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Capital Uniform & Linen Service v. Martin

Superior Court of Delaware

February 13, 2017

CAPITAL UNIFORM & LINEN SERVICE Employer Below, Appellant and Cross-Appellee,
v.
REGINALD MARTIN, Claimant Below, Appellee and Cross-Appellant.

          Submitted: November 3, 2016

         Upon an Appeal from the Decision of the Industrial Accident Board.

         Reversed and Remanded.

          Robert 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 Claimant-Below/Appellee.

          ORDER

          William L. Witham. Jr. Resident Judge

         Employer-Below/Appellant/Cross-Appellee 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.

         In its 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.

         Capital 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 conflicting testimony.

         Because 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Mr. 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.

          At the hearing[1] 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.[2]

         The 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 orders:

Q: And how long did you continue him out of work, Doctor? Do you remember?
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 ...

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