Opinion
C.A. No. 06A-06-016-JRS.
Submitted: February 1, 2007.
Decided: May 31, 2007.
Upon Appeal from the Industrial Accident Board.
AFFIRMED.ORDER
This 31st day of May 2007, upon consideration of the appeal of Timothy Merritt from the decision of the Industrial Accident Board (the "Board') granting United Parcel Service's Petition to Terminate Benefits, it appears to the Court that:
Docket Item ("D.I.") 3, Industrial Accident Board ("Board") Decision, at 21.
1. On May 16, 2005, Timothy Merritt ("Mr. Merritt") herniated a disk in his back while lifting boxes onto a conveyor belt during his work for United Parcel Service ("Appellee" or "UPS"). He informed his supervisor and sought medical treatment the following day. He subsequently saw Dr. Bruce Rudin, who recommended epidural injections and physical therapy.
2. From May to September 13, 2005, Mr. Merritt continued to work at UPS with physical restrictions. He stopped working in September because he suffered from severe pain in his lower back and left hip, and experienced occasional numbness in his feet and left thigh. He went to Dr. Kalamchi to treat his symptoms.
3. On October 26, 2005, Dr. Kalamchi performed surgery to repair Mr. Merritt's disc herniation. After the surgery, Mr. Merritt suffered from less pain and numbness. Dr. Kalamchi prescribed complete bed rest for one month, followed by physical therapy and core training . In December 2005, however, Mr. Merritt testified that one of his discs "blew out" into a nerve while he was grocery shopping. He also testified that he lost bowel and bladder control.
4. On January 9, 2006, UPS filed its Petition to Terminate Benefits claiming that Mr. Merritt could return to work in a limited capacity. The parties informed the Board that there was a prior agreement establishing total disability compensation of $285.33 per week based on a weekly salary of $428.00 per week.
Id. at 2. The Board noted that the agreement could not be found in the IAB file and directed the parties to file a copy with the Department of Labor. Id. at 2 n. 1.
5. On January 11, 2006, Dr. Kalamchi performed a second surgery during which he removed Mr. Merritt's herniated disc and fused the spine. On January 26, 2006, Dr. Kalamchi wrote a note indicating that Mr. Merritt "was to take it easy and avoid heavy lifting."
Id. at 4.
6. On March 2, 2006, Dr. Kalamchi examined Mr. Merritt and noted improvement in his pain levels and ability to walk. He prescribed therapy and weight reduction, and asked Mr. Merritt to return for a follow up visit in six weeks on April 24, 2006.
7. On March 8, 2006, Mr. Merritt was examined by neurologist, Dr. Lanny Edelsohn, at UPS' request. He told Dr. Edelsohn that he experienced constant pain in his lower back, some numbness of the left anterior thigh, and somewhat less numbness in his toes on both feet. He usually experienced pain when he changed positions. After the examination, Dr. Edelsohn opined that Mr. Merritt could return to work in a position that allowed him to be sedentary with restrictions on his physical activities. Dr. Edelsohn further opined that Mr. Merritt would reach maximum medical improvement sometime in June 2006, but that he could not return to his job at UPS.
8. On March 22, 2006, Dr. Kalamchi created a disability slip that retroactively placed Mr. Merritt on total disability as of January 11, 2006 until April 24, 2006.
9. On March 29, 2006, Mr. Merritt met with Dr. Steven Grossinger at his attorney's recommendation. Dr. Grossinger diagnosed Mr. Merritt with lumbar radiculopathy and prescribed a Duragesic (or Fentanyl) patch that provided a constant level of pain medication. Dr. Grossinger opined that Mr. Merritt could not return to work for UPS because there were abnormalities in his neurological examination and diagnostic testing, and he continued to experience pain. Dr. Grossinger issued Mr. Merritt a disability slip that stated he was on total disability until June 28, 2006. Mr. Merritt was scheduled to see Dr. Grossinger again on May 8, 2006, four days after the Board hearing on UPS' petition commenced.
10. On April 4, 2006, counsel for UPS sent a letter via facsimile to Mr. John F. Kirk, III at the Department of Labor ("the Letter") stating:
Please be advised that the Employer/Carrier:
1. Admits a transient period of recurrence from January 11, 2006 (the date of the second surgery) to March 8, 2006 (the date of the defense medical examination);
2. Admits temporary partial disability benefits from March 8, 2006 to the present and on-going at a rate of $75 per week; and
3. It should be noted that the Employer cannot accommodate sedentary or light duty restrictions and it is therefore appropriate that the claimant seek alternative work.
D.I. 9, Mr. Merritt's Opening Br., Ex. E.
D.I. 9, Mr. Merritt's Opening Br., Ex. E.
11. On June 2, 2006, the Board granted UPS' petition to terminate Mr. Merritt's total disability benefits as of April 24, 2006, and awarded him temporary partial disability payments of $141.95 per week for a period of six weeks beginning April 24, 2006. In its decision, the Board terminated Mr. Merritt's total disability because he could return to work in a sedentary capacity beginning with part time work and gradually increasing his hours to full time over a six week period. The Board based its decision on three factors: (1) Dr. Edelsohn's opinion that Mr. Merritt could do sedentary work; (2) Dr. Kalamchi's January 26, 2006 and March 2, 2006 examination notes indicating that Mr. Merritt suffered from less pain and numbness and could walk without assistance and a limp; and (3) Mr. Merritt's testimony that he suffered from less pain since the second surgery despite some minimal residual symptoms. The Board acc epted Dr. Ede lsohn's testimony over that of Dr. Grossinger because it "better reflects [Mr. Merritt's] current condition and ongoing recovery from surgery."
D.I. 3, at 16.
12. Next, the Board concluded that the effective date of the termination of total disability benefits was April 24, 2006, because Mr. Merritt was entitled to rely upon Dr. Kalamchi's total disability slip dated March 22, 2006 covering the period of January 11, 2006 until April 24, 2006. "In fact, the Employer admitted this in its April 4 letter to the Department o f Labor." The Board rejected Mr. Merritt's reliance upon Dr. Grossinger's disability slip because Dr. Grossinger was not one of his treating physicians. Based on Dr. Edelsohn's opinion that Mr. Merritt could return to full time work with restrictions gradually over a six week period, the Board concluded that Mr. Merritt was partially disabled for that period and was entitled to $141.95 per week for six weeks. The Board relied upon the testimony of Ms. Jocelyn C. Langrehr, a vocational and rehabilitation specialist, to reach this number. Ms. Langrehr prepared a labor market survey and testified to the existence of six jobs that were suitable for Mr. Merritt based on his physical limitations. The average weekly wage for these positions was $430.12 full time and $215.08 part time. Mr. Merritt's earnings at UPS were $428 per week and he therefore suffered a loss of $212.12 per week, or $141.95 per week for partial disability benefits.
Id. at 17.
Id.
13. The Board referred to the Letter in its summary of the procedural posture of the petition:
On January 9, 2006, UPS filed a Petition to Terminate Benefits, alleging that Claimant was capable of returning to work in some capacity. In an April 4, 2006 letter to the Board, the Employer admitted to a period of total disability from January 11, 2006 (date of second surgery) through March 8, 2006 (date of defense medical examination). The Employer also admitted to an obligation to pay temporary partial disability from March 8, 2006 `to the present and on-going at a rate of $75 per week.'
Id. at 2 (quoting ltr. From Nancy Chrissinger Cobb to John F. Kirk, III, April 4, 2006).
Id. at 2 (quoting ltr. From Nancy Chrissinger Cobb to John F. Kirk, III, April 4, 2006).
14. On appeal to this Court, Mr. Merritt does not challenge "the Board's determination that substantial evidence existed to terminate [his] total disability benefits. Rather, [Mr. Merritt is] challenging the process by which the Board reached this determination." Mr. Merritt argues that the Board committed an abuse of discretion when it (1) disregarded UPS' pretrial admission of liability in the Letter that it owed Mr. Merritt "partial disability benefits from March 8, 2006 to the present and on-going at a rate of $75 per week[;]" and (2) made a prospective determination as to an issue not before it when it found that Mr. Merritt could return to work in a limited capacity six weeks after the hearing.
D.I. 11, Mr. Merritt's Reply Br., at 7.
Id.
15. Mr. Merritt contends that Superior Court Civil Rule 36 ("Rule 36") applies to IAB hearings, that the Letter is an admission under Rule 36, that he relied upon the letter in formulating his trial strategy, and that "the Board's failure to give conclusive, judicial effect to UPS' admission of liability in its April 4, 2006 letter amending its pretrial memorandum constitutes an abuse of discretion and reversible legal error." Mr. Merritt also argues that IAB Rule of Procedure 9(B) is inapplicable to the issue of pretrial admissions because it addresses the limited issue of pre-trial procedure used to establish the hearing date, "but legal issues [such as pretrial admissions] are not discussed and no orders result." He urges the Court not to adopt UPS' characterization of the Letter as a settlement offer because UPS did not treat the letter as a settlement offer. Instead of handing the "settlement offer" to the Board in a sealed envelope to be opened by the Board after the hearing for determination of attorney's fees — a procedure prescribed by 19 Del C. § 2320 — UPS sent the "settlement offer" to the Board prior to the hearing and referred to it in its opening statement at the hearing.
D.I. 9, at 9.
D.I. 11, at 6.
16. Regarding the Board's prospective determination of his physical condition, Mr. Merritt argues that "[w]hile it was within the Board's discretion to accept Dr. Edelsohn's testimony as to [Mr. Merritt's] physical condition at the time of the hearing, it was an abuse of discretion and legal error to accept testimony that predicted [Mr. Merritt's] physical condition in six weeks." By disregarding UPS' pretrial admission of liability in the letter and deciding an issue not before it, Mr. Merritt maintains that the Board denied him a fair hearing and due process of law as guaranteed by the Delaware and United States Constitutions.
D.I. 9, at 14.
17. UPS responds that the Letter is not an admission under Rule 36 and the Board's decision is otherwise based on substantial evidence. First, Rule 36 does not apply to administrative hearings, and IAB Rule 9(B) is irrelevant as there was no order or agreement that was violated between the parties. Second, even if Rule 36 applied to administrative hearings, the Letter is not an admission because Mr. Merritt did not propound a proper request for the admission. Without Mr. Merritt's request, "it cannot be said that [he] relied on such an admiss ion in formulating tri al strategy." UPS maintains that the Letter functioned as a settlement offer that the Board was not obligated to consider. Therefore, the Board did not deny Mr. Merritt his right to a fair hearing and due process of law.
D.I. 10, Appellee's Answering Br., at 9.
18. This Court has repeatedly emphasized the limited extent of its appellate review of the Board's decisions. The Court's review is confined to ensuring that the Board made no errors of law and determining whether there is "substantial evidence" to support the Board's factual findings. Questions of law that a rise from the B oard's decision are subject to de novo review which requires the Court to determine whether the Board erred in formulating or applying legal precepts. Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It is "more than a scintilla but less than a preponderance of the evidence." The "substantial evidence" standard of review contemplates a significant degree of deference to the Board's factual conclusions and its application of those conclusions to the appropriate legal standards. In its review, "the Court will consider the record in the light most favorable to the prevailing party below." A. The Board Did Not Commit Reversible Legal Error In Its Treatment Of The Letter.
Canyon Const. v. Williams, 2003 WL 1387137, at *1 (Del.Super.Ct. Mar. 5, 2003); Hall v. Rollins Leasing, 1996 WL 659476, at *2-3 (Del.Super.Ct. Oct. 4, 1996).
See Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998); Hudson v. State Farm Mut. Ins. Co., 569 A.2d 1168, 1170 (Del. 1990).
Breeding v. Contractors-One, Inc., 549 A.2d 1102, 1104 (Del. 1998).
Id.
Hall, 1996 WL 659476, at *2 (citing DEL. CODE ANN. tit. 29, § 10142(d)).
General Motors Corp. v. Guy, 1991 WL 190491, at *3 (Del.Super.Ct. Aug. 16, 1991).
19. Before the Court can address the issues raised in the parties' briefs, the Court must first determine whether Mr. Merritt preserved his argument for appeal. The reviewing court may not consider issues and arguments that were not raised before an administrative agency. This principle, known as the waiver rule, allows agencies "to apply their own specialized expertise and to correct their own errors, and also discourages litigants before an agency from reserving an issue for appeal[.]" The United States Supreme Court has held that constitutional questions are not subject to the waiver rule and the reviewing court may consider those issues on appeal despite the party's failure to raise them before the agency.
Down Under, Ltd. v. Delaware Alcoholic Beverage Control Comm'n, 576 A.2d 675, 677 (Del.Super.Ct. 1989).
Tenneco Oil Co. v. Dept. of Energy, 475 F. Supp 299, 307 (D. Del. 1979).
Califano v. Sanders, 430 U.S. 99, 109 (1977).
20. Mr. Merritt's argument that the Board improperly disregarded the Letter was not preserved for appeal. The Letter was not admitted as an exhibit at any point during the hearing. Mr. Merritt's counsel remained silent when UPS' counsel expressly referred to the Letter in her opening statement and characterized the Letter as a pre-trial amendment to UPS' petition to terminate benefits. At no point during the hearing did Mr. Merritt ask the Board to give "conclusive, judicial effect" to the Letter. Accordingly, his arguments with respect to the Letter must be deemed to have been waived unless his arguments fall within the exception to the waiver rule that allows constitutional questions to proceed even if not raised before the administrative agency. In this regard, Mr. Merritt claims that he did not receive a fair hearing because the Board's finding was not consistent with the Letter. This is a challenge to the Board's factual conclusion that Mr. Merritt was no longer totally disabled; it does not implicate procedural due process. Accordingly, the waiver rule applies. Even if the Court were to conclude that the waiver rule is not implicated here, however, the Court would nevertheless find that the Board's treatment of the Letter was entirely appropriate.
1. The Letter Is Not An Admission Pursuant to Rule 36 Because Mr. Merritt Did Not Request An Admission From UPS.
21. Regardless of whether Rule 36 applies to administrative hearings, the Letter is not an admission under Rule 36. The plain language of Rule 36 makes clear that it is a rule of procedure requiring both the requesting party and the responding party to follow a specific process before a matter is deemed admitted. Rule 36(b) deems a matter "conclusively established" only after the parties follow the procedure prescribed in Rule 36(a) and the responding party's conduct in response to the request for admission does not effectively object or deny the request. An admission under Rule 36 is a judicial admission because once it is conclusively established through the deliberate and careful wording by counsel, a party may not deny it at trial. In contrast, an evidential admission, although made prior to trial, is not the result of a formal procedure or advice of counsel and is not conclusively established. The purpose of Rule 36 is "to facilitate the proof at trial by eliminating facts and issues over which there is little dispute, but which are often difficult and expensive to prove. Requests for admission should not be used to establish the ultimate facts in issue."
SUPER. CT . CIV. R. 36(a) ("Rule 36(a)"). See also SUPER. CT . CIV. R. 26(b) (defining the scope of discovery in civil matters).
See SUPER. CT. CIV. R. 36(b) ("Any matter admitted under this rule is conclusively established unless the Court on motion permits withdrawal or amendment of the admission.") ("Rule 36(b)").
8A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, RICHARD L. MARCUS, FEDERAL PRACTICE PROCEDURE § 2264 (2d ed. 1994).
Id. See also Airco Indus. Gases, Inc. v. Teamsters Health and Welfare Pension Fund of Phila. and Vicinity, 850 F.2d 1028, 1036 (3rd Cir. 1988) (quoting McSparran v. Hanigan, 225 F. Supp. 628, 636-37 (E.D.Pa. 1963), aff'd, 356 F.2d 983 (3rd Cir. 1966)) (noting that unlike an evidential admission made spontaneously during oral testimony under the stress of a trial, binding effect is given to an admission under Rule 36 because "[i]t is . . . a studied response, made under sanctions against easy denials, to a request to assert the truth or falsity of a relevant fact pointed out by the request for admission . . . [and is] normally made under the direction and supervision of counsel, who has full professional realization of their significance.").
Brttingham v. Lankford, 1987 WL 17179, at *1 (Del.Super.Ct. Sept. 8, 1987) (citing Home Indemnity Co. v. Grossi, C.A. No. 79C-AU-37, Christie, J. (Del.Super.Ct. Mar. 24, 1983); 4A J. MOORE, J. LUCAS D. EPSTEIN, MOORE `S FEDERAL PRACTICE ¶ 36.02 (2d ed. 1984)).
22. The carefully prescribed procedures of Rule 36(a) were not followed in connection with the preparation and submission of the Letter. Although Mr. Merritt argues that "[t]he permissive language of [Rule 36] does not preclude a party from voluntarily admitting liability[,]" the Court finds it compelling that Mr. Merritt never sent a request to UPS to admit that it was responsible for "on-going" temporary partial disability payments for any amount, let alone $75 per month. The Letter was addressed directly to the Board, not Mr. Merritt, and it was not in the form of an answer as required by Rule 36(a). Moreover, the question of whether Mr. Merritt was entitled to disability compensation was in dispute and an ultimate fact to be resolved at the hearing. The Board would have had little reason to conduct an intensive factual inquiry to evaluate the testimony of medical experts and the viability of a labor market survey if the parties had not considered the matter to be in dispute. The Letter is not a judicial admission contemplated under Rule 36.
D.I. 11, at 6.
2. The Letter Is Not A Settlement Offer Because It Does Not Comply With 19 Del. C. § 2320(10)(b) .
23. 19 Del. C. § 2320(10)(b) states:
In the event an offer to settle an issue pending before the Industrial Accident Board is communicated to the claimant or the claimant's attorney, in writing, at least 30 days prior to the trial date established by the Board on such issue and the offer thus communicated is equal to or greater than the amount ultimately awarded by the Board at the trial on that issue, the provisions of paragraph a. of this subdivision shall have no application. If multiple issues are pending before the Board, said offer of settlement shall address each issue pending and shall state explicitly whether or not the offer on each issue is severable. The written offer shall also unequivocally state whether or not it includes medical witness fees and expenses and/or late cancellation of fees relating to such medical witness fees and expenses.
A letter is only a settlement offer if it contains an actual offer to settle. After the settlement offer is communicated to the claimant or his attorney, the employer submits the settlement offer to the Board in a sealed envelope at the hearing. In Bestemps v. Gibbs, this court affirmed the Board's finding that an employer's letter to the Board was not a settlement offer. The applicable statute was deemed clear and unambiguous, and the Board properly concluded that the letter was not an offer to settle after applying the plain meaning of the statute. In particular, "the phrase `offer to settle' has a plain meaning which is readily understood and which is not confused or otherwise undermined by the statutory language." Using the plain language of the statute, the Board in Bestemps correctly found that the letter from the employer was not a settlement offer because:
See Allens Food v. Nesmith, 1997 WL 33442117, at *3 (Del.Super.Ct. June 3, 1997) (holding that letter from employer's attorney to claiman t's attorn ey requesting a photograph was not a settlement offer because it was not an "offer to settle, but rather "an invitation to `explore' the options.").
See Carrion v. City of Wilmington, 2006 WL 3502092, at *2 (Del.Super.Ct. Dec. 5, 2006) (noting that the employer gave the Board a settlement offer that was communicated to the claimant in a sealed envelope at the hearing).
1998 WL 960759, at *1-2 (Del.Super.Ct. Oct. 22, 1998).
Id. At that time, 19 Del. C. § 2320(g)(2) was the applicable statute and its language was identical to § 2320(10)(b). Id. at *2.
Bestemps, 1998 WL 960759, at *2.
(1) Employer's counsel did not suggest to the Board that an offer existed, either during the hearing or during discussions concerning Claimant's counsel fee affidavit; (2) the letter was addressed to the Board rather than to the opposing party, as is standard practice when making a settlement offer; (3) the letter does not contain any of the words `offer,' `settle,' or `settlement'; and (4) the letter does not contain an unequivocal statement regarding medical witness fees, as required by 19 Del. C. § 2320(g)(2).
Id. at *2.
Id. at *2.
In this case, although the Board did not expressly find vel non the Letter was a settlement offer, the circumstances supporting the Board's finding in Bestemps are present here and compel the same conclusion. UPS' counsel did not inform the Board that an offer existed at any point during the hearing or in any other discussions. The Letter was addressed to the Board, not Mr. Merritt, and carbon copied to Mr. Merritt's attorney. The words "offer," "settle," or "settlement" do not appear anywhere in the Letter. Lastly, the Letter does not comply with § 2320(1)(b) because it does not contain an unequivocal statement regarding medical witness fees. Moreover, UPS' counsel did not submit the Letter to the Board in a sealed envelope. Instead, she referred to the contents of the letter openly at the hearing in her opening statement. The Letter is, therefore, not a settlement offer. "If common sense is to prevail over legal fiction, no other conclusion can be reached." 3. The Letter Is An Amendment To UPS' Pretrial Memorandum Because It Comports with IAB Rule 9.
See Merritt v. United Parcel Service, C.A. No. 06A-06-016, IAB Hr'g Tr. 1:14-15, 2:21, 3:1-2 (May 4, 2006) ("Transcript").
Bestemps, 1998 WL 960759, at *3.
24. 19 Del. C. § 2121(a) confers upon the Board the "authority to make its own rules of procedure for the purposes of carrying out the provision of the Act." Industrial Accident Board Rule 9 ("Rule 9") addresses matters involving pretrial procedure. In particular, it mandates that the parties confer at a time set by the Scheduling Officer to discuss ways to limit the issues or resolve any pretrial concerns. Rule 9(D) requires the parties to submit specific information and documentation at the pretrial hearing to comprise their pretrial memoranda, such as contact information for witnesses, a statement of relief sought, and defenses to be used by the opposing party. Rule 9(E) provides: "Either party may modify a pretrial memorandum at any time prio r to thirty (30) days before the hearing . . . Notice of any modification to the pretrial shall be sent to the opposing counsel or to a party directly if the party is unrepresented[.]" If a party seeks to modify the pretrial memorandum less than thirty days before the hearing, the notice requirement can be waived by written consent of the parties, the Pretrial Scheduling Officer, or the Board after the party submits a written application. The thirty day notice requirement "serves the interest of order and efficiency in Board proceedings as well as prevention of unfair surprise. Further, it is incumbent on counsel to peruse these documents for accuracy since they control the ensuing proceedings."
Delaware Dept. of Labor, Div. Of Industrial Affairs, Rules of the Industrial Accident Board for the State of Delaware, DE ADC 65 400 011, Rule 9 (Westlaw) (1998) ("Rule 9").
Rule 9(A).
Rule 9(E).
Haveg Indus., Inc. v. Humphrey, 456 A.2d 1220, 1222 (Del. 1983).
25. A letter must eith er req uest t o amend or modi fy the p retri al memo randum or, if timely, advise the Board of changes to the pretrial memorandum to be considered as amendments to the original submission. The Court looks to the objective manifestations of the letter writer's intent to determine if the letter was intended to be an amendment to the pretr ial memo randu m. A letter addressed to the Board that copies the opposing party or his attorney can operate as a modification to the pretrial memorandum.
See K-Mart, Inc. v. Bowles, 1993 WL 331184, at *4 (Del.Super.Ct. Aug. 18, 1993) (finding that the Board did not abuse its discretion when it found that a letter from employer's counsel to the Board was not an amendment to the pretrial memorandum because the letter was not timely filed and it did not request to amend or modify the pretrial memorandum).
See id. at *4 n. 6 (noting that the employer's counsel's subjective intent when submitting a letter to the Board was irrelevant; an objective reading of the letter did not provide the employee with fair notice of the purported amendment).
See Bestemps, 1998 WL 960759, at *1 (recognizing that "Employer wrote to the Board (and copied Claimant) requesting to amend the Employer's portion of the pretrial memorandum to admit" a percentage of impairment). See also Friebel v. Nat'l Glass Metal, 2004 WL 2829050, at *2 (Del.Super.Ct. April 30, 2004) (noting that employee amended his pretrial memorandum when he sent a letter to the Board and employer's counsel advising that he sought to amend and add to the pretrial memorandum); Muziol v. DaimlerChrysler Corp., 2002 WL 819138, at *4 (Del.Super.Ct. April 30, 2002) (finding that the Board did not abuse its discretion when it allowed Claimant to amend its pretrial memorandum after it received a letter from the employee one day before the hearing requesting to amend the pretrial memorandum); General Motors Corp. v. Parker, 1994 WL 381014, at *3 (Del.Super.Ct. June 13, 1994) (finding that the Board abused its discretion when it allowed employee to change the date of the compensable injury on the day of the hearing because the date of the injury was established in employee's original petition, petition to determine additional compensation due, and in a letter from her counsel "amending the pretrial memorandum").
26. The Letter here is in the proper form of an amendment to a pretrial memorandum under Rule 9(E). UPS' counsel addressed the Letter to the Board and copied Mr. Merritt's attorney. The Letter was timely submitted on April 4, 2006, thirty days before the hearing began on May 4, 2006. The Letter advised the Board that (1) UPS did not dispute Mr. Merritt's relapse from the date of his second surgery, January 11, 2006, to the date of his examination by Dr. Edelsohn, March 8, 2006; (2) UPS did not dispute that it was responsible for "temporary partial disability benefits from March 8, 2006 to the present and on-going at a rate of $75 per week;" and (3) UPS could not accommodate certain restrictions to Mr. Merritt's work.
See D.I. 9, Ex. E.
27. Additionally, the Court is satisfied that UPS' counsel's objective manifestations demonstrate that she intended the Letter to serve as an amendment to UPS' pretrial memorandum after Dr. Edelsohn examined Mr. Merritt. Upon noting that Mr. Merritt underwent the second surgery and a medical evaluation after the original petition to terminate was filed, UPS' counsel stated in her opening remarks "we did amend the pre-trial to admit that there was a recurrence of total disability or ongoing disability" and that the amount of $75 for temporary partial disability was a made up number to help Mr. Merritt ease back into the work. She concluded "we are going to ask that you enter an order consistent with my letter of April 4th, 2006 in which [Mr. Merritt's] temporary total disability benefits are terminated effective March 8th, 2006 with temporary partial disability benefits at the rate of $75 per week beginning March 8th, 2006[. T]hank you." Again, in her closing remarks, UPS' counsel referred to the Letter when she stated "we picked $75 a week we thought it was a fair figure[. T]he Board may feel something else is fair[.]"
Transcript 1:14-15, 2:21, 3:1-2.
Id. 3:19-20 — 4:1-2.
Id. 95:6-8.
28. Furthermore, the Court is satisfied that both parties understood the Letter to be an amendment to UPS' pretrial memorandum. Mr. Merr itt's counsel was copied on the Letter thirty days before the hearing and was present when UPS' counsel referred to the Letter in both her opening and closing statements. It is, of course, significant that counsel did not object to the characterization of the Letter as an amendment to the pretrial memorandum. Indeed, Mr. Merritt's counsel asked the Board to find contrary to the Letter when he stated in his opening remarks "the evidence will show that [Mr. Merritt] is still totally disabled and we would ask the Board to make that finding." The Board, too, understood the Letter to be an amendment to the pretrial memorandum because it explained that UPS changed its petition to terminate benefits in the Letter before the hearing was held.
Id. 6:9-10.
D.I. 3, at 1.
29. Based on the foregoing, and the plain language of the Letter stating that UPS "admits temporary partial disability benefits," the Court is satisfied that UPS' counsel manifested an objective intent to modify the pretrial memorandum to reflect UPS' recognition that it was responsible for partial disability benefits for a limited period of time. Thus, the Board did not commit reversible legal error when it found that Mr. Merritt was entitled $141.95 per week (almost twice the amount referenced in the Letter) for a period of six weeks following termination of total disability. The Court need not address Mr. Merritt's claim that he was denied due process because the Board did not abuse its discretion in its treatment and consideration of the Letter. B. The Board May Set An End Date For Mr. Merritt's Temporary Partial Disability Benefits Pursuant to 19 Del. C. § 2325.
D.I. 9, Ex. E (emphasis supplied).
30. "Partial disability refers to a period of time that an injured employee suffers a partial loss of wages as a result of that injury." The Board may award partial disability benefits pursuant to 19 Del. C. § 2325 ("Section 2325"), titled Compensation During Partial Disability. Benefits awarded under Section 2325 "shall be paid during the period of such partial disability for work, [ sic] not, however, beyond 300 weeks." Mr. Merritt does not challenge the Board's authority to award temporary partial disability compensation for periods less than 300 weeks. Rather, he challenges the Board's ability to set a future date as the end date for temporary partial disability compensation. The Court is unable to locate authority concerning the Board's ability to set an end date in the future, nor has Mr. Merritt pointed the Court to such authority. Indeed, he admits "case law is sparse on this issue[.]" This leads the Court to a broader interpretation of the Board's authority under Section 2325 in order to reach a decision on the narrow issue presented here.
Carr v. Stockley Ctr. 2004 WL 2829102, at *4 (Del.Super.Ct. April 29, 2004).
("Section 2325"). D.I. 9, at 13.
31. "Statutes must be read as a whole and all the words must be given effect" before a court can determine whether to engage in statutory construction. "Only where a statute is ambiguous and its meaning cannot be clearly ascertained does a court engage in the process of statutory construction and interpretation." If, however, "a statute is unambiguous, there is no need for judicial interpretation, and the plain meaning of the statutory language controls."
Rosenthalis v. Doctors for Emergency Servs., P.A., 2004 WL 692686, at *3 (Del.Super.Ct. Mar. 31, 2004) (citation omitted).
Newtowne Vill. Servs. Corp. v. Newtowne Rd., 772 A.2d 172, 176 (Del. 2001).
Eliason v. Englehart, 733 A.2d 944, 946 (Del. 1999). See also Cantinca v. Fontana, 884 A.2d 468, 471 (Del. 2005) ("This Court has held that in construing a statute, the plain meaning of the statutory language controls.").
32. A statute is "ambiguous when it is reasonably susceptible of different conclusions or interpretations." Ambiguity also exists "if a literal reading of the statute would lead to an unreasonable or absurd result not contemplated by the legislature." "If a statute is ambiguous, it should be construed in a way that will promote its apparent purpose and harmonize [it] with other statutes." Such an interpretation would align the statute with the goal of statutory construction — "to . . . give effect to legislative intent."
Newtowne, 772 A.2d at 176.
Id.
Eliason, 733 A.2d at 946.
Id.
33. When interpreting the provisions of Delaware's Workers' Compensation Act, it is well settled that they "are to be liberally construed to effectuate the statute's intended goal of compensation to the injured employee." Indeed, the "`liberal interpretation is used to resolve any reasonable doubts in favor of the worker because it was for the workers' benefit that the act was passed.'"
Johnson Controls, Inc. v. Fields, 758 A.2d 506, 509 (Del. 2000). See also Hirneisen v. Champlain Cable Corp., 892 A.2d 1056, 1059 (Del. 2006) ("This Court has recognized that Delaware courts are to interpret the Delaware Workers' Compensation Act liberally so as to effectuate its remedial purpose.").
Hirneisen, 892 A.2d at 1059 (citation omitted). See also 3B NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 75:3, 37 (6th ed. rev. 2003) ("[A]ny reasonable doubts as to construction [of a workers' compensation provision] should be resolved in favor of including the claimant within the coverage of the statute.").
34. Section 2325 is "designed to reimburse an employee, at least in part, for loss of earnings[.]" Section 2325 states
Ernest DiSabatino Sons, Inc. v. Apostolico, 269 A.2d 552, 553 (Del. 1970).
For injuries resulting in partial disability for work, except the particular cases mentioned in subsections (a)-(g) of § 2326 of this title, the compensation to be paid shall be 66 2/3 percent of the difference between the wages received by the injured employee before the injury and the earning power of the employee thereafter; but such compensation shall not be more than 66 2/3% of the average weekly wage per week as announced by the Secretary of Labor for the last calendar year for which a determination of the average weekly wage has been made. This compensation shall be paid during the period of such partial disability for work, not, however, beyond 300 weeks. In construing the words "earning power of the employer thereafter" as those words appear in this section, the Board shall take into consideration the value of gratuities, board, lodging and similar advantages received by the employee in subsequent employment.
Applying the principles of statutory construction to this provision, it appears that Section 2325 speaks in plain and unambiguous terms. A literal reading provides that partial disability compensation must be paid "during the period of such partial disability for work," but that such payments may not exceed 300 weeks. The provision is ambiguous, however, in the sense that it does not specify whether the time period up to 300 weeks must occur before the Board hearing or if it can encompass some projected period of partial disability after the hearing. Looking at the Board's prior awards of temporary partial disability sheds some light on how to "promote [Section 2325's] apparent purpose and harmonize it with other statutes." The Board has awarded partial disability for fixed periods of time before the hearing, ongoing periods, and, at times, without any specification as to the duration of the compensation. An award that is ongoing or does not specify its length clearly allows the claimant to receive compensation until some point in the future when the award must expire. It follows that if the Board can order the employer to meet a continuing, open-ended future obligation to pay partial disability benefits, it can also set a future date on which the temporary partial disability compensation will end if it determines that the claimant will suffer a specified loss of earnings. This interpretation "effectuate[s] the statute's intended goal of compensation to the injured employee" because it ensures that a worker found to be partially disabled is compensated for his injuries for the appropriate time as determined by the Board.
See also Hall v. Bell Atlantic Delaware, Inc., 1998 WL 960686, at *4 (Del.Super.Ct. Dec. 16, 1998) (interpreting Section 2325 to mean that "[p]artial disability payments have a maximum duration of 300 weeks.").
Newtowne, 772 A.2d at 176.
See Parke v. Sunrise Assisted Living, Inc., 2005 WL 268044, at *1 (Del.Super.Ct. Jan. 31, 2005) (stating that in its decision on February 4, 2004, the "Board granted partial disability benefits ending December 29, 2003.").
See Playtex Apparel, Inc. v. Melvin, 867 A.2d 902, at *1 (Del. 2005) (noting that the Board awarded claimant temporary partial disability benefits following her industrial accident at rate of $219.80 per week for four weeks and " ongoing temporary partial disability benefits at a rate of $96.80 per week thereafter.") (emphasis supplied). See also Avon Products v. Flaherty, 2004 WL 2187619, at *1 (Del.Super.Ct. Sept. 28, 2004) (stating that after the Board held a hearing on partial disability, it "awarded ongoing weekly benefits in the amount of $171.09 per week") (emphasis supplied); Keeler v. Metal Masters Foodservice Equip. Co., Inc., 768 A.2d 979, 980 (Del.Super.Ct. 1999) (explaining that the Board awarded claimant temporary partial disability of "$166.67 per week from September 7, 1995 onward") (emphasis supplied); Shaffers Markets and Delaware Supermarkets v. Alphin, 1999 WL 1568396, at *2 (Del.Super.Ct. May 18, 1999) (noting that the Board found for claimant and awarded temporary partial disability benefits from date of termination " ongoing") (emphasis supplied).
See Blythe v. VPI Mirrex, LLC, 2004 WL 1102438, at *2 (Del.Super.Ct. May 10, 2004) (stating that the Board awarded partial disability benefits "at the compensation of $235.29 per week"). See also O'Donnell v. UE C Catalytic, Inc., 1995 WL 717196, at *2 (Del.Super.Ct. Nov. 7, 1995) (noting that "The Board awarded temporary partial disability in a weekly amount of $257.33"); Cooper v. W.L. Gore Assocs., 1994 WL 164478, at * 1 (Del.Super.Ct. Apr. 20, 1994) (explaining that the Board granted the claimant "temporary disability compensation commencing March 18, 1992, at a rate of $84.69 per week.").
35. The interpretation urged by Mr. Merritt — that the Board may not set an end date in the future for the termination of partial disability compensation — would lead to "an unreasonable or absurd result." The Board would likely award less partial disability compensation because it would be limited to retrospective determinations of partial disability, even where substantial evidence exists to support a prospective award for a fixed period. In turn, this would prevent a partially disabled employee from seeking lost wages until after he has suffered the loss of earnings. This means that he would be forced to live without the income to which he is entitled until he secured a disability determination, even though lost income has been projected.
Newtowne, 772 A.2d at 176.
The Court notes th at fact-finders in Delaware are routinely called upon to make determinations regarding future damages based on current projections. See, e.g., Drozdov v. Webster, 345 A.2d 895, 896 (Del. 1975) (citing Henne v. Balick, 146 A.2d 394, 396 (Del. 1958)) (explaining that juries may award future damages if there is "some reasonable basis in fact upon which a jury may estimate with a fair degree of certainty the probable loss a plaintiff will sustain").
36. The Court's interpretation of Section 2325 is consistent with its purpose in that it allows the claimant to be compensated for his partial loss of earnings only for that period of time that the Board determines he actually will suffer diminished earnings, whether it be before or after the hearing before the Board. The question of whether the claimant suffers a loss of earnings and for how long is a factual question that the Board must decide and such decisions will not be disturbed unless the Court determines that they are not supported by substantial evidence. Although the ultimate decision must be supported by substantial evidence, the Court is satisfied that the Board is authorized by statute to set an end date in the future for the termination of temporary partial disability benefits without implicating a claimant's due process rights.
C. The Board's Decision Is Supported By Substantial Evidence.
37. In order to terminate total disability benefits, UPS bears the initial burden of demonstrating that Mr. Merritt "is no longer totally incapacitated for the purpose of working." If UPS carries its burden, Mr. Merritt must then show he is a displaced worker. A displaced worker is one who "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." In determining whether a claimant is a displaced worker, the Supreme Court of Delaware has stated that the Board should consider "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." If, however, Mr. Merritt cannot show he is a prima facie displaced worker, he still carries his burden if he "has made reasonable efforts to secure suitable employment which have been unsuccessful because of the injury." If Mr. Merritt meets his burden, the burden shifts back to UPS to prove that "there is regular employment available within the employee's capabilities."
Torres v. Allen Family Foods, 672 A.2d 26, 30 (Del. 1995).
Id.
Id. (internal citations omitted).
Waddell v. Chrysler Corp., 1983 WL 413321, at *1 (Del.Super.Ct. June 7, 1983) (quoting Ham v. Chrysler Corp., 231 A.2d 258, 261 (Del. 1967)).
Torres, 672 A.2d at 30 (internal citations omitted).
Id.
39. When making its decision, "[t]he IAB is free to adopt the opinion testimony of one expert over another, and that opinion, if adopted, will constitute substantial evidence for purposes of appellate review." Furthermore, the reviewing court is not required to reverse a Board decision just because "the Board fails to make its findings in expansive terms. If appropriate, reviewing courts can look at subordinate facts underlying the Board's conclusions when those facts can be determined, by implication, from the ultimate conclusion."
Bolden v. Kraft Foods, C.A. No. 04A-12-002, No. 363, 2005, at 8 (Del. Dec. 21, 2005).
Haveg, 456 A.2d at 1222.
40. The Court is satisfied that substantial evidence supports the Board's finding that Mr. Merritt could perform work in some capacity. Specifically, the Board found that Mr. Merritt could perform sedentary work beginning with part time hours and increasing to full time hours after six weeks based on Dr. Edelsohn's testimony, Dr. Kalamchi's medical notes and Mr. Merritt's own testimony. After Dr. Edelsohn examined Mr. Merritt and reviewed his medical records and history, he opined that Mr. Merritt could return to work if restricted to sedentary tasks. He also opined that Mr. Merritt's standing and walking should be limited and that he should be allowed to change positions as needed to provide relief for his pain and numbness. Both Dr. Kalamchi's post-surgery notes and Mr. Merritt's testimony indicates that Mr. Merritt was suffering from less pain and numbness than before the January 11, 2006 surgery. Although the Board accepted that Mr. Merritt "still has residual symptoms and requires more time to do some things, such as getting up in the morning," the Board adopted Dr. Edelsohn's opinion that sedentary work restrictions and a gradual return to full time work would accommodate these symptoms.
D.I. 3, at 16.
id.
41. The Court is also satisfied that there was substantial evidence that Mr. Merritt is not a prima facie displaced worker. The only evidence Mr. Merritt offered to satisfy his burden was Dr. Grossinger's testimony. Dr. Grossinger opined that Mr. Merritt was not able to work at UPS because he found abnormalities in a neurological examination and diagnostic testing, and Mr. Merritt continued to complain of pain. Dr. Grossinger further opined that Mr. Merritt was totally disabled for three months as of March 29, 2006. The Board found that "Dr Edelsohn's opinion better reflects Claimant's current condition and ongoing recovery from surgery." Although the Board did not "make its findings in expansive terms," by rejecting Dr. Grossinger's testimony, the Board implicitly found that Mr. Merritt did not meet his burden to show he is a prima facie displaced worker. Mr. Merritt offered no evidence of reasonable efforts to obtain employment. Accordingly, there was substantial evidence to support the Board's conclusion that Mr. Merritt is "physically capable of working in some capacity" thereby terminating his right to total disability benefits.
id.
See Haveg, 456 A.2d at 1222-23.
D.I. 3, at 16.
The Board also properly found that the effective date of the termination of total disability benefits was April 24, 2006, the last date Mr. Merritt's treating physician, Dr. Kalamchi, had extended his total disability status.
Id. at 16-18 (citing Gilliard-Belfast v. Wendy's Inc., 745 A.2d 251, 254 (Del. 2000)).
42. Despite the termination of total disability benefits, the employer bears the burden of showing that a claimant has no partial disability when "there is evidence that in spite of improvement, there is a continued disability, and such disability could reasonably affect t he employee's earning capacity." The Board uses the same test to determine partial disability as it does for total disability. Once again, the Court is satisfied that Dr. Edelsohn's expert opinion constitutes substantial evidence demonstrating that Mr. Merritt's disability would not affect his earning capacity after a six week gradual return to full time work. Ms. Langrehr's testimony that there were six jobs available to Mr. Merritt that were within his physical limitations also supports the Board's finding that he was not eligible for partial disability compensation at the end of the six week period. The Board's decision that "Claimant would suffer no loss of earnings for fulltime work" at the end of the six week period is therefore supported by substantial evidence.
Waddell, 1983 WL 413321, at *3.
Globe Union, Inc. v. Baker, 310 A.2d 883, 888 (Del. 1973).
D.I. 3, at 19.
43. Based on the foregoing, the decision of the Board granting UPS' petition to terminate total disability benefits and awarding Mr. Merritt temporary partial disability compensation is AFFIRMED.
IT IS SO ORDERED.