Opinion
C.A. No. 06A-08-001-RFS.
July 23, 2007.
R. Stokes Nolte, Esquire, Nolte Associates, Wilmington, DE.
Mary E. Sherlock, Esquire, Dover, DE.
Dear Counsel:
I understand that Ms. Sherlock now represents the claimant. A question on the appeal 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 because her wages were lower than what was reported in the labor market survey.
Because of time constraints, the initial hearing held on March 27, 2006 had to be adjourned until May 31, 2006. In May, the claimant attempted to introduce testimony from Mr. Michael Owens who operated a construction company and was contacted by claimant for a position.
The subject of her job search is relevant to shed light on post injury earning power like the labor market study introduced by the employer. The Board accepted that survey which showed claimant could be employed at higher wages and, therefore, the award of benefits was less.
One of the issues in dispute is whether claimant's former employer undercut her efforts to find a position. If so, her job search and the labor market survey may be seen in a different context.
However, the Board did not evaluate Owen's testim ony. Rather, it refused to consider it. The Board's position can be ascertained through the following exchange:
Hearing Officer: The Board is not going to allow Mr. Owens to testify. If this hearing had taken place all in one day he wouldn't have been called as a witness to begin with and it's not fair to the Employer to do that just because of timings sake if this hearing had been scheduled originally at 9:00 in the morning you would have finished in one day. And so it's not proper to have Mr. Owens testify.
Mr. Schmittinger: Okay, understanding the Board's ruling may I make a proffer for purposes of the record as to the substance of his expected testim ony.
Hearing Officer: No, because we're not going to hear his testimony so there's no reason to hear what he said.
Board Member: And we're not going to give it the weight that you'd like us to give it.
Mr. Schmittinger: No. I certainly understand that it's just a matter of documenting for the record what the expected testimony would have been that it's a proffer for completeness of the record rather than for the Board to actually consider. But I understand the Board's ruling. (Tr. 127-128)
Later, claimant attempted to introduce Mr. Owen's Reference Check for a reported conversation on March 28, 2006, but the Board would not accept it. At that time, the transcript reveals: "Mr. Schmittinger: May I have it marked for identification? Hearing Officer: Yes, mark it for identification purposes only." (Tr. 141)
However, the document was not part of the record. For that reason, the Court asked counsel to supply the document and asked whether the reported information would be equivalent to the proffer. Counsel were not able to reach an agreement on the proffer but they agree the attached Reference Check was the document marked for identification.
The Reference Check appears to reflect an interview between Mr. Owens and claimant's former employer. It occurred on March 28, 2006 and, consequently, testimony about it could not have been presented at the first hearing.
To permit appellate review, the case is remanded to the Board to complete the record. 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 market 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.
Thereafter, a decision can be made accepting the principle that the Board's jurisdiction cannot remedy alleged workplace wrongs which may be addressed through civil litigation.
Jurisdiction is retained, and the Board shall return the case by November 1, 2007.
IT IS SO ORDERED.