Richard F. Stokes

Dear Counsel:

This is my decision on Leslie Willing's ("Claimant") appeal of the Industrial Accident Board's ("Board") decision granting Midway Slots' ("Employer") Petition for Termination of Total Disability Benefits. The Board's decision is reversed and remanded for the reasons set forth herein.

STATEMENT OF FACTS

Claimant injured her right wrist in a compensable industrial accident on December 30, 2000. Employer conceded that the injury was work related and benefits were paid. The initial diagnosis was persistent right wrist and forearm strain. Claimant returned to work in January of 2001 with light duty work restrictions. In March of 2001, Dr. Phieffer diagnosed Claimant with lateral epicondylitis, medial epicondylitis of the right elbow, resolving right wrist sprain, carpal tunnel syndrome on the right and DeQuervain's syndrome on the right. Claimant underwent carpal tunnel release surgery in April of 2001. On April 16, 2001, Claimant returned to work with restrictions. On June 6, 2001, Claimant visited Dr. Phieffer complaining of right wrist pain and burning and aching in the right hand and fingers. At that time, Claimant was given a return to work note with some restrictions, with a return to full duty on July 2, 2001. Claimant returned to full duty work between July 2, 2001 and July 20, 2001. During this time, Claimant continued to experience symptoms related to her work injury and wore a wrist brace at work.

On July 20, 2001, Claimant tripped over her son at home and injured her right wrist ("the fall"). Claimant went to the emergency room complaining of severe wrist pain. At the hospital, x-rays were performed showing a possible distal radial fracture. The medical records do not show that the existence of a fracture was ever confirmed. Claimant followed up with treatment with Dr. Sternberg. Claimant experienced the same symptoms that she experienced before the fall, but with more pain in her wrist. Dr. Sternberg gave Claimant certain work restrictions. Employer did not allow Claimant to return to work with these restrictions and placed her on leave of absence until September 29, 2001. Claimant returned to work with another employer on October 1, 2001. Claimant was eventually laid off from this position for reasons unrelated to her injuries.

On January 22, 2002, Employer filed a petition to terminate total disability benefits. The Board held a hearing on June 12, 2002, on Employer's petition to terminate total disability benefits. At the hearing, Employer introduced the deposition testimony of Dr. Ger. Dr. Ger examined the Claimant on April 1, 2002 and reviewed her records. Dr. Ger testified that the fall aggravated Claimant's wrist injury. Employer's counsel also conceded that the fall aggravated the work injury. Dr. Ger further testified that it would be possible for such a fall to cause injury independent of any pre-existing injury. Dr. Ger further stated that it would be possible for such a fall to occur without injury. Dr. Ger noted that the distal radius is one or two inches proximal to the carpal tunnel area. Dr. Ger concluded that Claimant's symptoms following the fall were not medically related to her prior work injury. Employer argued that the Claimant was no longer totally disabled and that the supervening fall relieved Employer from any future liability. Thereafter, the Board held that the Claimant was no longer totally disabled, since the July 20th accident was a new supervening injury unrelated to an industrial accident. Claimant appeals this decision.

QUESTIONS PRESENTED

1) Did the Board err as a matter of law in concluding that Claimant's total disability

terminated forever prior to her fall?

2) Does the Board's ruling on the Petition to Terminate Total Disability have a collateral estoppel effect on a subsequent claim alleging a recurrence of the work related injury?

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. 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); Battisa 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

The Board failed to apply the appropriate legal standard in making its determination that Claimant's total disability terminated forever prior to her fall. The Worker's Compensation laws reflect a public policy to compensate employees for injuries "arising out of and in the course of employment." 19 Del. C. § 2301(12). Moreover, this relief is an injured employee's sole remedy for personal injury or death by accident that occurs within the employment relationship. 19 Del. C. § 2304. "While the law is not a general health insurance statute, it should be interpreted liberally to fulfill its intended compensation goal under § 2304." Duvall v. Charles Connell Roofing, 564 A.2d 1132, 1134 (Del. 1989). Thus, before a claimant is entitled to compensation, he or she must show that the injury for which compensation is sought is work related.

It is not a defense that the injury was caused by the negligence of the employee. 19 Del. C. § 2314. However, Section 2324 of Title 19 of the Delaware Code provides that payment of compensation for total disability is not required once the disability ceases. 19 Del. C. § 2324. Thus, the Board may review an award of compensation and terminate the award once the employee's incapacity has ended. 19 Del. C. § 2347.

The employer bears the initial burden of establishing that the employee is no longer incapacitated. Torres v. Allen Family Foods, 672 A.2d 26, 30 (Del. 1996). Thus, the employer must show either the termination of the disability "or that any continued disability was not a result of the accident." Bd. of Pub. Educ. in Wilmington v. Rimlinger, 232 A.2d 98, 101 (Del. 1967). If the employer shows that there is not a causal connection "between [the] present disability and a prior accident, he is entitled to a modification order." Avon Products, Inc. v. Lamparski, 293 A.2d 559, 560 (Del. 1972).

In the present matter, Employer has filed a petition to terminate total disability. Therefore, Employer bears the initial burden to establish that the disability has ceased or that the disability is not a result of the accident. Torres v. Allen Family Foods, 672 A.2d at 30. The sole issue presented is whether Employer met its burden of establishing a termination of total disability.

In this case, it is undisputed that Claimant was initially injured in a compensable industrial accident. As the Board correctly noted, the record reflects that Claimant was released to work and had returned to work prior to her fall. Therefore, Claimant's disability from the industrial accident had ceased prior to the fall. The Board's determination that Claimant's disability terminated prior to her fall is supported by Dr. Phieffer's notation that Claimant was released for work and should return for treatment only as needed. Moreover, Claimant actually returned to work and performed her job without incident for two weeks prior to the fall. In addition, Claimant did not seek treatment for her wrist during this time period. Thus, the Board's conclusion that Claimant's disability terminated prior to her fall is supported by substantial evidence.

However, the Board went on to address the question of whether the subsequent fall resulted in an aggravation or a recurrence of Claimant's injury. Having determined that Employer met its burden of establishing a termination of total disability, the Board did not need to address any potential aggravation or recurrence of Claimant's injury resulting from the fall. The petition presented to the Board was for termination of total disability. Once Employer met its burden of establishing the termination of the disability, the burden shifted to Claimant to establish an aggravation or a recurrence of the injury. Claimant is free to file a claim for additional compensation in the future. Contrary to Claimant's assertion, the present determination does not bar future claims for additional compensation. In this case, the sole question presented to the Board was whether the disability had terminated. Thus, the Board erred in addressing the issue of whether the fall resulted in an aggravation or recurrence of the injury.

Moreover, in making its determination regarding the termination of total disability the Board did not apply the proper legal standard. The Board meshed together the standard used in a Petition to Terminate Total Disability with the standard used in a Petition to Determine Additional Compensation Due. These are two separate standards. The first question and the sole issue presented in this case is whether Employer has met its burden of establishing a termination of the disability. The second question is whether Employee has met her burden to establish that the subsequent injury is a recurrence of the primary industrial injury. However, this issue is not yet before the Board absent a filing of a Petition to Determine Additional Compensation Due. Thus, the issue is remanded to the Board to apply the appropriate legal standard in the present Petition to Terminate Total Disability.

C. Collateral estoppel and res judicata

The Board's ruling that Claimant's total disability terminated prior to the fall does not bar a subsequent action to recover for a recurrence of the work related injury. The doctrine of res judicata bars reconsideration of conclusions of law previously adjudicated. Betts v. Townsends, Inc., 765 A.2d 531, 534 (Del. 2000). The doctrine of res judicata applies if "(1) the court making the prior adjudication had jurisdiction, (2) the parties in the present action are either the same parties or in privity with the parties from the prior adjudication, (3) the cause of action must be the same in both cases or the issues decided in the prior action must be the same as those raised in the present case, (4) the issues in the prior action must be decided adversely to the plaintiff's contentions in the instant case, and (5) the prior adjudication must be final." Bailey v. City of Wilmington, 766 A.2d 477, 481 (Del. 2001).

However, the Industrial Accident Board has statutory authority to review an award "on the ground that the incapacity of the injured employee has subsequently terminated, increased, diminished or recurred." 19 Del. C. § 2347. Thus, the doctrine of res judicata is inapplicable where the Board reviews an award under this section. Betts v. Townsends, Inc., 765 A.2d at 534. In the present matter, a subsequent claim alleging a recurrence of the work related injury would clearly fall under this section. Thus, the action is not barred under the doctrine of res judicata.

"Under the doctrine of collateral estoppel, if a court has decided an issue of fact necessary to its judgment, that decision precludes relitigation of the issue in a suit on a different cause of action involving a party to the first case." Messick v. Star Enterprise, 655 A.2d 1209, 1211 (Del. 1995). In determining whether collateral estoppel bars applies, the court considers whether: "(1) The issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior action, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action." Betts v. Townsends, Inc., 765 A.2d at 535. All of these factors must be satisfied for collateral estoppel to apply. Atkinson v. Del. Curative Workshop, Del. Super., C.A. No. 00A-04-011, Cooch, J. (Jan. 8, 2001) (ORDER).

In this case, the present action is a Petition for Termination of Total Disability as of the date that Claimant returned to work. The issue involved in this case is not identical to a future Petition to Determine Additional Compensation Due based on a recurrence of the injury subsequent to Claimant's return to work. Since the claims are not identical, the Claimant is not estopped from filing a such a claim in the future.

CONCLUSION

The matter is remanded to the Board to apply the appropriate legal standard to Employer's Petition to Terminate Total Disability Benefits. The sole issue before the Board is whether Employer has met their burden of establishing a termination of total disability. However, Claimant is not barred from bringing an action in the future alleging a recurrence of the work related injury. Based on the foregoing, the decision of the Board is reversed and remanded.