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Melvin v. Playtex Apparel, Inc.

Superior Court of Delaware, Kent

June 4, 2013

Kathy M. Melvin, Claimant Below,
Playtex Apparel, Inc., Employer Below.

Submitted: March 14, 2013

Upon Appeal of the Decisions of the Industrial Accident Board

Walt F. Schmittinger, Esq. and Kristi N. Vitola, Esq., Schmittinger & Rodriguez, Dover, Delaware for Claimant.

J. R. Julian, Esq., Wilmington, Delaware for Employer.


Robert B. Young Judge.


Kathy M. Melvin ("Claimant") was employed by Playtex Apparel, Inc., ("Playtex") when she sustained a work related injury to her back on September 9, 1983. Melvin's back injury was treated with pain medication and injections. However, she continued to experience pain which eventually led to fusion surgery in the late 1980's. For the next eighteen years, Claimant remained out of the workforce, receiving total disability benefits. In 2001, Playtex filed a Petition seeking to terminate Claimant's total disability benefits, based on the fact that Claimant's doctor believed she could return to the workforce. The Industrial Accident Board (the "Board") agreed, terminating her total disability benefits, finding her able to return to work and strongly suggesting that she do so. The Board, though, ordered that Claimant receive partial disability benefits, which she received until they ran out sometime in late 2006 or early 2007. Claimant never returned to the workforce. In 2008, Claimant underwent an additional back surgery, after which she filed a claim with the Board for medical expenses. That filing also included a request for total disability benefits for the period after the surgery. Following a hearing, the Board found that the 2008 surgery was causally related to the 1983 work injury. It awarded Claimant medical expenses. The Board found Claimant ineligible to receive total disability benefits, as she had voluntarily removed herself from the workforce for reasons unrelated to the work injury. Claimant has appealed the portion of the Board's decision regarding eligibility for total disability benefits. Playtex has appealed the portion of the Board's decision which found the 2008 surgery causally related to Claimant's 1983 injury. After review, the Court finds both aspects of the Board's decision to be based on substantial evidence and free from legal error. The decision of the Industrial Accident Board is, therefore, AFFIRMED.


Claimant was employed by Playtex. She injured her back on September 9, 1983. She received chemical injections to the painful disk and later had fusion surgery. Claimant received total disability benefits at a rate of $228.53 per week. After Claimant had been receiving total disability benefits for approximately eighteen years, Playtex filed a Petition for Review seeking to terminate Claimant's total disability benef its. Th e Peti tion was bas ed on the fa ct tha t Clai mant's own doctor, and Playtex' physician, both expressed the opinion that she was capable of engaging in gainful employment at a minimum of a sedentary level and up to a light duty level. In fact, Claimant had been held capable of sedentary duty as far back as September 1997. As a result, Playtex argued that Claimant was no longer eligible for total disability benefits. Claimant argued that she not only remained physically disabled, but also had developed psychological/psychiatric problems related to her work injury that prevented her from returning to the workforce. She also claimed to be a "displaced worker."

The Board held that Claimant was not totally disabled, nor was she a "displaced worker." The Board found her capable of engaging in sedentary or light duty employment. It also held that the alleged psychological complaints were unrelated to t he 1 983 work inju ry. Fi nal ly, the Board held that Claimant had sustained a diminished earning capacity, entitling her to partial disability benefits. Her partial disability benefits have since expired. Despite the Board's decision in 2001, Claimant never returned to the workforce, nor did she complete the computer training, which she had assured the Board she would. Claimant has been seen and treated by numerous doctors and specialists since then.

In 2004 or 2005, Claimant was involved in a motor vehicle accident. In that accident, she hurt her head, neck, and knee. She has testified that her whole body was sore after that accident, but nothing specifically relating to her low back region. As a result of the accident, she was admitted to the hospital trauma unit. Multiple x-rays were taken of her body, including her low back. She was diagnosed with a concussion. The records indicate that she also sustained a lumbar strain due to the accident. However, she disputes ever being told of that diagnosis.

In 2007, Claimant was involved in two incidents characterized as "falls." On February 15, 2007, during an appointment with Dr. Galesh Balu, Claimant reported that she had fallen on the floor, back first, about three weeks prior. She stated that she had had substantial pain on the left side of her back since then, and had spent most of her time on a heating pad. She reported that, while her right side still hurt, the left side now hurt more. The next incident was reported in Dr. Balu's office notes of October 4, 2007. Claimant reported that she had been involved in an altercation with a neighbor who pushed her down. She stated that she fell on her lower back and butt area. After that, she claimed to have increased pain in her lower back and neck area, as well as an inability to use her cane to get around.

Dr. Balu referred her to Dr. Bikash Bose in 2008. Dr. Bose proposed an additional surgery, a L 3-4 decompression and fusion, which was performed on October 21, 2008. Claimant did not recover well after surgery. Nevertheless, she is getting therapy and reports feeling a little bit better. On November 19, 2008 and May 6, 2009, Claimant filed Petitions to Determine Additional Compensation Due. Her petitions seek a finding that the October 2008 surgery and related medical treatment were causally related to her 1983 work accident. Thus, she claims an award of the requested medical expenses. Claimant also demands compensation for a recurrence of total disability from the date of surgery. Playtex disputed the alleged causal connection between the 2008 surgery and the work accident. It also asserted that Claimant had voluntarily removed herself from the work force prior to the October 2008, and therefore was not entitled to total disability benefits. A hearing was held on December 15, 2009. The Hearing Officer's decision held that the 2008 surgery was causally related to the 1983 work injury, awarding related medical expenses. The Board, however, found that Claimant had removed herself from the work force, and was not entitled to an award of total disability benefits for the time following the surgery.

Claimant appealed the decision to this Court. Around the same time as the appeal was filed, Playtex filed a Motion for Reargument with the Board on the medical issue and filed a cross-appeal with this Court. The Board denied the Motion for Reargument. Claimant then reappealed to this Court on the issue of the Board's determination that she was not entitled to total disability benefits following her surgery. Playtex filed an additional cross-appeal. This is the Court's decision as to the consolidated actions.


For administrative board appeals, this Court is limited to reviewing whether the Board's decision is supported by substantial evidence and free from legal error.[1]Substantial evidence is that which "a reasonable mind might accept as adequate to support a conclusion."[2] It is "more than a scintilla, but less than preponderance of the evidence."[3] An abuse of discretion will be found "if the Board 'acts arbitrarily or capaciously' or 'exceeds the bounds of reason in view of the circumstances and has ignored recognized rules of law or practice so as to produce injustice.'"[4] Questions of law will be reviewed de novo.[5] In the absence of an error of law, lack of substantial evidence or abuse of discretion, the Court will not disturb the decision of the board.[6]



Playtex appeals the portion of the Board's decision which found the October 2008 surgery causally related to the 1983 work injury, further finding the surgery reasonable and necessary under the circumstances. Playtex argues that the Board's decision disregards substantial evidence. Specifically, Playtex argues that Claimant's expert, Dr. Bose, did not have any adequate bases for his opinions as required under DRE 702 and 703, because he had only performed a limited review of Claimant's medical records. As a result, Playtex argues that there was only one competent expert, Dr. Medinilla, whose testimony should have been afforded greater weight. Playtex also argues that the Board failed to address adequately the impact of the October 2007 criminal assault.

This Court is not to "weigh the evidence, resolve questions of credibility, or make its own factual findings."[7] This Court's responsibility is to determine "if the evidence is legally adequate to support the agency's factual findings."[8] It is the role of the Board to make decisions regarding witness credibility, or choosing between expert opinions.[9] Furthermore, "[w]hether medical services are necessary and reasonable or whether the expenses are incurred to treat a condition causally related to an industrial accident are purely factual issues within the purview of the Board."[10]The Board's decision here is based on adequate evidence, if that evidence is accepted. Consequently, the Board's findings concerning Playtex' arguments will not be disturbed by the Court.

Playtex also contends that the Board applied the incorrect legal standard in reaching a determination on whether the treatment was reasonable. This argument is apparently based on the Board's reference to the standard of care in its decision. Playtex argues that, as this is not a medical malpractice case, the Board erred in considering whether there was a violation of the standard of care. This argument does not accurately portray the extent to which the standard of care was involved in the decision. The Board's reference to the standard of care was included to demonstrate that the opinion of opposing counsel would not approach directly confronting reasonableness. However, Playtex' argument fails for a more important reason. Delaware's Workers' Compensation laws provide that an employer is required to pay for medical expenses that are reasonable and necessary.[11] This is not an issue of law or application of a legal standard. "Whether medical services are reasonable and necessary is a factual issue for the Board to decide."[12] The Board's decision clearly and thoroughly discussed the issue of reasonableness. The Hearing Officer explained that, while he found "the performance of the surgery to be highly questionable, " a review of the evidence lead him to conclude that there was no other option but to find the surgery reasonable. This decision was based on the fact that Claimant's doctor stated that the surgery was reasonable while the other medical expert was unwilling directly to categorize the surgery as unreasonable. Review of the record demonstrates that the Board reached a decision based on substantial evidence. While the Board and this Court both agree that there is certainly evidence indicating that the decision to do the surgery was questionable, there is not substantial evidence to compel a conclusion that it was actually unreasonable.


As to the original appeal, Claimant argues that the Board considered the wrong question in analyzing whether she should receive total disability benefits. The Board stated that the issue was whether Claimant had chosen to withdraw from the work force for reasons unrelated to her work injury. It is Claimant's position that the question the Board should have answered is whether "the Claimant forfeited her entitlement to benefits under any applicable provision of 19 Del. C. §2353." In making such a decision, Claimant notes that the burden of proving a forfeiture under §2353 lies with the employer.

Claimant dedicated a substantial portion of her Opening Brief to the discussion of case law regarding the impact of retirement or forfeiture on an individual's ability to be eligible for disability benefits. The analysis provided by Claimant on these topics is wholly irrelevant under the circumstances in the present case. The facts of Claimant's case and the findings of the Board do not raise issues about retirement or forfeiture. Claimant has failed to address the Board's finding that she withdrew from the workforce for reasons unrelated to her work injury.

Section 2353 states that an employee who engages in any of the enumerated behaviors shall forfeit his or her right to compensation for injury. None of the listed actions is even remotely close to the circumstances of this case. The real issue is whether or not Claimant intended to remain in the workforce, or voluntarily removed herself therefrom. The Board found that despite being cleared by her own doctor to return to work in 1996-1997, as well as a 2001 Board holding that she should return to work, Claimant has not returned to work since sometime in the late 80's when she claims to have worked for a brief time for a signal/alarm company. From 2001 to 2008, despite assuring the Board that she would be completing a computer course, Claimant not only did not complete the course, but did not make any other attempts to return to the labor force. She also failed to seek assistance from the Division of Vocational Rehabilitation. The only step that Claimant did take was to send out a several resumes prior to a December 15, 2009 hearing. The jobs to which she applied were from a list supplied by a researcher for a labor market survey that was used to determine the availability and wage amount of suitable positions in the current market. The Board correctly found that Claimant had withdrawn from the workforce for reasons unrelated to her work injury prior to her surgery, and was therefore not entitled to total disability benefits following the surgery. The purpose of total disability compensation is to compensate for the loss of earning capacity, or in other words, to replace wages.[13] In the past, the Board has held "that total disability benefits were essentially wage replacement benefits, and that a claimant who voluntarily leaves the workforce and does not show that he reasonably sought alternative employment is not entitled to total disability benefits."[14] The Superior Court affirmed the decision in that case, and has also done so in other cases where an employee has failed to show reasonable attempts at a job search.[15] Since 2001, when the Board held that Claimant was able to return to work, Claimant has not done so. Claimant's own doctor thought she could return to sedentary work as early as 1996 or 1997, yet Claimant made no legitimate effort to return to the workforce. The Court agrees with the Board's finding that "[i]t is clear from her actions...that Claimant, although she was able to return to work, had no intention of re-entering the workforce." The Board's decision is based on substantial evidence and free of legal error.


For the foregoing reasons, the decision of the Industrial Accident Board is AFFIRMED.

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