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Harmon v. F & H Everett & Associates

Supreme Court of Delaware

December 20, 2013

Munsel HARMON, Claimant Below, Appellant,
F & H EVERETT & ASSOCIATES, Employer Below, Appellee.

Submitted: Oct. 9, 2013.

Editorial Note:

This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.

Court Below: Superior Court of the State of Delaware, in and for Sussex County, C.A. No. S 12A-08-003.

Before HOLLAND, BERGER, and JACOBS, Justices.


JACK B. JACOBS, Justice.

This 20th day of December 2013, upon consideration of the briefs of the parties and the record in this case, it appears to the Court that:

1. Munsel Harmon, the claimant-below (" Harmon" ), appeals from a Superior Court order affirming a decision of the Industrial Accident Board (the " Board" ) that awarded Harmon disability benefits for a limited period, less an offset for unemployment benefits paid to Harmon during that period. Harmon appeals, claiming that she is entitled to total disability benefits for the period of disability identified by her physician, and that the offset for the unemployment benefits was improper. We disagree and affirm the Superior Court judgment.

2. On June 6, 2008, Harmon injured her left foot while working as a receptionist for F & H Everett, her employer (" Employer" ). Approximately three weeks later Harmon began seeing Dr. Tam, a podiatrist, for left foot pain that she attributed to the accident. Dr. Tam diagnosed Harmon with a ganglion cyst, probably resulting from the injury. On August 15, 2008, Dr. Tam performed surgery to excise the cyst, after which Harmon developed a keloid scar and nerve impingement. Harmon underwent a second surgery on April 22, 2009 to address those postoperative developments. Several months later, Harmon underwent a third surgery on February 16, 2010.[1]

3. Harmon has been out of work since her first surgery in August 2008. [2] She was terminated from Employer's employ on September 30, 2008 and began collecting unemployment benefits shortly thereafter, until August 2010. During Harmon's treatment, Dr. Tam issued five written " no-work orders" instructing Harmon not to work. The first no-work order, dated September 9, 2008, stated that Harmon could return to work on September 10, 2010. The following three no-work orders covered a continuous period beginning August 18, 2010. In the fifth no-work order dated January 11, 2011, Dr. Tam authorized Harmon to return to sedentary work. During his depositions, Dr. Tam testified that, in addition to the written no-work orders, he had instructed Harmon not to work from her first visit in July 2008 until January 2011.[3]

4. On November 10, 2010, Harmon filed a Petition to Determine Additional Compensation Due, seeking an award of total disability benefits. The Board held a hearing on Harmon's petition on March 17, 2011,[4] and issued a decision on March 30, 2011.[5] The Board, crediting Employer's expert witness, awarded Harmon four weeks of total disability following each surgery. The Board also credited Employer with an offset for the period when Harmon received unemployment benefits after her second surgery.[6] In arriving at its decision, the Board concluded that Dr. Tam's disability opinion and no-work instructions were not given in good faith. Accordingly, the Board disregarded Dr. Tam's testimony that Harmon was totally disabled from July 2008 until January 2011.[7]

5. Harmon filed a Motion for Reargument, which the Board denied by order dated May 27, 2011.[8] Harmon appealed to the Superior Court. By letter opinion dated April 24, 2012, the Superior Court reversed, finding that the Board had erred by concluding that Dr. Tam had issued the no-work orders in bad faith. [9] Noting that under Gilliard-Belfast [10] a claimant is entitled to rely on a treating physician's written no-work unless the doctor acts in bad faith, the court remanded the case to the Board. The court instructed that the written no-work orders be submitted into evidence and considered by the Board in determining total disability benefits.[11] The Superior Court did not address the offset previously awarded to Employer. [12]

6. At a remand hearing held on July 18, 2012, five no-work orders were produced. In its final (July 2012) decision, the Board awarded Harmon total disability benefits for the time periods covered by the no-work orders for " September 9, 2008 and from August 18, 2010 through January 11, 2011, as well as for four weeks after each of the three surgeries." [13] The offset to Employer was not addressed. Harmon again appealed to the Superior Court.

7. By letter opinion and order dated May 31, 2013, the Superior Court affirmed both the disability award and the offset for the period when Harmon collected unemployment benefits.[14 ...

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