker doctrine before the Board and, therefore, the Superior Court incorrectly found that she had waived the issue. Walt argues that she properly presented the issue for consideration because in her pre-trial memorandum to the Board she checked the blank line next to "Displaced Worker Status" and requested that her benefits continue. Although she may have informed the Board that she intended to proceed under such a theory, her failure to produce relevant evidence on the subject or even argue displaced worker status before the Board constitutes a waiver.
(9) Even if Walt had argued the issue, Walt failed to meet her burden, as the moving party, of showing that the displaced worker doctrine applied to her case. Walt contends that because she proved entitlement to total disability benefits, as demonstrated by the Board's award of total disability up to August 18, 2005, the burden shifted to the employer to prove that Walt was no longer entitled to receive total disability thereafter. We disagree. The cases that Walt relies on, Ham v. Chrysler Corp., Bigelow v. years and Huda v. Continental Can Co. all involved a petition to terminate benefits. In those cases, the burden properly rested upon the employer because it, and not the claimant, was the moving party. Here, Walt was the moving party: she filed the Petition to Determine Additional Compensation Due. As the moving party, Walt had the burden of proving entitlement to workers' compensation benefits.
231 A.2d 258, 262 (Del. 1967).
260 A.2d 906, 907 (Del. 1969).
265 A.2d 34, 35 (Del. 1970).
Strawbridge Clothier v. Campbell, 492 A.2d 853, 854 (Del. 1985) ("[T]he ultimate burden of proof is on the moving party. Where the employer files a Petition to Terminate or otherwise seeks to modify existing benefits, the employer is the moving party, and consequently bears the burden. . . . However, as in this case, where the claimant is the party who seeks action from the Board by filing a Petition for disability benefits, it is settled that the claimant bears the burden. . . .") (citations omitted).
(10) Whether a claimant is entitled to total disability as a displaced worker "requires a consideration and weighing of not only the medical and physical facts but also such factors as the employee's age, education, general background, occupational and general experience, emotional stability, the nature of the work performable under the physical impairment, and the availability of such work." Walt did not argue to the Board that she was in fact displaced. Her own treating physician testified that she was capable of light to medium duty as of August 18, 2005. Walt produced no evidence that she sought, but was unable to find, work conforming to her restrictions. Accordingly, even if Walt did not waive the argument that she was a displaced worker, the Board did not err in deciding this case.
Ham, 231 A.2d at 261.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.