Opinion
C.A. No. 03A-06-004 JTV.
Submitted: March 17, 2004.
Decided: June 16, 2004.
Upon Consideration of Appellant's Appeal From Decision of the Industrial Accident Board.
REMANDED.
Walt F. Schmittinger, Esq., Schmittinger Rodriguez, Dover, Delaware. Attorney for Appellant.
Linda L. Wilson, Esq., Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, Delaware. Attorney for Appellee.
ORDER
Upon consideration of the parties' briefs and the record of the case, it appears that:
1. Patricia Wilson ("the claimant") appeals from that portion of a decision of the Industrial Accident Board ("the Board") which denied her petition for partial disability benefits, medical witness fees, and attorney's fees ancillary to partial disability benefits.
2. The essential facts are undisputed. The claimant worked at Playtex Apparel as a utility worker, making $14.49 an hour. On June 25, 2001 she agreed to be bumped to a quality control job at $13.31 an hour because of economic difficulties on the part of the employer. On July 2, 2001, while still working as a utility worker before making the actual move to quality control, she fell and hurt her knee. On July 8, 2001 she moved to the quality control job. On October 17, 2001, the claimant was again bumped, this time to a picker, earning a base salary of $12.77 an hour. This reassignment was also caused by her employer's economic difficulties, not her injury. In addition to her base salary of $12.77 an hour, she was able to earn incentive pay by working beyond her quota.
3. The claimant had not initially sought treatment after hurting her knee on July 2. After she became a picker, however, the symptoms grew worse and in February 2002 she sought treatment. Her doctor, Dr. Manifold, restricted her to light duty work and referred her to another doctor, Dr. Upadhyay, who prescribed medication and physical therapy.
4. There was evidence that the light duty restriction would have prevented the claimant from working as a utility worker, had she still been in that position.
5. The claimant informed the employer of her light duty restriction and was instructed to continue with her picking job for three weeks. She then started working as a picker in "special pack," within her restrictions, putting labels on boxes or taking tags off products. When the claimant started working "special pack," her base pay remained the same at $12.77 an hour, but she experienced a loss in earnings because she was no longer eligible to earn incentive pay. She worked in "special pack" until October 5, 2002, when she was laid off. The employer closed its plant before the end of 2002. Since leaving the employer when the plant closed, the claimant has not searched for a job and is attending school.
6 Dr. Upadhyay testified that the claimant should not work more than 40 hours a week and must alternate between sitting and standing every twenty minutes. Another physician, Dr. Spieker, examined the claimant on behalf of the employer and agreed that the light duty restriction was appropriate. He testified that she can work 40 hours per week in a sedentary capacity, avoiding continuous walking, stair climbing, with no stooping, squatting, or kneeling.
7. The Board held that the evidence failed to establish that the claimant was entitled to partial disability benefits. It reasoned that her reduction in wages from utility worker to quality control worker to picker were all caused by Playtex's financial difficulties, not her injury; that when the light duty restriction was imposed her base hourly wages did not change; that while in the large majority of cases a reduction in wages might create a presumption of a diminished earning capacity, in this case the claimant accepted reduced wages in lieu of being laid off months prior to work restrictions being imposed; that the mere reduction of wages in this case was insufficient to establish a diminished earning capacity attributable to the knee injury; that the claimant has not conducted any job search since leaving Playtex or looked for work within her restrictions; and that she provided no evidence to support her claim apart from her wages at Playtex.
8. The scope of review for appeal of a board decision is limited to examining the record for errors of law and determining whether substantial evidence is present in the record to support the Board's findings of fact and conclusions of law. "Substantial evidence" is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. On appeal, the court does not "weigh the evidence, determine questions of credibility, or make its own factual findings." The court is simply reviewing the case to determine if the evidence is legally adequate to support the agency's factual findings. The court must give "due account of the experience and specialized competence of the Board and of the purposes of our workers' compensation law." When reviewing the Board's findings, the reviewing court should accept those findings, even if acting independently, the reviewing court would reach contrary conclusions. Absent an error of law, the standard of review is abuse of discretion. An abuse of discretion arises only where the Board's decision has "exceeded the bounds of reason in view of the circumstances." Only where no satisfactory proof exists to support the factual finding of the Board may the Superior Court overturn it.
Robinson v. Metal Masters, Inc., 2000 Del. Super. LEXIS 264, Histed v. E.I. DuPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981); Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).
Johnson, 213 A.2d at 66.
ILC of Dover, Inc. v. Kelley, 1999 Del. Super. LEXIS 573, at *3.
Histed, 621 A.2d at 342.
HH Poultry v. Whaley, 408 A.2d 289, 291 (Del. 1979).
Digiacomo v. Board of Public Education, 507 A.2d 542, 546 (Del. 1986).
Floundiotis v. State, 726 A.2d 1196, 1202 (Del. 1999); Lilly v. State, 649 A.2d 1055, 1059 (Del. 1994).
Johnson, 213 A.2d at 64.
9. The claimant contends that her injury rendered her unable to work as a utility worker at $14.49 an hour; that she is now restricted to sedentary work; that her post-injury earning power was reduced to the $12.77 she earned as a picker; that this difference between pre-injury wages and post-injury earning power entitles her to temporary disability benefits; that the Board erred by failing to award her partial disability benefits as of March 10, 2002, the date she began working as a picker in "special pack" within her light duty restrictions; that the Board failed to recognize that her loss in earning ability is the result of her work-related restrictions, rather than Playtex's financial problems; that the Board erred by comparing her base pay as a picker before and after the light duty restriction was imposed, and should, instead, have compared her earning capacity after the light duty restriction was imposed with the $14.49 she was making as a utility worker at the time that her work accident occurred; that her loss of earning capacity is also evidenced by the fact that after the light duty restriction was imposed she was no longer able to earn incentive pay as a picker; that in finding that the claimant's reduction in earnings was due to the financial condition of Playtex, the Board ignored the testimony of Dr. Upadhyay and Dr. Spieker that she is now limited to sedentary work; and the Board erred by failing to find that the claimant has experienced a loss in earning capacity because the nature of the work she is capable of performing is now restricted to sedentary jobs.
10. Where a claimant is partially disabled, he or she is entitled to compensation in the amount of 66 2/3 percent of the difference between "the wages received by the injured employee before the injury and the earning power of the employee thereafter." The earning power of the employee after an accident is not synonymous with the employee's post-injury wages. The amount of an employee's earning power after an injury is not simply a matter of looking at the employee's actual wages, but involves a consideration of such factors as the claimant's age, education, general background, occupational and general experience, the nature of the work that the employee can perform within her restrictions, and the availability of such work.
19 Del. C. § 2325.
Ruddy v. I.D. Griffith Co., 237 A.2d 700 (Del. 1968).
Chrysler Corp. v. Williams, 282 A.2d 629 (Del.Super. 1971), aff'd, 293 A.2d 802 (Del. 1972).
11. The fact that claimant experienced a reduction in wages as described above and is now restricted to sedentary work, while factors to be considered, do not require a finding that she has reduced earning power after the accident (or after being placed on light duty) to the exclusion of other factors. Regardless of whether the claimant's pre-injury wages are taken as $14.49, $13.31, $12.77 per hour plus incentive pay, or simply $12.77 per hour, the picker base wage does not, in and of itself, conclusively establish the claimant's post-accident earning power. That amount simply happened to be the base hourly wage of a job that the claimant was bumped to on her second bump because of the company's financial difficulty. Since the record clearly supports the conclusion that the claimant's wages as a picker came about through the combination of the company's economic adversity and the claimant's understandable desire not to be laid off, there is substantial evidence to support the Board's decision, in effect, that under the circumstances the picker wages are an unreliable basis for estimating the claimant's post-injury earning capacity.
12. The Board also acted properly in taking into account the fact that the claimant made no job search and apparently offered no evidence, apart from her wages at Playtex, as to her earning capacity in the open job market, given her particular skills and training and her restrictions.
12. Accordingly, I find that the Board's decision that the claimant failed to produce sufficient evidence to meet her burden of proving that her knee injury caused a partial disability is supported by substantial evidence and is free of legal error. The portion of the Board's decision which denied the claimant's petition for partial disability and attorney's fees ancillary thereto is affirmed.
13. In another portion of the Board's decision, it awarded the claimant $256.99 in transportation expenses. The claimant contends that she is entitled to an award of medical expert fees because of her success in obtaining the transportation expense award. Playtex indicates in its brief that it does not contest that the medical expert fees should be paid. Therefore, the case is remanded to the Board to determine the appropriate amount of medical expert fees which Playtex agrees should be paid.