Opinion
C.A. No. N10A-05-013 CLS.
Submitted: January 3, 2011.
Decided: April 27, 2011.
On Appeal from the Industrial Accident Board.
REVERSED and REMANDED.Michael B. Galbraith, Esq., 1300 N. Grant Avenue, Suite 101, P.O. Box 2324, Wilmington, DE 19899. Attorney for Appellant.
Natalie L. Palladino, Esq., 750 Shipyard Drive, Suite 400, P.O. Box 2092, Wilmington, DE 19899. Attorney for Appellee.
ORDER
Introduction
Before this Court is the Appellant's appeal from the decision of the Industrial Accident Board. The Court has reviewed the parties' submission. For the reasons that follow, the decision of the Industrial Accident Board is reversed and remanded.
Background
On November 4, 2004, Robert Bruce ("Appellant") fell and twisted his right knee while working the sub-assembly line for Chrysler Group, LLC ("Appellee"). Appellant worked for Appellee for almost twenty-five years on the assembly line, sub-assembly line, and as a forklift operator. He spent his last two years as a forklift operator because it was a lighter duty job than the sub-assembly line. His knee injury was the reason he became a forklift operator. Appellant continued to work for Appellee until 2008 when the Delaware plant closed. He sought medical treatment all four years following his knee injury.
Tr. Bruce, IAB Hearing No. 1280351, at 12:4-19, 12:22-23.
Id. at 11:7-14, 22:16-17.
Id. at 13:24-25.
Id. at 14:1-3.
Id. at 13:2-4.
Id. at 13:7-18.
After the accident he continued to work the sub-assembly line for two years off and on. Appellant worked one week on, one week off, until he was able to return to work everyday. Appellant was treated by the company doctor, who recommended anti-inflammatory medication and physical therapy.
Id. at 13:19-22.
Tr. Crain, IAB Hearing No. 1280351, at 4:2-10.
Id. at 3:15-4:1.
Appellant first saw Dr. Crain on June 11, 2007. X-rays taken at that time revealed Appellant's knee was bone-on-bone with a small spur. An MRI also revealed "a tear of the posterior horn in the medial meniscus, with marrow changes on the weight-bearing surface of the medial femoral condyle and tibial plateau." There were also "mild changes in the patellofemoral joint and a small Baker's cyst and joint effusion." Together, the x-rays and MRI indicate Appellant's knee became worse over the two and a half years between the accident and his first visit with Dr. Crain. At that time, Dr. Crain concluded Appellant had osteoarthritis of his right knee and his knee had deteriorated to the point of bone-on-bone. Typically, Dr. Crain would have recommended arthroscopy, but because Appellant's knee was bone-on-bone, arthroscopy would not have helped. Dr. Crain thought Appellant would be a candidate for knee replacement, but he wanted to try conservative treatment first. Still having discomfort in his knee, Appellant began discussing surgical options with Dr. Crain in January and February of 2008. Appellant was considering having the knee replacement surgery in 2008, prior to the plant closing. He continued to have problems with his knee as a forklift operator.
Dr. Crain did not give live testimony at the hearing. His deposition was entered into evidence. All of his testimony is taken from that deposition.
Id. at 3:13-14.
Id. at 5:6-10.
Id. at 5:11-17.
Id. at 5:22-6:2.
Id.
Id. at 7:1-13.
Id.
Id. at 9:22-10:3.
In its brief, Appellee incorrectly contends Appellant did not consult with Dr. Crain about knee replacement surgery until after he retired in December of 2008. However, the evidence makes clear Appellant and Dr. Crain first discussed knee replacement surgery in 2007 and the conversations continued in 2008.
Tr. Crain, IAB Hearing No. 1280351, at 9:22-10:3, 18:5-13.
Tr. Bruce, IAB Hearing No. 1280351, at 15:3-15.
According to Appellant, rumors started circulating that the plant was going to close in 2008 rather than 2009. Based on his seniority, Appellant had the option to relocate or retire. Most likely he would have been able to relocate to one of his top three choices, including New York. Appellant thought about relocating because he needed five more years to receive a full pension. The only reason Appellant gave for not relocating was his knee. It never occurred to him to relocate with the knee problem. If he had relocated, Appellant was not sure his knee would have been fixed, even though he had not specifically asked. Appellant never asked about relocating with his knee problem because the knee was hurting him too much. His first priority was getting his knee replaced. Appellant would have relocated if it was not for the trouble he had with his knee.
Id. at 14:17-20.
Id. at 17:3-8.
Id. at 17:11-16; Tr. Howard-Atley, IAB Hearing No. 1280351, at 28:20-24.
Tr. Bruce, IAB Hearing No. 1280351, 14:24-25.
Id. at 14:25-15:2, 18:3-8.
Id. at 25:25-26:1.
Id. at 24:21-25:11.
Id. at 26:2-8.
Id. at 25:18-21.
Id. at 25:23-24.
The Delaware plant closed on December 23, 2008, which was also Appellant's last day of work. Around the first of the year Appellant decided to have the knee replacement surgery. Appellant was placed on a waiting list and had the operation on April 14, 2009. Appellant contends he wanted to reenter the workforce to supplement his partial pension. He wanted to take care of his knee before he found another job. Appellant did not want to lie to a prospective employer by indicating he was healthy when he knew he needed the knee replacement surgery; it was already scheduled. He did not submit any resumes or job applications between December 23, 2008 and April 14, 2009.
Id. at 18:14-25.
Id. at 19:6-10.
Id. at 19:6-16.
Id. at 20:5-11.
Id. at 20:12-16.
Id. at 24:4-7.
Id. at 23:15-21.
Dr. Crain filled out a Delaware Workers' Compensation Physician's Report of Injury in February of 2009 indicating in the comment section that Appellant had retired. Appellant contends he told Dr. Crain that he was forced to retire and he needed a job to supplement his income. During his testimony, Dr. Crain indicated he knew Appellant was looking for work. When Dr. Crain examined Appellant on October 15, 2009, he noted Appellant "was anxious to try to get back to work and was asking for a release." He gave Dr. Crain "the impression that he was trying to find a job similar to what he used to do [,] operate a forklift." Dr. Crain gave Appellant a full work release on October 15, 2009. Despite the testimony of Dr. Crain, the Industrial Accident Board ("IAB") found the word "retired" to be significant because the comment could have read "out of work pending surgery."
Tr. Crain, IAB Hearing No. 1280351, at 17:1-7.
Tr. Bruce, IAB Hearing No. 1280351, at 14:22-24, 24:13-17.
Tr. Crain, IAB Hearing No. 1280351, at 12:23-24, 16:21-24, 17:21-23.
Id. at 16:21-24.
Id. at 17:21-23.
Tr. Bruce, IAB Hearing No. 21:3-4.
Bruce v. Chrysler Group, LLC, IAB Hearing No. 1280351 (May 3, 2010).
Appellant was disabled from April 14, 2009 to October 15, 2009. He was completely disabled from April 14, 2009 to July 8, 2009, when Dr. Crain released him to perform sedentary work. At that time Dr. Crain did not feel as though Appellant was ready to return to work as a forklift operator because his job was very heavy. He had to jump on and off the forklift and stand on his feet all day. Even though Appellant was permitted to perform sedentary work on July 8, 2009, he had never worked in an office. He intended to find a position as a forklift operator. He did not start looking for a forklift operator position until he was released by Dr. Crain on October 15, 2009. He then applied for several positions between October 15, 2009 and November 20, 2009, the day of the IAB Hearing. He did not find a job prior to the IAB hearing.
Tr. Crain, IAB Hearing No. 1280351, at 13:8-11.
Id. at 11:24-12:1.
Id. at 11:18-23.
Tr. Bruce, IAB Hearing No. 1280351, at 22:3-5.
Id. at 21:24-22:2.
Id. at 21:5-10.
Id. at 20:20-22.
Id. at 21:11-12.
Tanyell Howard-Atley testified at the hearing on behalf of Appellee. She is a disability representative for Appellee. She stated that Appellant had sufficient seniority to be relocated to one of his top choices. Ms. Howard-Atley also stated that Appellant receives a regular service retirement pension. A regular retirement pension has no relationship to Appellant's knee injury. Appellee contends a retirement pension is not the same as a disability pension, but a disability pension was not available. When the plant was closing, employees were only given three options, based on their length of service: (1) voluntary termination of employment, (2) early retirement, or (3) regular retirement if they were employed by Appellee for at least thirty years.
Tr. Howard-Atley, IAB Hearing No. 1280351, at 27:25-28:1.
Id. at 28:20-24.
Id. at 28:25-29:6.
Id. at 28:25-29:6.
Id. at 28:10-19.
On May 3, 2010, the IAB held Appellant was not entitled to workers' compensation wage replacement benefits from April 14, 2009 through October 15, 2009. It found Appellant's retirement was voluntary and not a result of his knee injury, contrary to the evidence presented at the hearing. The IAB was not persuaded by Appellant's testimony that he wanted to work for Appellee for five more years, but found he retired because he did not want to relocate.
Standard of Review
The scope of review of an appeal from the Industrial Accident Board ("IAB"), filed within thirty days, is limited to errors of law and whether the decision is supported by substantial evidence. The Court will not weigh the evidence, determine the credibility of the witnesses, or make its own factual findings and conclusions. Evidence is substantial when a reasonable person would think the evidence presented was adequate to support the conclusion. When the decision is not supported by substantial evidence it must be reversed. When critical issues are overlooked or ignored, remand for further consideration is appropriate. Deference is given to the decision of the IAB. The record is viewed in the light most favorable to the party prevailing below.
29 Del. C. § 10142.
Varga v. Gen. Motors, 996 A.2d 794 (Del. 2010) (TABLE) (citation omitted).
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (1965).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (citation omitted).
Mladenovich v. Chrysler Group, LLC, 2011 WL 379196 (Del. Super. Ct.)
Sharpe v. W.L. Gore Associates, 1998 WL 438796 (Del. Super. Ct.).
29 Del. C. § 10142.
O'Brien v. Unemployment Ins. Appeals Bd., 1993 WL 603363 (Del. Super. Ct.).
Discussion
I. The Industrial Accident Board Erred As A Matter Of Law When It Found Appellant Voluntarily Retired.The evidence presented to the IAB indicates Appellant did not retire in the traditional sense, but rather to have knee surgery to treat his work-related injury. Traditional retirement will prevent an employee from receiving workers' compensation benefits. This is especially true if the employee does not seek work after retirement. If the employee intends to continue working despite retiring from one employer, "the employee can collect partial disability benefits stemming from a pre-retirement industrial accident and simultaneously collect a pension." Duplicative benefits are not precluded by the Workers' Compensation Act. Whether an employee has voluntarily retired from the job market and is able to receive both workers' compensation benefits and pension benefits depends upon "whether the employee was physically capable of working at the previous job, whether the employee sought another job, whether the employee lost earning power due to the injury, [] whether the employee was below the usual age for retirement" and "whether the decision to retire was motivated by the work-related injury." The issue in this case is whether Appellant retired as a result of his work-related injury or for other reasons. The undisputed evidence indicates it was due to his work-related injury.
Chrysler Corp. v. Kaschalk, 1999 WL 458792 (Del. Super. Ct.).
General Motors Corp. v. Willis, 2000 WL 1611067 (Del. Super. Ct.) (citation omitted).
General Motors Corp. v. Willis, 2000 WL 1611067 (Del. Super. Ct.).
Id. at *2.
Mladenovich v. Chrysler Group, LLC, 2011 WL 379196 (Del. Super. Ct.) ( citing Willis, 2000 WL 1611067, at *3).
Id. at *5 ( citing Sharpe, 1998 WL 438796, at *5).
Appellee contends Appellant removed himself from the workforce when he told Dr. Crain he had retired, as noted on the Workers' Compensation Physician's Report. However, in his deposition, Dr. Crain stated Appellant was anxious to return to work and wanted a full work release. Appellant sought a full work release from Dr. Crain, which was given to him on October 15, 2009. If Appellant had intended to retire he would not have sought a full work release and Dr. Crain would not have testified that Appellant was anxious to return to work. Based on the testimonies of Appellant and Dr. Crain, the word "retired" in the comment section of the Workers' Compensation Physician's Report is insufficient to find Appellant voluntarily removed himself from the workforce.
The IAB and Appellee rely on this one comment to indicate Appellant intended to remove himself from the workforce. The comment was written by Dr. Crain, someone who is not law trained and may not know the implications of his comment.
Appellee argues the decision of the IAB was correct in finding Appellant retired for personal reasons not related to his knee injury. There is nothing in the record to suggest Appellant retired for any reason other than his knee injury. Appellant testified "I would have taken the move had I not had trouble with the knee." The testimonies of Dr. Crain and Ms. Howard-Atley do not provide alternate reasons for Appellant's retirement; neither does the Vocational Assessment/Labor Market Survey Report. For the IAB to hold "it was not the knee surgery that caused [Appellant] to choose the early retirement but the reluctance to relocate to New York after spending twenty-five years in one location" was not based on evidence presented at the hearing. The IAB committed an error of law by disregarding the only evidence presented and interjecting its own rationale as to why Appellant chose not to relocate.
Tr. Bruce, IAB Hearing No. 1280351, at 25:23-24.
Bruce v. Chrysler Group, LLC, IAB Hearing No. 1280351 (May 3, 2010).
Appellee also places a significant amount of emphasis on the type of pension received by Appellant, a regular service partial pension. While it is true Appellant is not receiving a disability pension, one was not available to him. Ms. Howard-Atley testified employees had only three options available to them when the Delaware plant was closing: (1) early retirement based on years of service, (2) regular service retirement for those employees working thirty or more years, and (3) voluntary early termination. Appellee misplaces the significance of Appellant not receiving a disability pension since it was not available to him.
Appellee also focuses on the timing of Appellant's job search and his decision not to apply to positions once he was released to perform sedentary work. Appellant has stated his reasons for not seeking employment from December of 2008 through his surgery in April of 2009 relate directly to the scheduled knee surgery. He did not want to tell a prospective employer he was healthy when he knew it was not true. Appellant stopped working the day the plant closed, December 23, 2008. Approximately one week later, around the first of the year, Appellant contacted Dr. Crain to have the knee replacement surgery. Dr. Crain placed Appellant on a waiting list for the surgery. The surgery was performed on April 14, 2009. While it is true that Dr. Crain released Appellant to perform sedentary work, his prior work experience was not sedentary. Appellant wanted to work as a forklift operator. He was not released by Dr. Crain to perform that type of work until October 15, 2009. Between the date of his release and the date of the IAB hearing, November 20, 2009, Appellant applied for approximately five different forklift operator positions; about one per week. The timing of the search indicates Appellant began seeking employment, based on his prior work experience, once he was released by Dr. Crain.
Tr. Crain, IAB Hearing No. 1280351, at 11:18-23 ("I did not believe he was ready to return to work at his regular job. His job was very heavy. He had worked on a forklift, jumping on and off. He was on his feet all day.").
Tr. Bruce, IAB Hearing No. 1280351, at 23:10-14.
Since Appellant retired as a result of his knee injury, on remand the IAB must calculate the appropriate amount of loss wages pursuant to 19 Del. C. §§ 2324 and 2325 using the Vocational Assessment/Labor Market Survey Report.
II. The Decision of the Industrial Accident Board Is Not Supported By Substantial Evidence.
The decision of the IAB is not supported by substantial evidence because there is no evidence to support a finding that Appellant retired for reasons other than his knee injury. When there is conflicting testimony the IAB is entitled to reject the testimony of one of the witnesses. Here, there was no conflicting testimony regarding Appellant's decision not to relocate or look for another position immediately after the plant closed. Appellant's testimony provides the only explanation for his decisions. The additional evidence presented related to his knee injury, knee replacement surgery, the retirement options available to employees, and a market report used to determine lost wages. There was no additional or conflicting evidence presented that would contradict the reasons stated by Appellant. Therefore, the IAB was not free to disregard the undisputed evidence and find Appellant was reluctant to relocate to New York when that evidence was not introduced.
Kaschalk, 1999 WL 458792, at *3.
Conclusion
Based on the forgoing, the decision of the Industrial Accident Board is REVERSED and REMANDED for findings consistent with this opinion.IT IS SO ORDERED.