CAPITAL UNIFORM & LINEN SERVICE Employer Below, Appellant and Cross-Appellee,
REGINALD MARTIN, Claimant Below, Appellee and Cross-Appellant.
Submitted: November 3, 2016
Appeal from the Decision of the Industrial Accident Board.
H. Richter, Esquire and Nathan V. Gin, Esquire of Elzufon
Austin Tarlov & Mondell, P.A., Wilmington, Delaware;
attorneys for Employer-Below/Appellant.
Christopher A. Amalfitano, Esquire of Ramunno & Ramunno,
P.A., Wilmington, Delaware; attorney for
William L. Witham. Jr. Resident Judge
Capital Uniform & Linen Service ("Capital")
appeals from a portion of an amended decision and award of
the Industrial Accident Board (the "Board").
Claimant-Below/Appellee/Cross-Appellant Reginald Martin has
purported to conditionally withdraw his cross-appeal.
amended decision, the Board determined that Mr. Martin had
suffered injuries causally related to a work accident he
suffered in 2013. It awarded total disability benefits from
April 30, 2014 until August 30, 2015, partial disability
benefits from August 30, 2015 until December 23, 2015, and
total disability benefits from December 24, 2015 and ongoing.
argues that the Board erred when it awarded total disability
benefits from December 24, 2015 onward. In particular,
Capital argues that the Board's determination was not
based on substantial evidence because it failed to reconcile
inconsistencies in the testimony of one of Mr. Martin's
witnesses. Mr. Martin argues that the Board based its
decision on substantial evidence and had no duty to reconcile
the Board failed to articulate how it reconciled the conflict
in the witness's testimony, its decision is REVERSED and
REMANDED. Mr. Martin shall show cause why his cross-appeal
should not be dismissed.
AND PROCEDURAL BACKGROUND
Martin suffered injuries while onboard a delivery truck owned
by Capital in 2013. His injuries, including disc injuries in
his cervical spine, were eventually treated surgically.
hearing on Mr. Martin's Petition to Determine
Compensation Due, Mr. Martin testified regarding the
incident, his injuries, and treatment. He also testified as
to his conversations with Dr. James Zaslavsky, a
board-certified orthopedic surgeon who treated Mr. Martin.
When questioned, Mr. Martin's attorney asked him whether
his meeting with Dr. Zaslavsky in December included a no-work
order from the doctor:
Q: So is it fair to say in your last meeting with Dr.
Zaslavsky that you're under the impression that he's
again taking you out of work?
A: Yes, sir.
parties summarized and entered into evidence the deposition
transcript of Dr. Zaslavsky. During the deposition, the
doctor indicated that Mr. Martin was out of work on his
Q: And how long did you continue him out of work, Doctor? Do
A: We still have him out of work at this time.
Q: He's still out of work?
A: He's still out of work. He continues to develop some
numbness and tingling.
Q: Under your orders?
A: Under my orders, and we're trying to ...