Submitted: December 12, 2012.
Upon An Appeal from the Decision of the Industrial Accident Board.
Jonathan B. O'Neill, Esquire of Kimmel Carter Roman & Peltz, P.A., Newark, Delaware; attorney for Employee-Appellant.
Nancy Chrissinger Cobb, Esquire of Chrissinger & Baumberger, Wilmington, Delaware; attorney for Employer-Appellee.
WILLIAM L. WITHAM, Jr. Resident Judge.
Whether the Industrial Accident Board's award of temporary partial disability benefits is based upon substantial evidence.
This matter stems from a controverted claim for a work-related injury Claimant Luis Castro ("Claimant") sustained on July 8, 2010, while working as a service technician for Appellee Clean Delaware, L.L.C. ("Clean Delaware"). As stated in an injury report filed on July 9, 2010, Claimant was lifting a propane tank when he felt and heard a pop in his left wrist. Claimant was diagnosed with a fracture of the scaphoid bone,  and was placed on light duty until he underwent surgery on September 22, 2010. After approximately two weeks of no work following the surgery, Claimant again returned to work in a modified, light-duty capacity. A second surgery was performed on February 2, 2011 to correct the non-union of the same fracture. Claimant returned to work several weeks later, but, after five days, his treating physician, Dr. Richard DuShuttle ("Dr. DuShuttle"), indicated that Claimant would need a third surgery and removed him from work. Claimant remained on total disability until March 3, 2011, when Dr. DuShuttle released Claimant to return to work in a light-duty capacity. For those weeks between October 7, 2010, and March 3, 2011, that Claimant received total disability benefits, he received compensation at a rate of $213.33 per week. On August 29, 2011, Clean Delaware filed a petition to terminate Claimant's total disability benefits, alleging that Claimant is capable of returning to work in a modified capacity. On May 4, 2012, the Industrial Accident Board ("the Board" or "IAB") held a hearing to consider Clean Delaware's petition.
At the hearing, Dr. Menachem Meller ("Dr. Meller") testified by deposition on Clean Delaware's behalf. Dr. Meller testified that he examined Claimant on September 7, 2011. Dr. Meller testified that, after reviewing Claimant's relevant medical records, the mechanism of injury, and his own findings from his clinical examination of Claimant, he had diagnosed Claimant with a left wrist sprain or overuse syndrome. Given the nature of the lifting incident and the radiographic findings, Dr. Meller opined that the fracture of the scaphoid bone in Claimant's wrist was most likely a fracture that pre-dated the lifting incident in question. Dr. Meller testified that he believed Claimant embellished his symptoms and compromised his own recovery by smoking and neglecting to use his wrist splint. When asked to opine on Claimant's actual work capabilities, Dr. Meller stated that he believed that Claimant was capable of working full-time with light-duty limitations as to his left arm.
Dr. DuShuttle then testified by deposition on Claimant's behalf. Dr. Shuttle first examined Claimant on July 28, 2010, diagnosing Claimant with a closed navicular fracture of the left wrist. Basing his opinion largely on the history that Claimant gave, as well as his own review of Claimant's records, Dr. DuShuttle opined that Claimant's fracture was an old injury that was asymptomatic prior to the July 8, 2010 accident but which became symptomatic after this accident. Dr. DuShuttle further testified that the scaphoid bone is a sensitive bone with a precarious blood supply rendering its ability to heal unpredictable. When asked about Claimant's present work capabilities, Dr. DuShuttle noted that a third surgery has been scheduled for Claimant after which he will be out of work for three to four weeks. DuShuttle agreed with Dr. Meller that Claimant was capable of returning to work with light-duty restrictions if Claimant chose not to go through with the third surgery.
Claimant testified that he remained in constant pain in the period preceding his third surgery in March 2012, and quantified his pain as a seven and a half or eight on a scale of ten. When questioned by the Board, Claimant testified that he continues to have pain in his left wrist even after the third surgery. He admits, however, that he sometimes drives a car. He denied that he had any pre-existing injury to his left wrist prior to the July 8, 2010, work accident.
Following the hearing, the Board granted Employer's petition to terminate Claimant's total disability benefits, finding that the evidence clearly demonstrated that Claimant has been medically capable of working since March 3, 2011. The Board then found that Claimant is not a prima facie displaced worker because there was nothing to suggest that Claimant's English-language deficits or physical limitations serve as a presumptive barrier to future employment. Finding that Claimant made no effort to undertake a reasonable job search to establish his status as a displaced worker, the Board terminated Claimant's total disability status.
However, based on the testimony of Dr. Meller and Dr. DuShuttle, the Board did conclude that Claimant was entitled to partial disability benefits. In calculating this compensation award, the Court noted that Employer did not furnish a labor market survey, but rather offered to stipulate that Claimant's average weekly wage was $290.00. Satisfied that Claimant could earn no more than the minimum wage of $7.25 an hour, the Board found this valuation to be an appropriate estimation of Claimant's present earning capacity. Applying the formula set ...