Opinion
C.A. No. 01A-11-006-FSS
Submitted: March 14, 2002
Decided: March 27, 2002
Upon Appeal from the Industrial Accident Board — AFFIRMED
James J. Hanley, Deputy Attorney General, Wilmington, Delaware, Deputy Attorney General for Plaintiff.
H. Garrett Baker, Esquire, Wilmington, Delaware, Attorney for Defendants.
FINAL ORDER
This is an appeal by the Workers' Compensation Fund, also known as the Second Injury Fund, from a decision by the Industrial Accident Board allowing a "displaced" or "odd lot" worker's employer to obtain reimbursement from the Fund. At this point, the case is deceptively simple. Using its discretion, the Board allowed reimbursement based on its findings of fact. The Fund does not challenge the Board's fact-finding. Nor does it question the Board's exercise of discretion. The Fund simply argues that allowing reimbursement was incorrect as a matter of law.
For future reference, the caption on appeal should be the same as the original caption. Under the "mirror image" rule, the original claimant should be a nominal party to the appeal. Dzedzej v. Prunsinski, 259 A.2d 384 (Del.Super., 1969); McDowell v. Simpson, 6 Del. 467 (Del.Super. 1857).
In its motion for reargument before the Board, the Fund made broader claims, embracing abuse of discretion. Those claims now are abandoned.
The case now is deceptively simple not only because it only presents a matter of law on appeal. As it happens, the court already has decided the question of law in this case, twice. At this point, the Fund merely is rearguing its view of the Board's total lack of discretion in second injury fund cases involving displaced workers. Presumably, the parties expect the court to stand by its earlier rulings. Accordingly, this court will not expound on its earlier opinions. For now, the court will recapitulate its earlier holdings briefly and not delay the issue's final resolution.
In summary, when the case was presented to the Board initially, the Board concluded as a matter of law that the employer of an odd-lot or prima facie displaced worker was not entitled to tap the Fund. The Board's basic reasoning was that a displaced worker is not totally disabled physically. The displaced worker is disabled, at least in part, by economic factors. According to the Board's initial holding, a second employer's reimbursement from the Fund turns on permanent physical injuries.
To put the issue in formal terms, 19 Del. C. § 2327 allows a second employer to pay reduced benefits to an employee who has previously sustained a permanent injury if that employee is injured while working for the second employer. The Fund, of course, makes up the difference. Meanwhile, § 2326, which § 2327 refers to and which defines "physical disability," does not refer to economic factors. Accordingly, the Board initially reasoned that a displaced worker can not fall under the ambit of § 2326. And that means, in turn, that a displaced worker's second employer is not entitled to relief under § 2327.
The court reversed the Board and remanded the case. On remand the first time, the Board again refused to exercise its discretion and the court, again, reversed the Board. After the third go-round, the Board finally looked at the cause of the worker's disability and concluded that his physical condition made tapping the Fund appropriate. So now, the Fund has appealed. While the other side has prevailed, the legal issue has remained the same.
In its prior decisions the court explained that the Board's initial view was too narrow. Following Spence v. University of Delaware the court held that a second employer is entitled to look to the Fund when a previous permanent injury and a subsequent permanent injury result in total disability. In this case, as opposed to the authorities on which the Board and the Fund initially relied and on which the Fund continues to rely, the displaced worker indisputably had sustained two, physical injuries and thanks to the displaced worker doctrine, the Board had concluded that his permanent injuries, combined with economic factors, have resulted in the worker's total disability. The court decided that consistent with the Worker's Compensation Act's language, the spirit of the Act and Spence, the Board was obliged to exercise its discretion and decide the extent to which the worker's permanent injuries caused the worker's total disability. In that way, the Board would decide the extent to which the Fund would be accountable for the worker's second injury.
311 A.2d 867 (Del.Supr. 1973).
The court flatly rejects the Fund's exaggerated mischaracterization of the scope of the court's decisions. Following Spence, the court concluded that the Board has a "broad range of discretion" to determine "if and when there is `total disability.'" Along the same line, the court recognizes that § 2326's ambit extends beyond the "catalogue of specifics in § 2326." Nevertheless, the court nowhere "grants the Board an apparently unlimited discretion in determining the existence of total disability within the scope of § 2326."
As alluded to above, after refusing to exercise its discretion in the first, two hearings, the Board now has considered and decided the extent to which the second employer, Transport Services, Inc., is entitled to tap the Fund. As also presented above, the Fund continues to assert its argument that the Board lacked discretion, as a matter of law, to award anything.
In its first decisions, the Board did not actually consider the permanent injuries and economic factors in a relative sense. In other words, the Board found against the second employer without exercising any discretion. At its third hearing the Board finally "weighed the vocational factors against the physical injury and concluded that it was the injury that ultimately disabled [the worker] and not the economic factors." In the process, the Board finally exercised its lawful discretion. And to use the Fund's words from its latest brief: "The issues in this appeal are legal issues." In short, this is not an "abuse of discretion" appeal.
The Board's final findings may misstate the standard, ever so slightly, in the sense that the worker's total disability obviously was a product of the combination of physical and economic factors. But the Board's slight misstep is inconsequential, and the court now reemphasizes the very narrow scope of the Fund's appeal. The heart of the dispute remains the Fund's insistence that the Board cannot legally order the Fund to pay benefits to a displaced worker under any factual circumstances. The court continues to reject that argument.
For the reasons set out in the court's June 30, 1999, November 30, 2000 orders, which are recapitulated above, the Industrial Accident Board's June 14, 2001 decision on second remand and the Board's November 2, 2001 order denying reargument are AFFIRMED.
IT IS SO ORDERED.