STREETS v. TIM O'CONNELL AND SON

Full title: Re: Dale A. Streets, Sr. v. Tim O'Connell and Son, Inc

Court: Superior Court of Delaware

Date published: Jul 21, 2000

C.A. No. 00A-01-012 RRC (Del. Super. Ct. Jul. 21, 2000)

Opinion

C.A. No. 00A-01-012 RRC.

Submitted: May 4, 2000.

Decided: July 21, 2000.

Upon Appeal From a Decision of the Industrial Accident Board. Reversed and Remanded.

Joseph W. Weik, Esquire, Weik, Nitsche Dougherty, One Commerce Center, 1201 N. Orange Street, 3rd Floor, Wilmington, Delaware 19801, Attorney for Employee-Below, Appellant.

Jessica A. Julian, Esquire, Marshall, Dennehey, Warner, Coleman Goggin, 1220 N. Market Street, Suite 202, Wilmington, Delaware 19801, Attorney for Employer-Below, Appellee.

RICHARD R. COOCH, Judge.

Dear Counsel:

Pending before this Court is the appeal of Employee-Appellant Dale A. Streets (Employee) of a January 13, 2000 decision of the Industrial Accident Board (Board) on Employee's Petition for Additional Compensation Due awarding Employee 25 weeks disfigurement for an altered gait. For the reasons set forth below, the Board's decision is REVERSED and REMANDED.

INTRODUCTION

Employee injured his back and legs in a compensable industrial accident on June 2, 1988. Subsequent to the accident, Employee received various benefits pursuant to the Workers' Compensation Statute, Title 19, Chapter 23. Additionally, Employee had presented evidence to the Board in a Petition to Determine Additional Compensation Due and was then awarded 25 weeks disfigurement for an altered gait.¹ Employee has subsequently appealed the decision of the Board.

1 The Board also awarded Employee 39 weeks disfigurement for the low back. However, this appeal is limited to the award for the altered gait.

FACTS AND PROCEDURAL HISTORY

On June 2, 1988, while in the employ of Tim O'Connell and Sons, Inc. (Employer), Employee sustained a compensable industrial accident injuring his back and legs. As a result of the injury, Employee underwent surgery to the back which has resulted in several scars, and, due to paralysis of both of his feet, Employee is required to wear braces and use a cane to help him walk. The parties subsequently entered into agreements for payment of total disability benefits. Under the provisions of 19 Del. C. § 2326, the parties entered into additional agreements acknowledging that Employee, as a result of the accident, had sustained a 93.5% impairment to the lumbar spine, a 50% impairment to the left lower extremity, and a 50% impairment to the right lower extremity. At the Board hearing on January 6, 2000, Employee testified that he is unable to walk without using the leg braces and a cane. Employee further testified that when he walks with the canes and the braces, his shoulders ride up and down and people stare at him and ask what is wrong with him because of the way he walks. The Board noted that his scars are visible when he wears shorts or a bathing suit. Employee demonstrated for the Board that he walks with an altered gait.

In its January 13, 2000 decision granting Employee 25 weeks disfigurement for the altered gait, the Board stated that "[Employee's] altered gait [is] related to the work accident. . . ."² The Board further stated that

2 Bd Dec. at 3.

[Employee's] legs were rigid while walking which caused his shoulders to bob up and down. Otherwise, he appeared to walk at a decent pace with the use of his canes. The Board accepts [Employee's] testimony that the altered gait embarrasses him. Taking these factors into consideration and based on the Board's experience in evaluating such disfigurements, on a scale 0 to 150 weeks, the Board finds [Employee] is entitled to 25 weeks for the disfigurement caused by the altered gait. The Board finds the altered gait affects [Employee's] overall appearance and is a disfigurement to the entire body and not the legs. Therefore no Bagley ³ analysis is required.⁴

3 See discussion of Bagley v. Phoenix Steel Corp., Del. Super., 369 A.2d 1081 (1979) at 4-6, infra.

4 Id at 4.

Employee subsequently appealed the decision of the Board.

STANDARD OF REVIEW

The Supreme Court and this Court repeatedly have emphasized the limited appellate review of factual findings of an administrative agency. The function of the reviewing Court is to determine whether substantial evidence supports the agency's decision.⁵ Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.⁶ This Court, on appeal, does not weigh the evidence, determine questions of credibility, or make its own factual findings.⁷ This Court's duty is limited to determining whether substantial evidence supports the Board's findings of fact and whether errors of law exist⁸ As the Court performs this duty, it views the facts in a light most favorable to the prevailing party below.⁹ Only where there is no satisfactory proof in support of the factual findings of the Board may Superior Court overturn it.¹⁰ Furthermore, this Court will give deference to the expertise of administrative agencies and must affirm the decision of an agency even if the Court might have, in the first instance, reached an opposite conclusion.¹¹

5 Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66-67 (1965); General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960).

6 Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), appeal dismissed, Del. Supr. 515 A.2d 397 (1986).

7 Johnson at 66.

8 19 Del. C. § 3323 (a).

9 See Chudnofsky v. Edwards, Del. Supr., 208 A.2d 516, 518 (1965).

10 Johnson at 66.

11 See 29 Del. C. § 10142 (d); Petty v. University of Delaware, Del. Supr., 450 A.2d 392, 396 (1982); Levitt v. Bouvier, Del. Supr., 287 A.2d 671 (1972).

DISCUSSION Employee contends that (1) the Board "erred as a matter of law in failing to perform the necessary requirements under 19 Del. C. § 2326 (f) as articulated in the case of Bagley v. Phoenix Steel Corp., Del. Super., 369 A.2d 1081 (1979),¹² and (2) the Board's decision is not supported by substantial evidence in the record because the Board "failed to adequately explain and elaborate the appropriate factors it needs to consider in making a disfigurement award."¹³ Employee further contends that Employee's altered gait is a result of his permanent impairment to his lumbar spine and legs and that the Board should have made two computations as required by § 2326(f). Employee points out that although the Board made the first calculation and found that Employee was entitled to 25 weeks of disfigurement based on the scale of 0 to 150 weeks, the Board failed to conduct a second calculation even though the "[Employee's] altered gait was the result of the loss of use of the lumbar spine and both lower extremities."¹⁴ Employee suggests that the Board should have performed a second calculation setting forth the amount of award for disfigurement based on a scale of 0 to 636.6 weeks. This figure, Employee argues, is based upon the 93.5% to the back (93.5% x 300 weeks = 20% = 336.6 weeks) and an additional 150 weeks is added for each leg (50% x 250 weeks = 20% = 150 weeks) thereby making the total loss of use of the back and both legs come to 636.6 weeks.

Employer argues that (1) the Board's decision is free from legal error because no Bagley analysis was required and (2) the Board's decision is supported by substantial evidence in the record. Specifically, Employer argues that the Board determined that Employee's altered gait affected his "overall appearance" and that the Board has "broad discretion in making the subjective disfigurement awards as directed by the statute."¹⁵ Employer further contends that since the Board found that the altered gait changed Employee's "overall appearance" a second computation was not necessary in the award for disfigurement benefits.

15 Employer's Answering Brief at 4.

When dealing with a claim of disfigurement which is linked to a loss of use, the Board is required to engage in calculations as set by 19 Del. C. § 2326 (f) ¹⁶ which provides that

16 Pollard v. The Placers, Inc., Del. Super., C.A. No. 95A-09-021, Cooch, J. (May 20, 1996) (Mem. Op.) at 2 (holding that Board committed legal error by failing to make the necessary computations required by § 2326(f) when dealing with a claim of disfigurement).

[t]he Board shall award proper and equitable compensation for serious and permanent disfigurement to any part of the human body up to 150 weeks provided that such disfigurement is visible and offensive when the body is clothed normally, which shall be paid to the employee at the rate of 66 2/3% of wages. In the event that the nature of the injury causes both disfigurement to and loss or loss of use of the same part of the human body, the maximum compensation payable under this subsection for that part of the body shall be the higher of either (1) the amount of compensation found to be due for disfigurement without regard to compensation for the loss of or loss of use, or (2) the amount of compensation due for loss of or loss of use plus 20% thereof for disfigurement.

The Board must, under § 2326(f), engage in two alternative computations known as the Bagley analysis: first, the Board must compute a possible award on a scale of 0 to 150 weeks (by choosing a number of weeks from the scale and then multiplying same by the claimant's weekly compensation); second, the Board must then compute a possible award on a scale between 0 and 120% of the disability award (by choosing the number of weeks from this second scale and then multiplying same by the claimants weekly compensation). The Board then shall award the greater of the two computations.¹⁷

17 Bagley, 369 A.2d at 1083-1084; see 19 Del. C. § 2326 (g).

When the Board makes an award of a number of weeks without engaging in the statutorily required calculations, this Court cannot determine the basis for that award and therefore must remand the case to the Board for further findings consistent with § 2326(f).¹⁸ "When dealing with a claim of disfigurement, the Board is required to engage in certain calculations set by statute."¹⁹ This Court does not accept the Board's finding and the Employer's argument that the altered gait only affected Employee's "overall appearance." This Court finds that Employee's altered gait was related essentially to his leg disfigurement and is incidental to the whole body. Therefore, when the Board addressed Employee's altered gait in the context of a claim of disfigurement, the Bagley analysis should have been performed.

18 See Pollard, supra n. 16; see also Bordley v. Mid-Del Employment, Del. Super., C.A. No. 94A-06-002, Terry, J., (Feb. 13, 1995) (Letter Op.) (holding that Board's award of 40 weeks for disfigurement appeared "arbitrary" and must be remanded where there were no calculations, and therefore, no way for the Court to determine the proper amount to be awarded).

19 Pollard, supra n. 16 at 2; see Bagley, 369 A.2d at 1083; see also Hackett v. James River Corp., C.A. No. 97A-09-009, Toliver, J. (May 22, 1998) (holding that the Board's award of $266.00 for disfigurement was based on only the first method of calculating the benefits due under § 2326(f) and must be remanded for the Board to complete the necessary calculations and provide a clear explanation of how it was reached).

The Board stated in its decision that no Bagley analysis was required. This Court finds that the Board did not make the two statutorily required calculations. The failure of the Board to engage in the Bagley analysis and make the two statutorily required calculations was legal error and requires remand.²⁰

20 This Court does not reach whether the Board's decision was supported by substantial evidence in the record. However, the Board should on remand sufficiently consider the factors used to determine disfigurement espoused in Colonial Chevrolet, Inc. v. Conway, Del. Super., C.A. No. 79A-FE-13, Longobardi, J. (Apr. 28, 1980) (Mem. Op.).

CONCLUSION

For the reasons stated, the decision of the Board is REVERSED and REMANDED for further proceedings consistent with this opinion.

IT IS SO ORDERED.