Submitted: January 23, 2014
Upon Consideration of Appeal From the Unemployment Insurance Appeal Board.
Michael I. Silverman, Esquire and D. Miika Roggio, Esquire, SILVERMAN, NCDONALD & FRIEDMAN, Wilmington, Delaware. Attorneys for Employee-Below/Appellant.
John Gilbert, Esquire and Amy M. Taylor, Esquire, HECKLER & FRABIZZIO, P.A., Wilmington, Delaware. Attorneys for Employer-Below/Appellee.
Charles E. Butler, Judge.
Angel Francisco ("Claimant") and Natural House, Inc. ("Employer") have cross-appealed the March 18, 2013 decision of the Industrial Accident Board ("Board"). After hearing argument on Employer's petition to terminate total disability benefits, the Board terminated Claimant's total disability benefits and granted Claimant partial disability benefits at the rate of compensation of $53.79 per week.
On appeal, Claimant argues that the Board erred when it failed to find Claimant to be a prima facie displaced worker, thereby terminating his total disability benefits. Employer, on cross-appeal, argues the Board erred in finding Claimant was entitled to partial disability benefits, because it is urged that his loss in earning power was not due to work injury, but rather to his undocumented worker status. After review, the Court finds both aspects of the Board's decision to be based on substantial evidence and free from legal error. Therefore, the decision of the Board is AFFIRMED.
FACTUAL AND PROCEDURAL BACKGROUND
On November 20, 2009, Claimant, while in the course and scope of his employment, suffered a severe crush injury to his left arm. Since the accident, Claimant received total disability benefits of $270.78/wk, based on his average weekly wage of $406.15. Employer subsequently filed a petition seeking to terminate total disability benefits, and a hearing was held on February 8, 2013.
At the hearing, two doctors testified. The first, Dr. Evan Crain, who had been treating Claimant about 3 months after the accident, released him to medium duty work, which allowed lifting between 20-50 pounds. However, Dr. Crain noted that Claimant would never recover to the point where he could do full, unrestricted work, and would need to be restricted from repetitive use of his left hand and grasping. The second doctor, Dr. Jerry Case, concluded that medium duty restrictions were appropriate, after noting that Claimant had residual limited motion, numbness, and weakness, but could perform fulltime work with lifting restrictions of 10 pounds on the left arm only, and no restrictions on the right arm.
In addition to the physicians, Claimant also testified. Claimant stated that he is Guatemalan born, and cannot speak, read or write English, nor can he read or write Spanish, other than his name. He also has difficulty understanding some Spanish speakers because he speaks a specific Guatemalan dialect. Despite being right hand dominate, Claimant testified that he is limited in his physical activities because he feels pain daily on his left arm and it is difficult for him to lift things without feeling like his "forearm will explode." Also limiting his ability to work is Claimant's lack of social security card, green card, visa, or working papers. Prior to his injury, Claimant performed landscaping jobs.
Finally two vocational experts testified. The first, Shelli Palmer, prepared a labor market survey ("LMS") that identified eleven jobs that she believed to be consistent with Claimant's vocational and physical capabilities based on a review of his medical records and meeting with Claimant personally. Dr. Case also approved all these jobs. The jobs identified in the LMS would require Claimant to predominately use his right hand for most of the work and manipulation, with assistance from his left hand. In addition, there were Spanish-speaking employees at these jobs, so she did not believe language would be a barrier to employment. However, she felt that it was not possible to place Claimant in a job because of his legal/residency status. The second expert, Jose Castro, testified that he did not believe Claimant could do any jobs that Ms. Palmer noted in the LMS, because they all require some use of both of Claimant's hands repetitively. However, Castro conceded that Claimant could work if the job did not require repetitive use of his left hand.
On March 18, 2013, the Board issued a written decision terminating Claimant's total disability benefits. The Board determined that the Claimant was medically capable of working in a medium duty capacity with restrictions on repetitive use of his left arm. After considering the testimony and Claimant's obvious physical impairment, mental capacity, education, training, and age, the Board was not convinced that Claimant is displaced from the competitive labor market, primarily because he is still capable of medium duty work, is only 30 years old, and has unrestricted use of his right arm. The Board also noted that any difficulty finding work that flows from the legal residency status was not relevant to their determination. Finally, the Board found that Claimants efforts were not a reasonable job search. Claimant only conducted a limited job search through ...