SABO v. PESTEX, INC.

Full title: John Sabo v. Pestex, Inc

Court: Superior Court of Delaware

Date published: Oct 28, 2004

C.A. No. 03A-11-001-RFS (Del. Super. Ct. Oct. 28, 2004)

Opinion

C.A. No. 03A-11-001-RFS.

Submitted: June 9, 2004.

Decided: October 28, 2004.

Walt F. Schmittinger, Esquire, Schmittinger and Rodriguez, P.A., Dover, DE.

Robert H. Richter, Esquire, Elzufon Austin Reardon Tarlov Mondell, Wilmington, DE.

RICHARD F. STOKES, Judge.

Dear Counsel:

This is my decision regarding John Sabo's ("Sabo's") appeal of the Industrial Accident Board's ("the Board's") decision terminating his total disability benefits. For the reasons set forth herein, the Board's decision is affirmed in part, and reversed in part and remanded for further proceedings consistent with this opinion.

STATEMENT OF THE CASE

A. History

Claimant, John Sabo, a Pest Termite Technician for Pestex, Inc. ("Pestex") injured his back and hip in a compensable industrial accident on March 7, 2001. At that time, he slipped on a patch of ice and fell into a hole while walking around his truck. In a decision issued June 5, 2003, the Board found Sabo suffered a thirteen percent permanent impairment to the lumbar spine as a result of the accident. Sabo v. Pestex, IAB Hrg. No. 1224442. The Board awarded the claimant thirty-nine weeks of compensation. Pestex filed a Petition for Termination of Disability Benefits on April 22, 2003. A hearing was held on October 16, 2003. The Board issued its opinion on October 27, 2003 terminating total disability benefits and awarding partial disability benefits. Claimant appealed the issue of the Board's termination of his total disability benefits.

B. Board Hearing

At the hearing, Dr. Jay Freid ("Dr. Freid") testified on behalf of Claimant, Sabo, and Dr. Evan Crain ("Dr. Crain") testified on behalf of Pestex. Their testimony was presented by deposition. In addition, Renee Berk Gleckner ("Gleckner"), a vocational consultant, testified on behalf of Pestex about a labor market survey she conducted. Sabo also testified.

Dr. Freid has been treating Sabo concerning the accident since March of 2001. He told Sabo to stop working on March 9, 2001. He diagnosed him with lumbar radiculopathy aggravated by his fall. Sabo had been taking Oxycotin and Vicodin prior to the 2001 injury, but afterwards his need for the medication increased substantially. On May 9, 2001 Dr. Freid released him to light duty work effective May 14, 2001. In June and July of 2001 Sabo's pain was getting back to his baseline, and his medication was being reduced. Sabo moved to New Jersey in October of 2001 and stayed there until November of 2002. During that time, he saw a Dr. Pollen and began to use a cane.

When he returned to Delaware and began seeing Dr. Freid again, his pain had worsened. Dr. Freid testified that when he came back, Sabo was not able to work and his wife was having to help him get around at home a lot more. His walking had gotten worse, and his Oxycotin dose had tripled. In addition to his pain medication, Sabo was prescribed Remeron for depression in January of 2003. On March 17, 2003, Dr. Freid again released Sabo to return to light duty work.

Dr. Freid believes Sabo's condition had improved. He was not falling as much at home but was still having problems with getting his pain under control. As a result, his dosages of Oxycotin had been increased substantially. By January 31, 2003, Dr. Freid testified that Sabo told him he was helping out more at home. By August 20, 2003, Sabo said his back pain was doing much better and his dosage of Oxycotin was reduced. More recently, Dr. Freid increased Sabo's prescription again because he was having trouble managing the pain.

Although he had released him to work in March of 2003, Dr. Freid thinks Sabo's ability to work is limited by the fact that he could probably only sit for about a half an hour at a time and that he would have trouble standing for long periods. He testified that he is limited almost completely with lifting and that his educational level will impede his ability to find a job. He does not think he is safe driving more than short distances.

Dr. Crain, a Board Certified Orthopedic Surgeon, examined Sabo on March 19, 2003 and reexamined him on August 14, 2003. He also reviewed medical records from Dr. Freid, from Beebe Medical Center, from a Dr. Elizabeth Bell and from Dr. Pollen, whom Sabo had seen while in New Jersey. He found Sabo was unable to walk on his heels and his toes. Sabo had pain with the lower back range of motion, but he had a full range of motion in the upper extremities and the cervical spine. Dr. Crain felt Sabo should be able to do light duty work that was primarily sedentary as long as he was restricted to no lifting of more than twenty-five pounds. He would need to take frequent standing and sitting breaks. The doctor opined to counsel that Sabo might be capable of driving for up to two hours at a time if he could have five minute standing breaks. He thought that with an exercise program or an increase in activity levels, Sabo could decrease his symptoms, and he recommended that he wean himself off his medications with help from his physician. Crain's diagnosis was degenerative disk disease of the lumbar spine.

Gleckner, the Vocational Rehabilitation Specialist who testified on behalf of Pestex, performed a labor market survey at the request of the company. Her medical information was based upon the diagnosis and recommendations of Dr. Crain. She was told Sabo had completed the ninth grade, that he had his Commercial Driver's License ("CDL"), was known to have some computer skills and was required to complete paperwork as part of his job for Pestex. She identified nine positions. She testified about several of the jobs in the survey. One position required computer skills, but was not physically demanding and called for no specific education or background. Other positions included a job as an automobile parts clerk, which required no lifting, and a production operator at a dental teeth cleaning products company.

John Sabo testified about his condition and about his attempts at finding a job. He said his pain had been getting worse, but that his dosage of Oxycotin had been increased a few days before the hearing and, as a result, the pain was getting better. His symptoms also include numbness in his legs and flare ups of pain around twice a week, from which it takes him a full day to recover. He testified that he can do such things as cook, but needs help with showering and that he cannot do household chores such as vacuuming. He only feels comfortable driving up to forty-five minutes to an hour at a time on a good day. During the day he builds bird houses, and he takes short walks in order to be more active and to keep from getting stiff. He uses a cane to get around and testified that he had discussed using a cane with Dr. Pollen when he was in New Jersey.

Regarding his job search, he testified that he talked to the employers in the labor market survey, but that some of them were concerned about his use of narcotics. They would not be able to put him on their insurance. One employer apparently saw his cane and told him he would have a hard time carrying parts with it. Sabo's education extends up to the first two weeks of the ninth grade. He says he has a computer at home for his wife but does not know how to use it. In addition, he stated it was unlikely that he could pass the Department of Transportation physical in order to use his CDL.

C. Finding of the Board

The Board, in its October 27, 2003 decision, concluded that Claimant was not totally disabled and that his total disability benefits should be terminated. It accepted the testimony of Dr. Crain over that of Dr. Freid in determining that Sabo was capable of working. It also had problems with the Claimant's credibility because he was restless and could not stay seated during the hearing. This was inconsistent with what he had been telling Dr. Freid over the past six months about the improvement of his pain.

The Board also concluded that Sabo was not economically totally disabled. He was not a prima facie displaced worker because the skills he used to acquire a Commercial Driver's License were transferable to other jobs. Moreover, it accepted Gleckner's testimony that his medical prescription for narcotics should not be a problem in his job search. It also did not believe that his cane was a medical necessity, based on the lack of testimony to that effect. No doctor had prescribed it to him. The Board found that Claimant failed to meet his burden of showing he had conducted a reasonable job search, which was unsuccessful because of the injury. He had five months since the petition was filed, during which time he contacted only the nine employers on the labor market survey. Sabo's total disability benefits were terminated and he was instead awarded partial disability benefits. At issue in this case is the termination of the total disability benefits and related matters.

DISCUSSION

A. Standard of Review

The Supreme Court and this Court repeatedly have emphasized the limited appellate review of the factual findings of an administrative agency. The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence. Johnson v. Chrysler Corp., 312 A.2d 64, 66-67 (Del. 1965); General Motors v. Freeman, 164 A.2d 686, 688 (Del. 1960), and to review questions of law de novo, In re Beattie, 180 A.2d 741, 744 (Del.Super.Ct. 1962). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battista v. Chrysler Corp., 517 A .2d 295, 297 (Del.), app. dism., 515 A.2d 397 (Del. 1986). The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. Johnson v. Chrysler Corp., 312 A.2d at 66. It merely determines if the evidence is legally adequate to support the agency's factual findings. 29 Del. C. § 10142(d).

B. Termination of Total Disability Benefits

Pursuant to 19 Del. C. § 2347, the Board, may, "upon petition of any party in interest, on the ground that the incapacity of the injured employee has subsequently terminated" or diminished, make an award ending or diminishing the compensation previously agreed upon. In Hartnett v. Coleman, the Supreme Court stated that "the degree of compensable disability depends upon the degree of impairment of earning capacity." Initially the burden lies with the employer to prove that the employee is no longer totally incapacitated for the purposes of working. Torres v. Allen Family Foods, 672 A.2d 26, 30 (Del. 1995). "If the employer satisfies that burden, the employee must show that she is a `displaced worker.'" Id. An employee "may be totally disabled economically, and within the meaning of the Workmen's Compensation Law, although only partially disabled physically." Ham v. Chrysler Corp., 231 A.2d 258, 261 (Del. 1967).

Such an economically disabled employee, a "displaced worker," is a worker "who, while not 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." Id. If the claimant is prima facie displaced, then the burden is on the employer to show the availability to the employee of regular employment within his capabilities. If the employee is not prima facie displaced, then he must show he made reasonable efforts to secure employment, which were unsuccessful because of the injury. Franklin Fabricators v. Irwin, 306 A.2d 734, 736 (Del. 1973). See also Lynch v. Baker, 1997 WL 817844, at *4-5 (Del.Super.Ct.). A worker is prima facie displaced if he does not have the education, training, experience or skills to qualify him for work other than as a general laborer who is able to do only light or sedentary work. Lister v. Fluor-Daniel Const. Co., 1992 WL 91122, at *3 (Del.Super.Ct.), citing, Ham, 231 A.2d at 261.

For further clarification, the Supreme Court has stated that the burdens of proof operate as follows:

In the ordinary total disability termination case, the employer should initially be required to show that the employee is not completely incapacitated for work and, in demonstrating medical employability, will have, as a practical matter, the opportunity to show by the factors of physical impairment, mental capacity, training, age, etc., that the employee is not in the `odd-lot'<sup>1</sup> category. In response, the employee may present his evidence in support of total disability, his evidence that he is prima facie in the `odd-lot' category and, if appropriate, his evidence of reasonable efforts to secure employment which have been unsuccessful because of the injury. In rebuttal, the employer may present evidence of the availability of regular employment within the employee's capabilities as well as any other rebuttal evidence. Surrebuttal may be permitted to show nonavilability [sic] of regular employment. Obviously, legal rulings, when applied for in a given case can affect this general procedural outline and these remarks should not be construed as a rule of law to be inflexibly applied.

Chrysler Corp. v. Duff, 314 A.2d 915, 918 n. 1 (Del. 1973).

1 The phrase "odd-lot" category is synonymous with the idea of the displaced worker. In Ham, 231 A.2d at 261, the Supreme Court expressed a preference for the descriptive term "displaced," as opposed to saying a worker falls into the "odd-lot" category, in order to signify that the worker is "displaced" from the regular labor market.

1 The phrase "odd-lot" category is synonymous with the idea of the displaced worker. In Ham, 231 A.2d at 261, the Supreme Court expressed a preference for the descriptive term "displaced," as opposed to saying a worker falls into the "odd-lot" category, in order to signify that the worker is "displaced" from the regular labor market.

1. Sabo was not totally physically disabled.

Pestex met its burden of proving Sabo was not totally physically disabled. The Board accepted the testimony of Dr. Crain over Dr. Freid and found that Sabo was capable of working. In its decision to find Sabo was not physically totally disabled, the Board found that Dr. Freid's testimony was inconsistent with the evidence. In addition, it had problems with Sabo's credibility because he could not sit still during the hearing. Although, the Court upholds the Board's decision to accept the testimony of Dr. Crain over that of Dr. Freid, it disagrees with how Sabo's credibility was assessed.² It may be well-established that the credibility of a witness is a question for the Board; however, a finding of credibility will not stand if it is a simple conclusory statement that the Board does not believe the Claimant. See Holley v. State, 1989 WL 147464, at * 4 (Del.Super.Ct.) ("As long as the Board, in its findings, does not make a simple conclusory statement that they did not believe the claimant, their findings of credibility will be sustained.").

2 The Court questions the Board's conclusions regarding Sabo's credibility because it based its opinions on his demeanor throughout the hearing, and not upon his testimony. While the issue of the admissibility of off-the-record demeanor has not been addressed in the setting of a board hearing, in criminal trials it has been deemed to be irrelevant. In Hughes v. State, 437 A.2d 559, 572 (Del. 1981), the Supreme Court noted that the practice of commenting on the courtroom demeanor of a defendant was "pregnant with potential prejudice." "[It] is also suspect because it assumes that there is such a thing as a model of `normal' courtroom behavior." Id. Similarly, in Bugra v. State, 818 A.2d 964, 967 (Del. 2003), the Court found a prosecutor's remarks to be an improper personal comment on the defendant's demeanor, when he responded to the defendant's laughter during his closing argument with the statement, "I guess Mr. Bugra thinks it's funny." As in Hughes and Bugra, when the Board comments on a claimant's off-the-record behavior, during the hearing, it risks making judgments based on a matter which has not been entered into evidence. Furthermore, there was no contemporaneous observation made, which makes for an unreviewable record. Here, Sabo had a medical condition which made it difficult for him to sit still for extended periods of time. In this context, the Board's conclusion was speculative.

Here, the Board found Sabo to be an unreliable witness because the fact that he could not sit still was inconsistent with what he had been reporting to Dr. Freid for the past six months. This conclusion is simply not supported by the record. Both Dr. Freid and Sabo testified that his pain had been worsening and that he had trouble managing his pain. Dr. Freid also stated that Sabo had trouble sitting for long periods of time, as evidenced by his deposition testimony:

Q. Doctor, what is your understanding of Mr. Sabo's tolerance for sitting, for example?

A. I don't know the exact amount, but I would guess more than a half hour an hour at a time he would probably have difficulty without being able to stand for a while.

Freid Dep. at 19. If anything, Sabo's conduct during the hearing was consistent with that of a person in pain from a back injury, who could not sit for long periods of time.

Furthermore, the Court finds the Board's conclusion that Dr. Freid's testimony was inconsistent with the evidence to be wrong, at least in one instance. It stated that there was nothing in the evidence to show why the Claimant's narcotic medication was doubled in October. However, both Sabo and Dr. Freid testified that, in recent months his pain had worsened considerably and that it became necessary to increase his medication.

But, despite these flawed findings of the Board, the Court still upholds its conclusion that Sabo was not totally physically disabled. Both doctors felt Sabo was physically capable of working. Dr. Crain believed that Sabo could do light duty work with some lifting restrictions. Moreover, even Dr. Freid believed that Sabo was capable of working. He had released him to light duty work in March of 2003.

2. Sabo met his burden of proof to show he was prima facie displaced.

The burden was thus on Sabo to prove that he was economically totally disabled, or a displaced worker. In this regard, he testified that he had only completed school up until the two weeks into the ninth grade. Sabo had achieved a Commercial Driver's License, but he could no longer drive for long periods and did not think he could pass the required physical in order to be allowed to continue to use the CDL. The Board, however, found Sabo was not prima facie displaced. It based this finding upon the assumption that since Sabo had a CDL he was capable of using related skills to acquire other jobs. In addition, it accepted the testimony of Ms. Gleckner in finding the narcotics he was on would not impede his job search. It was also unimpressed by Sabo's use of a cane and stated that Sabo had decided to get it on his own and that no doctor had prescribed it for him. In this process, the Board inproperly relied upon the Claimant's off the record demeanor as discussed in endnote 2.

Moreover, the Court cannot find substantial evidence to support the opinion of the Board that Sabo was not prima facie displaced. "`Substantial evidence' means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Diamond Fuel Oil v. O'Neal, 734 A.2d 1060, 1063 (Del. 1999). The reasons stated by the Board do not adequately support the conclusion that Sabo has the education, training or skills to qualify him for work for anything other than as a general laborer. It is unclear how the skills utilized to acquire a Commercial Drivers License may be transferable when Claimant testified that he cannot drive for more than forty-five minutes to an hour and that he could not pass the required physical in order to use his CDL. Dr. Crain even testified that Sabo could conceivably only drive for two hour periods, and with a five minute break to walk around. The Board did not elaborate on which skills it found were transferable and how they would lift Claimant out of the general laborer category. Cf. Brandywine Constr. Co. v. Hutchins, 1998 WL 438666 (Del.Super.Ct.) (finding the Board's decision that Claimant was prima facie displaced was supported by substantial facts when it found that his transferable skills were almost none because the only jobs he had held were as a truck driver and a machine operator, and he had only attended school through the seventh grade).

In addition, the Board cited no evidence in the record that Sabo had acquired any other skills. Sabo had not completed a high school education. See Bureau for the Visually Impaired v. Lawrence, 1999 WL 459299, at *5 (Del.Super.Ct.) (upholding Board's finding that Claimant was displaced when she had an eighth grade education, her only experiences was as a cafeteria worker and teacher's aide, and she did not feel capable, confident or qualified to work). But see Bailey v. State, 2004 WL 745716, at *5-6 (Del.Super.Ct.) (upholding Board's decision that Claimant was not displaced when he left school in the ninth grade, but had run his own business for ten years, did not have a diminished mental capacity and the State had provided a detailed labor market survey indicating he could perform at least nineteen jobs on the list). He was also being treated for depression. See Lawrence at * 5 (citing Hutchens in order to compare the claimant's mental state to Hutchens' depression, which was pertinent to the question of his displaced worker status). Without more, the Board simply concludes that Sabo had transferable skills, but it offers no supporting facts for this assumption.

Furthermore, while the Board concludes Sabo's cane was not a medical necessity and that he was capable of working while on narcotics, the Court fails to see how this evidence renders him ineligible to be characterized as prima facie displaced. A person who is injured may find it helpful to have the assistance of a cane even though it was not prescribed to him. Sabo testified that he discussed the possibility of using a cane with Dr. Pollen. When asked during his deposition whether Sabo was still dependent on a cane, Dr. Freid replied that he was not safe without a cane. Moreover, the Board, in its previous decision, IAB Hrg. No. 1224442, noted that his doctor had prescribed a walker rather than his cane for occasional use. The Board's finding that the cane was not a medical necessity does not provide any additional logical basis for the conclusion that he was not prima facie displaced, nor was it supported by substantial evidence.

In addition, the Board's conclusion that Sabo's use of legal narcotics should not be a problem was not supported by substantial evidence in the record. It's reliance on the testimony of Gleckner is misplaced. When asked about a company's policy regarding legal narcotics, Gleckner's testimony was riddled with assumptions and uncertainty. See, e.g., Abex Corp. v. Brinkley, 252 A.2d 552 (Del.Super.Ct. 1969) (finding that the employer's employment specialist's testimony was "highly speculative" and was not based on any actual discussions with the employers.) She did not ask any of the employers if the Claimant's use of narcotics would hinder his employment; instead she assumed it would not cause problems:

HEARING OFFICER: And then if you have sufficient proof that it's legal drug use, does it still go back to the employer or does it stop there?

MS. GLECKNER: I don't know.

BOARD MEMBER: When you do your interview for a job placement do you ask if there's a medical examination required or anything?

MS. GLECKNER: Do I ask when I talk to the employers, you mean?

BOARD MEMBER: Yes.

MS. GLECKNER: I assume that they are and most companies these days do ask for, minimally at least a blood test.

BOARD MEMBER: You're saying that most all employers?

MS. GLECKNER: Yes.

BOARD MEMBER: So therefore, what I was getting to that you could guide to potential employer that require a medical exam, etcetera, so that the narcotic question would not be involved, regardless of disclosure or otherwise?

MS. GLECKNER: Well for instance a company like Atlantic Sands may not do a physical, a pre-employment physical, I'm not sure but I just use a general, if that's what you're asking me, generally I assume that that would have to be done.

IAB Hrg. No. 1224442 at 8 (emphasis added).

Whereas the Board has failed to provide coherent reasoning in support of its conclusion, the Court finds Claimant has met his burden of proof that he was prima facie displaced. Normally, at this point in a termination hearing, the burden shifts to the employer to show the Claimant was capable of work; however, the Board did not get to this step in the analysis and the decision must be remanded so that it may properly apportion the burdens.

In this regard, the Court finds the case of Abex Corp. v. Brinkley, 252 A.2d 552 (Del.Super.Ct. 1969) to provide a clear standard as to how an employer must meet its burden of proof when attempting to show there was regular work available within the capabilities of the claimant. As that Court pointed out, "[j]obs must be realistically `within reach' of the disabled person." Id. at 553.

As evidence of Sabo's ability to work, Pestex submitted a labor market survey in which nine positions were identified. Sabo argues that Gleckner did not adequately inquire into the availability of the jobs to him specifically. In addition, he claims that she did not sufficiently make inquiries of the employers' willingness to hire a man who was on a substantial amount of narcotics. He testified that at least one employer on the list told him it could not hire him if he was on narcotics because their insurer would not cover him. As stated above, there is evidence in the record that Gleckner did not contact the employers to inquire into their willingness to hire the Claimant. In Brinkley, the Court found that the employer had failed to sufficiently show available work when it's witness, Thatcher's, testimony was not based on any discussions with possible employers. "Thatcher asserted that he was not testifying as an employer and, in fact, did not know how an employer might react to claimant's situation." Id. at 553-54.

Furthermore, a vocational expert witness should create a market survey which considers accurately an employee's age, education and general background. Other than Gleckner's assumptions about how an employer might react to the Claimant's use of narcotics, her survey was based on inaccurate information about Sabo's ability and condition.³ In the Personal/Vocational Information upon which the survey was based, it is stated, "Mr. Sabo is know to have some computer skills." Tr. Bd. Hr'g, Employer's Ex. 1. The testimony clearly shows, however, that Sabo had negligible, to no computer skills. His computer skills were limited to home use only and he testified that while there was a computer in his home, it was his wife's and he did not even know how to turn it on. Claimant also alleges that Gleckner failed to take into account his pain flare ups and his use of a cane. These factors are also important to an accurate determination of whether there was regular work available that would have been within Sabo's capabilities.

3 Sabo maintains that the labor market survey was fatally flawed because of its reliance on Dr. Crain's diagnosis, which was rejected in a previous hearing as it related to the issue of causation. The Claimant bases this claim on the Board's acceptance, in its June 5, 2003 hearing, of a Dr. Rodger's testimony over that of Dr. Crain's. In that hearing, the disputed issue was whether Sabo's injury were a result of the March 7, 2001 accident. He had also injured his back in 1995. The doctors compared MRI's that had been performed on Sabo in 1996 and in April of 2001. The 1996 MRI evidenced a herniated disk at L4/5, while the 2001 MRI revealed a mild disk bulge at L4/5 and disk protrusion at L5/S1. Moreover, Dr. Rodgers testified that a March 21, 2002 EMG study showed bilateral radiculopathy at L5/S1. The Board accepted the testimony of Dr. Rodgers that the second MRI showed evidence of a new problem caused by the 2001 accident. It determined that the new L5/S1 herniation was related to the 2001 accident.
Dr. Crain believed that the second MRI evidenced disk degeneration, a condition that takes a long time to evolve and could not have developed to this stage in the short time between the 2001 accident and the 2001 MRI. He testified to this effect during the October, 2003 hearing. Gleckner relied upon his diagnosis of degenerative disk disease of the lumbar spine. However, she did not rely upon his discredited opinion that the injury originated in 1995. Dr. Crain's diagnosis of the problem was not disputed by the other doctors, even if the Board did not accept his determination that it resulted from the 1995 injury, not the 2001 injury. Thus, the labor market survey and Gleckner were not in error for their reliance upon the restrictions given by Dr. Crain for the Claimant.

On remand, the Board should address these points as part of its consideration of the issue:

It is not enough to suggest that a man might sell candy in a candy store or operate an elevator or become a watchman and perform any one of a number of light jobs that can be conjured up. There must be a realistic showing, not only that plaintiff could do these jobs but also that there existed a reasonable opportunity for the plaintiff to engage in substantial gainful employment.

Brinkley, 252 A.2d at 554, quoting, Fedor v. Celebrezze, 218 F. Supp. 667 (D.C. Pa. 1963).

3. Claimant's Reliance on his Doctor's Diagnosis

Alternatively, the Claimant argues that he had a right to rely upon Dr. Freid's opinion that he was totally disabled.⁴ He cites Diamond Fuel Oil v. O'Neil, 734 A.2d 1060 (Del. 1999) for the proposition that a physician's testimony should be afforded "substantial weight." He claims that he remains totally disabled under Worker's Compensation Law so long as Dr. Freid finds that Sabo cannot work.

4 Claimant also raises the argument that the Board was wrong to consider the testimony of Dr. Crain in the October hearing, after it had already discredited his testimony in the June hearing. He claims that because of the Board's reliance on Dr. Crain's testimony, its findings lack substantial evidence. Counsel for Plaintiff correctly points out, however, that the two hearings involved distinct issues. See State v. Machin, 642 A.2d 1235, 1239 (Del. 1993) (holding that in order for collateral estoppel to apply, the issue previously decided must be identical to the one presented). The first hearing was held to determine permanency. The second hearing was to ascertain if Sabo was now capable of working, such that his total disability benefits should be terminated. The Board also concluded during the permanency hearing that Sabo's injuries resulted from the second accident. It is true that if, in the termination hearing, the Board had considered Dr. Crain's testimony to the effect that Sabo's injury resulted from the 1995 accident, there may have arisen a res judicata or collateral estoppel issue. See, e.g., Elliott v. Salisbury Coca-Cola, 1996 WL 453340 (Del.Super.Ct.) (remanding Board decision so that it could resolve the permanency issue in light of the fact that the causation issue was res judicata when it had previously been resolved by agreement); Whalen v. State, 1994 WL 636915 (Del.Super.Ct.) (finding the Board erred when it addressed issues surrounding the cause of an injury when the issue had already been determined by a Board-approved settlement agreement). But this was not the case, and this testimony was inapposite to the Board's October decision. As stated before Dr. Crain's diagnosis of degenerative disk disease was valid.

In Gilliard-Belfast v. Wendy's, Inc., 754 A.2d 251, 254 (Del. 2000), the Supreme Court held that "a person who can only resume some form of employment by disobeying the orders of his or her treating physician is totally disabled, at least temporarily, regardless of his or her capabilities." More recently, in Clements v. Diamond State Port Corp., 831 A.2d 870, 879 (Del. 2003), the Court found the Board had erred as a matter of law when it terminated claimant's total disability benefits after finding the employee had improperly relied on his doctor's "no work" order and was therefore not a displaced worker.

The Claimant's general right to rely upon his treating physician's total disability opinion, especially while a Board award or agreement is in effect, means that the Claimant had no obligation to either return to work on a limited basis with the Employer or to look for other employment until the Board makes that determination.

Id.

Here, however, Dr. Freid had released Sabo for light duty work on March 17, 2003. During his deposition, he testified that Sabo was capable of working in a light duty capacity, but Dr. Freid also expressed his opinion that given his physical and educational limitations, Sabo would not be likely to find a job in a competitive market. As Pestex' counsel pointed out in his closing, Dr. Freid is a medical doctor and not a vocational expert.

While the Court agrees that a physician's testimony should be given great weight, Dr. Freid's opinion was one piece of evidence the Board was free to consider when it weighed the facts regarding Sabo's status as a displaced worker. The reasoning of Gilliard-Belfast and Clements is not applicable to this case, however. Dr. Freid had not ordered Sabo not to work and, in fact, did quite the opposite, releasing him to light duty work in March of 2003. There has been no evidence presented that Sabo could have relied on or interpreted the doctor's opinions as a no-work order. The evidence indicates that Dr. Freid expressed his opinion about Sabo's capability to work only when asked during the deposition and had not done so previously. In conclusion, Sabo had no right to rely on opinions expressed by Dr. Freid during deposition testimony about how his disability affected him economically, in a competitive market, when Dr. Freid had already released him to work in a light duty capacity.

CONCLUSION

Considering the foregoing, the decision of the Board is affirmed in part and reversed in part and is otherwise remanded for further findings, consistent with this opinion.

IT IS SO ORDERED.