Opinion
C.A. No. 03A-04-005 HDR.
Submitted: January 29, 2004.
Decided: April 29, 2004.
Upon Claimant's Appeal from a Decision of the Industrial Accident Board AFFIRMED.
Walt F. Schmittinger, Esq., Schmittinger Rodriguez, Dover, Delaware for Claimant-Below/Appellant.
John J. Klusman, Jr., Esq., Tybout, Redfearn Pell, Wilmington, Delaware for Employer-Below/Appellee.
OPINION
This is an appeal by Claimant-Below, Appellant, Anita Carr (" Claimant") from a decision of the Industrial Accident Board (" Board"), which granted the employer's Petition to Terminate temporary total disability benefits. The Board found Claimant to no longer be a prima facie displaced worker. It further found her to be eligible only for temporary partial disability benefits. Because the decision of the Board is supported by substantial evidence and is free of legal error, it must be affirmed.
I. BACKGROUND
Claimant, was an employee at the State of Delaware Stockley Center (" Employer") working as an attendant/care giver. On August 27, 1996, Claimant's back was injured while assisting a client who fell while boarding a bus. Claimant has undergone several surgeries for this injury. As a result of the industrial accident, the parties entered into an Agreement as to Compensation acknowledging that the Claimant was totally disabled and the Employer pay temporary total disability benefits of $215.97 per week. Claimant's diagnosis is "Failed Back Syndrome." Her symptoms increase from time to time.
On February 2, 2001, the Employer filed a Petition to Terminate the Claimant's temporary total disability benefits. The treating physician, Dr. Spieker, who examined Claimant on behalf of the Employer, opined that Claimant could work a four to six hour day with "two days on, one day off, two days on, and then the weekend off." Additionally, the Claimant was restricted to lifting only ten to fifteen pounds if not using a cane and half that amount if using a cane. At that time, Dr. Spieker in reviewing a labor market survey approved three jobs for the Claimant who has a high school diploma and has taken several computer courses. Dr. Spieker specifically rejected any jobs where Claimant would have to do any bending over, kneeling, stooping down or crawling. The Board, in reviewing Claimant's case, granted the Petition to Terminate, awarding her temporary partial disability benefits at her temporary total disability rate. This decision was appealed to the Superior Court.
On May 15, 2002, this Court recognized that neither the Employer nor the Claimant could find a job within the capabilities outlined by the physicians. The Court held that the Board erred in shifting the burden of proof to the Claimant when there was not enough evidence to support the fact that the Claimant was not a displaced worker. Thus, the Court reversed and remanded the decision of the Industrial Accident Board.
On September 25, 2002, the Employer again filed a Petition to Terminate based on subsequent examinations by Dr. Spieker in which he updated the Claimant's ability to return to work stating that the Claimant was capable of working four hours a day, five days a week. Dr. Spieker opined that although the Claimant continues to have Failed Back Syndrome, she is capable of working in a part-time sedentary to light duty position. The restrictions of the job should be no more than those of daily living. It was noted that the Claimant had looked into a substitute teaching position and that Dr. Spieker agreed that would be appropriate. A hearing on the merits was held on March 14, 2003. Claimant did not appear for the hearing and offered no medical testimony or vocational testimony to rebut any evidence provided by the Employer. The Board found that there were job opportunities available within the new restrictions and granted the Petition to Terminate, awarding the Claimant temporary partial benefits at $99.57 per week.
II. Party Contentions
The Claimant contends that Dr. Spieker did not change his opinion of her ability to work or her physical condition in general. Dr. Spieker has said that she is stable in her condition, diagnosis and work restrictions. The Board's only evidence of any change is that the doctor indicated she could work five days a week up to four hours a day as opposed to four to six hours a day with a schedule of two days on, one day off, then two days off. The Claimant argues that in 2001 she was classified as a totally disabled prima facie displaced worker that would require a specially created job for steady employment and that nothing related to her health has changed.
The Employer argues that just because the Claimant has been classified as a prima facie displaced worker does not mean that she will always be classified as such. The Employer has the burden, upon petition, to review this status and prove that either physical conditions or the labor market has changed so that the displaced worker can now be accommodated. The Employer maintains that if the availability of regular employment within the employee's capabilities can be shown then the employer will be successful in its Petition to Terminate. The Employer contends that the following changes have occurred with regard to the Claimant's condition: First, Dr. Spieker changed his restrictions for Claimant allowing her to work five days a week for four hours as opposed to the two days on, one day off, two days on schedule. These new restrictions broaden the work available for the Claimant as now six of the eight jobs in the labor market survey are approved by Dr. Spieker. Previously in a labor market survey of ten potentially acceptable jobs, eight were found unacceptable by Dr. Spieker and the remaining two were found unacceptable by the Board. Second, Claimant was not currently using a cane as she had before. Third, Claimant failed to appear at the hearing on this matter and give her own testimony regarding any attempts by her to secure employment.
III. DISCUSSION A. Standard of Review
In reviewing a decision of the Industrial Accident Board, this Court's function is to determine whether the Board's decision is supported by substantial evidence. "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It is not the function of this Court to weigh the evidence, determine credibility or make its own findings of fact. This Court's sole appellate purpose is to determine if the evidence is legally adequate to support the Board's factual findings and that the conclusions of law are free from legal error.
Kidd v. Community Systems, Inc., 1995 WL 862129, at *2 (Del.Super.Ct. 1995).
Id.
Id.
American Original Corp. v. Bailey, 1992 WL 179405, at *2 (Del.Super.Ct. 1992).
B. Analysis — The Burden of Proof
The outcome of this case turns on the burden of proof. There are two types of burdens in deciding this case. First, the burden of production which is the burden to produce sufficient evidence to convince the court that a legitimate factual issue exists. This burden shifts between parties during the hearing or litigation. Whether the burden of production has been satisfied is a matter of law. Second, is the burden of persuasion which comes into play after all the evidence has been received and is the burden of convincing the court of the issue. This burden does not shift between the parties.In an action by an employer to terminate an employee's total disability benefits, the employer has the initial burden of production to prove that the employee is no longer incapacitated for the purpose of working. If the employer satisfies that burden then the burden shifts to the employee who must then show she is a displaced worker. A displaced worker is a worker who, while not completely incapacitated for work is so handicapped by a compensable injury that she no longer will be employed regularly in any well known branch of the competitive labor market and requires a specially-created job in order to be steadily employed. In order to be a prima facie displaced worker the evidence must compel a finding that the employee is a displaced worker. An employee is prima facie displaced if she can show that 1) she is an unskilled worker, unable to perform any task other than general labor; and 2) her inability to perform duties of a general laborer is casually related to the accident at issue. If the evidence of degree of physical impairment coupled with other specific factors, such as mental capacity, education, training or age, does not obviously place the employee in the category of a prima facie displaced worker then the primary burden is on the employee to show that she has made reasonable efforts to secure suitable employment which has been unsuccessful due to the injury.
Torres v. Allen Family Foods, 672 A.2d 26, 30 (Del. 1995) citing Governor Bacon Health Center v. Noll, 315 A.2d 601, 603 (Del.Super.Ct. 1974).
Id.
Kidd, 1995 WL 862129, at *2, citing Ham v. Chrysler Corp., 231 A.2d 258, 261 (Del. 1967).
Howland, 1986 WL 15461, at *3.
Elswick v. B.F. Rich Company, 1998 WL 960743, at *4 (Del.Super.Ct. 1998) aff'd, 734 A.2d 158 (Del. 1999) citing Hensley v. Arctic Roofing, 369 A.2d 678, 679 (Del.Super.Ct. 1976).
Howland, 1986 WL 15461, at *5; Torres, 672 A.2d at 30.
This Court has recognized four bases for modification of a disability benefits award. These are that the incapacity has 1) increased, 2) diminished, 3) terminated, or 4) recurred. Any claim of increase or decrease in the disability must be supported by comparison proof. Under Delaware law, a worker can be totally disabled economically, although only partially disabled physically. It is this total economic disability that is used in the displaced worker analysis.
Brokenbrough v. Chrysler Corp., 460 A.2d 551, 552 (Del.Super.Ct. 1983).
Id.
Id.
Kidd, 1995 WL 862129, at *2.
, Id.
The analysis here starts with the evidence on whether Claimant is a prima facie displaced worker. The Claimant has a high school education, supplemented with several computer courses. She is currently forty-three years old. The Board previously found when this issue was examined in May, 2002 that the Claimant is of at least average intelligence, is articulate and poised and has no problem understanding and responding to questions. Dr. Spieker has consistently maintained that Claimant should avoid repetitive activities such as kneeling, crawling, squatting, bending and climbing. If the Claimant is not using a cane she can lift ten to fifteen pounds but only half that amount if she is using a cane. She can work part-time, five days a week for four hours a day. This change in part-time restrictions is a change in Claimant's condition. Previously she could work up to six hours a day but only for two days at a time at a maximum of four days per week. The new part-time restriction is actually four hours or less employment per week than previously recommended but it does allow for more days work during the week. She is currently unemployed, although she has considered and applied for a part-time substitute teaching position. Based upon a labor market survey, the Board found jobs for which the Claimant is eligible. Dr. Spieker expressly found that six jobs would be within the Claimant's restrictions. The Employer at this point has met its burden and thus, the Claimant no longer qualifies as a prima facie displaced worker.
Once the Claimant is determined not to be a prima facie displaced worker the burden of proof shifts to the Claimant to prove that she is unemployable due to her injury. The determination of whether a Claimant has pursued a reasonable job search is a factual determination. Factors to be considered are diligence, good faith efforts, seeking suitable employment, and the vicinity in which the employment is sought. If the employer testifies as to a labor market survey for jobs that are not within a reasonable commute from where the Claimant resides then the Claimant is still a displaced worker.
American Original Corp., 1992 WL 179405, at * 4.
Id.
In this case, Claimant failed to appear for the hearing and presented no evidence of any attempt to locate employment other than possibly applying for a part-time substitute teaching position. Thus Claimant did not satisfy her burden of proof she is no longer classified as a displaced worker who is totally disabled.
Next, the analysis turns to whether Claimant is partially disabled. Clearly, Claimant's back injury still exists. She is restricted to sedentary and light duty work and she is not able to work full time. The Employer bears the burden of proof to show that she is not partially disabled. The Workmen's Compensation Act does not define partial disability. Partial disability refers to the period of time that an injured employee suffers a partial loss of wages as a result of that injury. The same factors that are used to determine total disability are also used to determine a partial disability. The statute must be construed so that an employee seeking compensation for a loss of wages due to an injury is not penalized because he is not totally disabled. Although the recovery will be less for a partial disability, the existence and duration of the disability are to be considered under the same tests as for total disability.
Murphy Steel, Inc. v. Brady, 1991 WL 89771, at *4 (Del.Super.Ct. 1991), aff'd, 608 A.2d 729 (Del. 1991).
Globe Union, Inc. v. Baker, 310 A.2d 883, 887 (Del.Super.Ct. 1973).
Id.
Id.
Id.
Id.
A Vocation Rehabilitation Specialist testified at the Hearing that there is sufficient evidence that entry level jobs are available for the Claimant paying $8.73 per hour. This wage amount was based on the 1996 minimum wage amount, the 2003 minimum wage amount and the consumer price index. The Specialist stated that since the Claimant is capable of returning to the workforce earning $8.73 an hour, totaling $174.60 per week and her pre-injury wage was $323.95 per week, Ms. Carr will suffer a partial disability of $149.35 per week, therefore she is partially disabled and eligible for partial disability benefits. After calculations, made in accordance with 19 Del. C. § 3313 (m), it was determined that Claimant is entitled to temporary partial disability benefits of $99.57 per week.
This is the year the injury occurred.
CONCLUSION
In conclusion, there is substantial evidence to support the Board's decision that the Claimant's status has changed from temporary total disability to temporary partial disability. The Board heard evidence of an increased number of jobs suitable for the Claimant due to different work restrictions and no evidence from the Claimant to show that she cannot be employed due to her disability. Because, the Board's decision to terminate temporary total disability benefits in favor of temporary partial disability benefits supported by substantial evidence and is free of legal error, it is AFFIRMED.