Opinion
C.A. No. 99A-04-015 WCC.
Submitted: September 16, 1999.
Decided: February 29, 2000.
Appeal from Decision of Industrial Accident Board — AFFIRMED
Joseph J. Rhoades, Esquire, and W. Christopher Componovo, Esquire; Attorneys for Employee-Appellant.
Robert W. Ralston, Esquire; Attorney for Employer-Appellee.
ORDER
This 29th day of February, 2000, after considering Nicolasa Miranda's ("Employee") appeal from the Industrial Accident Board's (the "Board") decision, it appears that:
1. On March 11, 1992, the Employee sustained a work-related injury while working as a silver polisher at the DuPont Country Club ("DuPont"). She developed both left and right carpal tunnel syndrome and had releases performed in December 1992 and February 1993. She received compensation and has remained unemployed since that time.
Employees of the DuPont Country Club are considered employees of the parent company, E.I. duPont De Nemours Co, ("Employer").
2. E.I. duPont De Nemours Co. ("Employer") filed a petition to terminate total disability benefits, and the Board held a hearing on March 18, 1999. The medical aspect was undisputed. Both parties' doctors, Dr. Norman Eckbold and Dr. Sternberg, agreed that the Employee was capable of full-time work but was restricted from overhead lifting. In addition, the Employee's treating doctor, Dr. Steinberg, believed that the Employee should not lift more than 20 pounds at any time. Because the parties did not dispute that the Employee was capable of full-time work with certain restrictions, the issue before the Board was whether the Employee, who is a non-English speaking native of Puerto Rico with minimal formal education, was a displaced worker.
See supra note 1.
3. Nancy Hawkinson, a vocational rehabilitation expert, performed a labor market survey on Employer's behalf. She contacted employers, discussed the Employee's limitations, including her physical limitations and language barrier, asked if they would accommodate them, and personally visited the job sites. Then, she prepared job descriptions and gave them to the doctors for approval. The labor market survey identified six positions available within the Employee's area and restrictions, four of which were approved by both doctors. The four jobs consisted of a packer position for Omni Services, a coin wrapper position for Delaware Park, a customer service position for Shop-Rite, and a grinder position for JA Grinding. Ms. Hawkinson admitted that the jobs involved repetitive tasks, which were similar to the ones at DuPont. Addressing the non-English speaking issue, she stated that all the jobs had on-the-job training, and while an interpreter would be needed to initially instruct the Employee on the tasks, there would be no or minimal communication or interaction with the public and co-employees after that point. While placement admittedly would be harder due to the Employee's limitations, Ms. Hawkinson also testified that the Employee's level of education was not an impediment to any of the jobs due to their entry-level status.
But, Ms. Hawkinson did not inform the employers of the Employee's specific age and education.
One of the other two positions was a part-time position for Pet Kare. While it was approved, both doctors agreed that the Employee was capable of full-time employment.
This job would not involve speaking to the public. Instead, she would be responsible for bagging, picking up carts and cleaning up spills.
For the Shop-Rite position, Ms. Hawkinson stated that if a spill needed to be communicated to the Employee, they could use nonverbal ways such as colors.
in addition, she testified that the Employee scored low on reasoning, math and language development when a transferable skills analysis form was completed. On a scale of 1 to 6 with 1 being the lowest, the Employee's results were 2 for reasoning, 1 for math, and 1 for language.
The Employee's witness, Tom Dimeo, a vocational consultant, performed a vocational evaluation and met with the Employee twice. While he found that no job was readily available for her in the general labor market, he stated that there may be a job available if all her limitations were addressed. He also believed that the language barrier caused more difficulty in placing her than an average person with physical limitations, and that when he contacted the employers listed on Ms. Hawkinson's survey, he found that some English was needed for each job. He did not perform an independent job search since his only requested function was to assess the situation outlined by Ms. Hawkinson.
He utilized a generalized computer program, a Department of Labor handbook, and his own job bank in making his assessment.
The Employee testified with the assistance of an interpreter. She is a 48-year-old native of Puerto Rico, who speaks no English. She only completed part of the seventh grade, and prior to DuPont, her work experience consisted of working in a handkerchief factory in Puerto Rico and taking care of her five children. With the help of a government agency, she got a job at DuPont and worked there for five years prior to her injury in 1992. In her recent search for a job, she contacted the six employers listed on Ms. Hawkinson's survey with the assistance of a friend and was unsuccessful in obtaining employment. In addition, she contacted Sears, the Latin Community Center, which required her to lift pots and pans, and a factory, which was not identified during testimony, and was also unable to obtain employment. She further admitted that she wanted a job paying the same as the one at DuPont and that she began looking for jobs at the end of 1998, which was shortly before a scheduled Board hearing.
She lived in Puerto Rico until she was 26-years-old.
4. After evaluating the testimony, the Board found that the Employee was not a displaced worker, and as a consequence, it terminated her total disability benefits but awarded her partial disability benefits and attorney's fees under 19 Del. C. § 2320 (g)(2). Consequently, the Employee appealed the Board's decision, arguing that it was not supported by substantial evidence.
Due to a decrease in earning capacity, the Board found that partial disability benefits were warranted.
5. This Court's standard of review for an appeal from a Board decision is to determine whether there was substantial evidence to support the Board's findings and conclusions. The Court does not sit as trier of fact with authority to weigh evidence, determine questions of credibility, nor make its own factual findings and conclusions. Weighing the evidence and determining questions of credibility, which are implicit in factual findings, are functions reserved exclusively for the Board. In the instant case, the Court must affirm the Board's findings if there is substantial evidence on the record establishing that the Employee is not prima fade displaced and that the Employee's job search was unreasonable.
DiSabatino Bros. Inc. v. Wortman, Del. Supr., 453 A.2d 102 (1982).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64 (1965).
Breeding v. Contractors-One-Inc., Del. Supr., 549 A.2d 1102, 1106 (1988), Conner v. Wells Fargo, Del. Super., C.A. No. 92A-11-006, Goldstein, J. (Oct. 4, 1994)(ORDER).
Guffey v. Perdue Farms, Inc., Del. Super., C.A. No. 94A-09-004, Graves, J. (Apr. 18, 1995) (Mem. Op.).
6. Before turning to the merits of the appeal, it is first important to understand the displaced worker doctrine and the parties' respective burdens. This doctrine permits a claimant to collect total disability even though she may have physically recovered sufficiently to return to the work force but is now unable to secure employment because of the injury.
Id. (citing MA. Hartnett, Inc. v. Coleman, Del. Supr., 226 A.2d 910 (1967)).
After filing a petition to terminate the employee's total disability benefits, the employer bears the initial burden of demonstrating that the employee was no longer totally incapacitated from working. If the employer satisfies that burden, then the employee has to show that she is a "displaced worker." A worker is displaced if she "is so handicapped by a compensable injury that [s]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 [s]he is to be steadily employed." The employee's "physical impairment, coupled with other factors such as the injured employee's mental capacity, education, training, or age' may constitute a prima facie showing that the employee is displaced." Further, even if the employee is unable to sufficiently establish that she is prima facie displaced, the employee will be considered a displaced worker if she shows that she "has made reasonable efforts to secure suitable employment which have been unsuccessful because of the injury." If shown, the burden shifts back to the employer to show the availability of work within the employee's capabilities. This particular burden is met upon a showing that work generally exists within the employee's specific restrictions. The employer need not show that someone has actually agreed to hire the employee, but merely that regular employment opportunities exist.
See Torres v. Allen Family Foods, Del. Supr., 672 A.2d 26, 30 (1995)( citing Governor Bacon Health Ctr. v. Noll, Del. Super., 315 A.2d 601, 603 (1974)).
Torres, 672 A.2d at 30.
Id. ( quoting Ham v. Chrysler Corp., Del. Supr., 231 A.2d 258. 261 (1967)).
Torres, 672 A.2d at 30 ( quoting Franklin Fabricators v. Irwin, Del. Supr., 306 A.2d 734, 737 (1973)).
Torres, 672 A.2d at 30 ( quoting Franklin Fabricators, 306 A.2d at 737).
Torres, 672 A.2d at 30 ( citing Franklin Fabricators, 306 A.2d at 737).
Guffey at 5.
Id.
7. In the instant case, Employer satisfied its initial burden of showing that the Employee was no longer totally incapacitated from working because both parties' doctors agreed that she could work full-time with certain restrictions. As such, the burden shifted to the Employee to show that she was displaced, and the Board found:
that Claimant is not a displaced worker. A displaced worker is one who "while not completely incapacitated for work, is so handicapped by a compensable injury that [s]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 [s]he is to be steadily employed." Claimant argues given her age, education, vocational experience, language difficulties, and her physical limitations, she is prima facie a displaced worker. The evidence, however, showed Claimant was able to secure a job with the DuPont Country Club and work there for five years without a problem. In fact Claimant testified that she was a good worker and was never reprimanded. The only difference at this time is that Claimant has some restrictions on her physical activities. In light of the above, the Board finds Claimant is not prima facie a displaced worker.
(Bd. Dec. at 5.) (citations omitted)
The Employee argues that the Board failed to appropriately consider the factors provided in Franklin Fabricators v. Irwin in determining displacement. The Court disagrees. While the Board did not detail the factors in its findings and conclusions and clearly could have done a better job in setting forth its reasoning in this area, it did reference the Employee's age, training, education, and mental capacity in the summary of evidence. In addition, even in its findings, the Board acknowledged that the Employee argued that her age, education, vocational experience, language difficulties and physical limitations proved her prima facie displaced worker status. As such, the Court believes that the factors relevant to the displacement issue were adequately considered.
See supra note 19 and accompanying text.
In the Board's Summary of Evidence, it stated:
Claimant testified that she is forty-eight years old and was born in Puerto Rico. Claimant left school during the seventh grade to have children. She worked in Puerto Rico on the assembly line in a handkerchief factory. Spanish is her native language. She lived in Puerto Rico for twenty-six years. Claimant attempted to take an English language course at the Latin Community Center but it did not work out.
(Bd. Dec. at 3.)
In the Summary of Evidence, the Board stated "[o]n cross-examination Ms. Hawkinson agreed that Claimant had very little transferable skills." (Bd. Dec. at 3.)
But, the Court is concerned by the Board's reference to the prior DuPont employment as justification to support a conclusion that the Employee is not displaced. It does not logically follow that merely because one was hired previously for a certain position, one is in the same employment position twelve years later. It is particularly unfair for a Board to use the job upon which one was injured and which now no longer exists, to find that an individual is not displaced. If the Board consistently followed this illogical path, no one would ever be displaced. But, in fairness to the Board, it is also clear that it intended by reference to the prior employment to emphasize that the Employee's circumstances have not significantly changed since the injury. Her skill, training, education, language difficulties are the same and the residual effects of the injury are minimal. As such, in her unique circumstances, the employment opportunities have not dramatically changed. The Court finds that the record before the Board supports this conclusion, and by any reasonable definition, she is not prima fade a displaced worker.
See Keith v. Dover City Cab Co., Del. Super., 427 A.2d 896 (1981) (holding that limited circumstances exist when, in the absence of expressed findings, this Court can infer the underlying findings utilized by the Board to reach its conclusions). Cf. Wyatt v. State, Del. Super., C.A. No. 97A-05-004, Ridgely, J. (March 27, 1998)(ORDER).
8. Alternatively, the Employee argues that despite the Board's finding that she was not a prima facie displaced worker, the evidence shows that she made reasonable efforts to secure employment. She asserts that her search included not only the six employers listed on the survey but also extended to others, such as Sears, the Latin Community Center, a factory and even DuPont. In addition, the Employee notes that her motivation in making job inquiries was irrelevant.
As noted earlier, if the Board found that the worker was not prima facie displaced, then the burden rests on the worker to show that she "has made reasonable efforts to secure suitable employment which have been unsuccessful because of the injury." After evaluating the Employee's testimony and demeanor, the Board primarily found her efforts unreasonable due to when and how often she looked for a job. The Board found the Employee's motive questionable because her efforts to find a job were concentrated to the period before a scheduled Board hearing, and the Board did not believe that applying for six to seven jobs over a period of five years was reasonable. The Board determines credibility and the amount of weight that it wishes to place on a witness's testimony. The Employee's motive in finding a job can be helpful in determining whether her efforts were reasonable and can shed light on her sincerity and credibility. "The test of [Employee's] good faith effort to find employment involves an evaluation of [her] sincerity and credibility, and the Board's judgment is entitled to deference."
Torres, 672 A.2d at 30 ( quoting Franklin Fabricators, 306 A.2d at 737).
Adams v. NKS Distributors, Del. Super., C.A. No. 96A-07-002, Cooch, J. (Jan. 6, 1997)(ORDER)( quoting Howard v. York Roofing, Inc., Del. Super., C.A. No. 83A-DE-1, Ridgely, J. (Mar. 11, 1985), Letter Op. at 7, aff'd, Del. Supr., No. 110, 1985, Moore, J. (Aug. 22, 1985)(Order)).
The Court finds no error in the Board's reasoning and also finds that substantial evidence exists to support the conclusion that the Employee did not make reasonable efforts in securing suitable employment because she only looked for a half a dozen jobs over a period of several years and the attempt to find a job appeared to be in anticipation of a scheduled Board hearing. The Court further notes that it was critical that the Employee establish that the difficulty in securing a job was associated with the effects of the injury. While the Court sympathizes with the Employee, it was her limited education and language difficulty that prevented employment, not her injury.
9. Finally, the Employee argues that the Board's reliance on Ms. Hawkinson's testimony was misplaced. While it appears to the Court that Ms. Hawkinson's testimony was thorough and professional, it became surplusage once the Board found that the Employee had failed to meet her burden of establishing displacement. As such, the Court finds this final argument without merit and moot.
The Employee's other remaining arguments are also considered without merit.
10. For the reasons set forth above, the Court AFFIRMS the Board's decision to terminate the Employee's total disability benefits and award her partial benefits.
IT IS SO ORDERED.
Judge William C. Carpenter, Jr.