Opinion
C.A. No. 06A-08-001-RFS.
Submitted: November 9, 2007.
Decided: January 31, 2008.
Upon Appeal of the Industrial Accident Board. Affirmed.
Mary E. Sherlock, Esquire, Mary E. Sherlock, P.A., Dover, Delaware, Attorney for Claimant/Appellant.
R. Stokes Nolte, Esquire, Nolte Associates, Wilmington, Delaware, Attorney for Employer/Appellee.
MEMORANDUM OPINION
This is my decision regarding Connie Franklin Horne's ("Claimant") appeal of the Industrial Accident Board's ("the Board") decision dated July 6, 2006, regarding the calculation of temporary partial disability benefits. For the following reasons, the Board `s decision is affirmed.
STATEMENT OF THE CASE
Claimant's injuries occurred while she was working as a Housekeeping Director at Genesis Healthcare ("Genesis"). On April 15, 2004, Claimant injured her knee when she was moving a television set with a co-worker. Subsequently, on April 29, 2004, she injured her low back and felt pain in her right leg when she was moving table s with another worker. Both injuries were acknowledged as compensable.
Franklin-Horne v. Genesis Healthcare, IAB Hearing Nos. 1252327 1255840, at 2 (July 6, 2006).
Id.
After Claimant's low back surgery in June, 2005, she began to receive compensation for total disability. On November 18, 2005, Genesis filed a Petition to Terminate Benefits alleging that Claimant was no longer totally disabled. Claimant acknowledged that she was no longer totally disabled. However, she felt entitled to partial disability benefits. On December 1, 2005, Claimant filed a Petition to Determine Additional Compensation Due. Claimant sought payment of medical expenses related to her left knee injury after a fall in October 2005. She argued that the 2005 fall was related to the 2004 left knee injury; therefore, the knee surgery was compensable.
On March 27, 2006, an evidentiary hearing was held on these petitions but it could not be completed. Additional testimony and argument was taken on May 31, 2006. At the second hearing, Claimant sought to present testimony of a potential employer, Michael Owens, concerning Claimant's job search efforts. Mr. Owens was not listed on the pretrial memorandum before the hearing on March 27, and his information became known later. Nevertheless, the Board refused to hear Mr. Owens because "it was unfair to the employer for a new witness to be presented merely because of a delay caused by a scheduling problem."
Franklin-Horne v. Genesis Healthcare, IAB Hearing No. 1255840, at 122-128 (May 31, 2006).
On July 6, 2006, the Board terminated total disability compensation. It found that Claimant's partial disability rate should be $47.47 per week. Its finding was based on a labor market survey ("LMS"). The Board declined to rely on Claimant's actual wages received in her job at that time to determine post-injury earning power. Claimant worked as a receptionist in her former lawyer's firm of Schmittinger Rodriguez to fill in for someone who was on maternity leave, earning $300 per w eek. A partial disability award using that figure from her pre-injury salary of $300 would have resulted in a weekly rate of $85.07. The difference amounts to $11,250.00 over 300 weeks of compensation allowed by statute .
Franklin-Horne v. Genesis Healthcare, IAB Hearing Nos. 1252327 1255840, at 29 (July 6, 2006).
Thereafter, Claimant appealed the Board's decision to Superior Court. On July 23, 2007, the Court remanded this matter to complete the record about Mr. Owens' proffered testimony and stated:
The Board shall consider the proffer and decide if this would be like newly discovered evidence that should have been admitted. Further, the Board is asked to provide an analysis of how it views the credibility of claimant's job search and the labor mark et study with the details provided by the proffer. Presently, this is unknown territory, and the circumstances may, or may not, affect the respective burdens of proof.
Horne v. Genesis Healthcare, 2007 WL 2105941 at *2 (Del.Super. July 23, 2007) (ORDER). Despite a heavy schedule, the Board returned the case in a timely fashion.
On September 4, 2007, pursuant to the letter order of July 23, 2007, a remand hearing was held before the Board. The Board decide d that the proferred evidence should have been admitted at the May 31, 2006, hearing. The Board found that Mr. Owens' testimony concerned an event that happened after the first part of the hearing on March 27, 2006; therefore, he could not possibly have been called as a witness before then. The Board considered Mr. Owens' testimony to determine if it would result in any alteration of the Board's July 2006 decision.
Franklin-Horne v. Genesis Healthcare, IAB Remand Hearing No. 1252327, at 7 (October 5, 2007).
Id.
Mr. Owens testified that he interviewed Claimant to be a receptionist or bookkeeper. The position would have been to keep the books, operate a computer and answer the phone and take messages. He also called Ms. Eileen Hanhauser, the Executive Director of Genesis, to run a reference check on Claimant after the interview. Mr. Owens and Ms. Hanhauser's testimony disagreed on whether or not Ms. Hanhauser condemned Claimant's work performance.
Id. at 4.
Id. at 5-9.
Ultimately, the Board accepted Ms. Hanhauser's evidence that she did not disparage Claimant in any way. This subject was regulated by company policy which only allowed disclosure of the beg inning and en d dates of employment in these circumstances . The Board believed Ms. Hanhauser followed this personnel rule. Mr. Owens acknowledged that Ms. Hanhauser re fused to answer certain questions . The Board felt Ms. Hanhauser was not haphazard in her adherence to the policy. After sizing up the witnesses, the Board found Mr. Owens assumed Genesis had a negative opinion because Ms. Hanhauser was discrete.
As requested, the Board analyzed how Mr. Owens' evidence affected the credibility of Claimant's job search and the LMS. It determine d that the possible position with Mr. Owens' company was not a truly viable job or fair indicator of her earning capacity. Therefore, Mr. Owens' evidence did not affect its previous decision that the higher wage levels of the LMS should prevail over Claimant's lower earnings. The Board found that Mr. Owens never asked why Ms. Hanhauser could not tell him about Claimant's reason for leaving, nor did h e run additional reference checks after his talk with M s. Hanhauser. Also, he never advertised the position as op en. The job itself was not filled at the time of the remand hearing, over a year and one half after Mr. Owens interviewed Claimant.
IAB Remand Hearing, at 9.
The appeal is limited to the Board's calculation o f Claimant's partial disability benefits at the rate of $47.47 rather than $85.07 per week as the medical expenses are no longer in contention. The central question concerns whether claimant's salary with Schmittinger Rodriguez was the best evidence of post-injury earning power for temporary disability benefit purposes. If so, then the award would be higher, at $85.07, because her w ages at the firm w ere lower than w hat was reported available in the LMS. Potentially, the validity of the LMS might be questioned if Genesis undercut Claim ant's job search so that no jobs w ere available to her.
Claimant's pre-work accident wage was $427.60 per week. Her weekly wage at Schmittinger Rodriguez was $300. Multiplying the difference of $127.60 by the compensation rate of 66 2/3% yields $85.07. If her earning capacity was $356.40, based on the LMS, then the figure of $71.20 would be multiplied by 66 2/3%, giving the result of $47.47 used by the Board.
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 appellate Court is to determine whether the agency's decision is supported by substantial evidence and free of legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence is "more than a scintilla, but less than a preponderance." The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. It merely determines if the evidence is legally adequate to support the agency's factual findings.
Alfree v. Johnson Controls, 1997 Del. Super. Lexis 474 at *14 (Del.Super. Sept. 12, 1997) (citing General Motors v. Freeman, 164 A.2d 686 (Del. 1960)).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994).
Olney v. Cooch, 425 A.2d 610, 614 (Del.Super. 1981).
Johnson v. Chrysler Corp., 312 A.2d 64, 66 (Del. 1965).
29 Del.C. § 10142(d).
DISCUSSION
Did the Board err as a matter of law in its calculation of partial disability compensation pursuant to 19 Del. C. § 2325, and is its decision supported by substantial evidence? After re view, I find that its decision after remand is well-reasoned and correct.Claimant argues that the salary received at her current job was the best evidence of her earning power. Genesis supports the Board's position, which relied on the jobs identified in the LMS. Claimant asserts that the Board erred in its decision because the LMS is flawed, and, consequently, it cannot qualify as substantial evidence. Partial disability is defined as the "period of time in which an injured employee suffers a partial loss of w ages as a result o f his injury." Title of the Delaware Code states that the extent of partial disability is the difference between pre-injury wages and post-injury earning power. Earning power is a function of the employee's "age, education, general background, occupational and general experience, the nature of the work perform able with the physical impairment, the availability of such work and so on."fn19 The term "earning power" is not synonymous with actual earnings or wages received, but rather with one's ability to earn. An employee's post-injury wages is evidence of current earning capacity and creates a p resumption that such w ages are an accurate reflection of the employee's earning power. However, this presumption may be rebutted by showing that the post-injury compensation is an unfair criterion of the employee's earning power.
Globe Union, Inc. v. Baker, 310 A.2d 883, 887 (Del. 1973).
Chrysler Corp. v. Williams, 282 A.2d 629, 631 (Del.Super. 1971), aff'd, 293 A.2d 802 (Del. 1972).
19 Del.C. § 2325.
Ruddy v. I.D. Griffith Co., 237 A.2d 700, 703 (Del. 1968).
Id. at 703.
The Board, in its initial decision, found that post-injury compensation is an unfair criterion partly because:
[c]laimant's actual wages paid to her by her own attorney do not constitute a fair criterion of her earning power. The law firm has an interest in keeping Claimant's pay low, believing that additional compensation would come her way by virtue of a partial disability award.
IAB Hearing Nos. 1252327 1255840, at 20 (July 6, 2006).
Claimant argues that this point should be disregarded because it is essentially nothing more than speculation. For sure, there is no evidence that her former law firm manipulated Claimant's wages or that her wages were lower than other similarly situated employees. Yet, after review of the whole record, the Board had different evidence upon which to give the LMS persuasive effect and to rebut the presumption.
Claimant argued that the LMS was flawed for several reasons. The labor market expert, Mr. Danny O'Neal, considered only three employers and duplicated jobs to make eleven positions. Claim ant asserted that some positions identified may not be realistically feasible, and the mere acceptance of job applications is not adequate evidence of job availability.
Claimant cites Abex v. Brinkley, 252 A.2d 552 (Del.Super. 1969); Nepi v. County Insulation, IAB Hearing No. 1106424 (June 14, 2001, at 11).
However, the Board could rationally find that the LMS was a better indicator of earning power on the record. M r. O'Neal testified that he verified the positions existed in the market place. He physically inspected job locations to confirm that they were consistent with Claimant's work restrictions. He also explained the challenges presented to find employers who w ere willing to participate:
Franklin-Horne v. Genesis Healthcare, IAB Hearing No. 1252327, at 77-78 (May 31, 2006).
MR. O'NEAL: Because when I spoke with employers the first thing they would say to me, I don't want to talk to you. I don't want to talk to anyone like you. And this market has become very cold an d harsh to vocational counselors trying to conduct job development simply because they know if they talk to us they gonna [sic] be subpoenaed, so therefore the jobs w ere available and they we re well within her restrictions. I could not list them because of that.
IAB Hearing No. 1252327, at 91.
In the LMS, Mr. O'Neal also considered important factors, such as Claimant's previous employment history, education, vocation al training, medical and vocational limitations to match potential employers compatible with Claimant's profile.
Id. at 75.
Moreover, Claimant's reliance on the Superior Court decision of Abex v. Brinkley is misplaced. In Abex, information on generally available jobs in the market place was not germane to a claimant's earning power where the specialist did not talk to potential employers and d id not try to fit employment opportunities with work-related restrictions. Rather the proper focus must be on jobs that are available and reasonably tailored to a claimant's circumstances. Abex is inapposite because "in Abex there was no indicator that a labor mark et survey was conducted." Additionally, "[t]he labor market survey was not required to guarantee that each employer would hire her. It is sufficient for the survey to identify available position s."
Abex v. Brinkley, supra.
Id.
Wyatt-Helie v. Playtex Apparel, 2006 WL 2904459 at *5 (Del.Super. June 15, 2006). In Wyatt, the Board found a labor market survey to be more persuasive than actual wages to calculate partial disability compensation.
Id.
Finally, "[t]he Board has the discretion to accept one opinion over another, if the decision is supported by substantial evidence. The opinion that the Board ultimately adopts will be considered substantial evidence for purposes of appellate review." The Board confirmed its initial decision in its remand hearing that the LMS is a better indicator of earning power after weighing the strength of all the evidence. There is a reasonable basis in the evidence and law to sustain the result.
Id. at *4.
CONCLUSION
Considering the fore going, the Board's decision after remand is affirmed.
IT IS SO ORDERED.