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State v. Allen-Anderson

Superior Court of Delaware

May 2, 2017

STATE OF DELAWARE, Employer-Appellant,
v.
VERONICA ALLEN-ANDERSON, Claimant-Appellee.

          Submitted: February 10, 2016

         On Appeal from the Industrial Accident Board AFFIRMED.

          John J. Ellis, Esq., Heckler & Frabizzio, Wilmington, Delaware, Attorney for Employer-Appellant.

          Gary S. Nitsche, Esq. and William R. Stewart, III, Esq., Weik, Nitsche & Dougherty, Wilmington, Delaware, Attorneys for Claimant-Appellee.

          MEMORANDUM OPINION

          ROCANELLI, J.

         This is an appeal from the Industrial Accident Board ("Board"). Employer-Appellant the State of Delaware ("Employer") appeals from the May 31, 2016 Board Decision denying Employer's Petition to Terminate Claimant-Appellee Veronica Allen-Anderson's partial disability benefits.

         I. PROCEDURAL BACKGROUND

         On July 18, 2012, Veronica Allen-Anderson ("Claimant") injured her left ankle and both shoulders while working as a police dispatcher for Employer. Employer acknowledged Claimant's injuries as work-related and compensable. On December 2, 2012, Claimant was placed on total disability and began receiving workers' compensation benefits.

         On July 24, 2014, Employer filed a petition to terminate Claimant's disability benefits. By Decision dated January 29, 2015, the Board granted Employer's petition to terminate in part following a hearing on the merits ("2015 Board Decision").[1] The Board concluded that Claimant was capable of returning to work with sedentary duty restrictions on a part-time basis, [2] but that Claimant's work-related disability continued to impact her earning capacity.[3] Accordingly, the Board terminated Claimant's total disability benefits and awarded partial disability instead.[4]

         On January 15, 2015, Employer filed a second Petition to Terminate Claimant's disability benefits ("Petition to Terminate"), and a hearing on the merits took place on March 8, 2016. Employer asserted that Claimant was not entitled to partial disability because (1) Claimant was capable of returning to sedentary work on a full-time basis; and (2) Claimant voluntarily removed herself from the workforce by failing to search for and secure part-time employment following the 2015 Board Decision. During the hearing on Employer's Petition to Terminate, the Board considered the testimony of (1) Claimant; (2) Employer's expert Dr. John Townsend, a certified neurologist who examined Claimant multiple times on Employer's behalf; (3) Truman Perry, a vocational case manager who prepared a labor market survey on Employer's behalf; and (4) Claimant's expert Dr. Nancy Kim, a physical medicine and rehabilitation specialist who began treating Claimant in December 2013.

         By Decision dated May 31, 2016, the Board denied Employer's Petition to Terminate ("2016 Board Decision").[5] The Board concluded that Employer failed to present sufficient evidence to establish a change in Claimant's condition that rendered Claimant able to return to work in a full-time capacity.[6] Additionally, the Board rejected Employer's argument that Claimant's failure to search for or secure employment constituted a voluntary withdraw from the labor market that rendered Claimant ineligible for partial disability benefits.[7] In rejecting Employer's theory, the Board found that Claimant was still entitled to partial disability because Claimant withdrew from the labor market pursuant to medical restrictions arising from Claimant's compensable work-related injury.[8]

         On June 13, 2016, Employer filed an appeal from the Board Decision to the Superior Court. On February 9, 2017, the Prothonotary assigned the appeal to this judicial officer for decision.

         II. DISCUSSION

         On appeal from the 2016 Board Decision, Employer contends that (1) the Board erred in finding that Claimant could not return to sedentary work in a full-time capacity; and (2) the Board erred in rejecting Employer's theory that Claimant voluntarily withdrew from the labor market.

         A. Standard of Review

         The Court has jurisdiction conferred by statute over appeals from administrative agencies, including appeals from the Board.[9] On appeal from a Board decision, the Court's role is limited to determining whether the Board's conclusions are supported by substantial evidence and free from legal error.[10]Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."[11] The Court reviews the Board's legal determinations de novo)[12] "Absent errors of law, however, the standard of appellate review of the IAB's decision is abuse of discretion."[13]

         B. The Board's conclusion that Employer failed to establish a sufficient change in Claimant's condition is supported by substantial evidence and free from legal error.

         The statutory provision governing the termination of disability benefits provides, in pertinent part:

On the application of any party in interest on the ground that the incapacity of the injured employee has subsequently terminated, increased, diminished or recurred or that the status of the dependent has changed, the Board may at any time, but not oftener than once in 6 months, review any agreement or award.[14]

         "The Workers' Compensation Act provides that employees who have suffered a loss in earning power following a workplace injury are entitled to benefits, and this inquiry requires consideration of the employee's individual circumstances."[15] Delaware's workers' compensation statute is designed "to give an injured employee ... a prompt and sure means of receiving compensation and medical care without subjecting [] him to the hazards and delays of a law suit."[16] This Court is to construe the statute liberally and resolve reasonable doubts in favor of the injured worker.[17]

         This Court agrees with Employer that "the proper standard for reviewing work capability in a Petition for Review [pursuant to 19 Del. C. § 2347] is whether there is a 'change in condition or circumstances.'"[18] The Delaware Supreme Court has explained that this standard requires the employer to demonstrate that an employee is "medically able to return to work and that employment is available within the claimant's restrictions."[19] It is the employer's burden to establish that "the employee is actually able to obtain a job given his particular circumstances."[20]In certain cases, "[a] showing of physical ability to perform certain appropriate jobs and general availability of such jobs is ... an insufficient showing of the availability of said jobs to a particular claimant."[21]

         This Court finds that the Board applied the correct legal standard in determining that Employer failed to set forth "sufficient evidence that there has been a change to support that Claimant can return directly to full-time sedentary work."[22] This finding is consistent with Claimant's testimony regarding her own physical condition and lack of improvement, [23] as well as the testimony of Claimant's medical expert Dr. Kim, who testified that Claimant's extreme levels of pain necessitate highly specific medical restrictions in the work environment, rendering Claimant incapable of returning to full-time sedentary employment.[24]Dr. Kim also opined that there was no notable change or improvement in Claimant's condition following the 2015 Board Decision terminating Claimant's total disability benefits.[25] In addition, Dr. Kim testified that Claimant was physically unable to perform the jobs listed in Mr. Perry's labor market survey due to the significant likelihood that Claimant's pain would prevent Claimant from concentrating, as well as the high probability that Claimant would fall and reinjure herself.[26]

         By finding that Claimant's "condition has remained essentially unchanged since the prior Board decision, "[27] the Board accepted the opinion of Claimant's medical expert Dr. Kim over the opinion of Employer's medical expert Dr. Townsend.[28] It is well-established that the Board may reconcile competing medical testimony by crediting the opinion of one expert over another.[29] Where the Board elects to adopt one expert opinion over another, the adopted opinion constitutes substantial evidence for the purpose of appellate review.[30] The Delaware Supreme Court has made it abundantly clear that "[t]he function of reconciling inconsistent testimony or determining credibility is exclusively reserved for the Board."[31] "Only where there is no satisfactory proof in support of a factual finding of the Board may the Superior Court, or [the Delaware Supreme Court] for that matter, overturn it."[32]

         This Court finds that the Board applied the correct legal standard in determining that Claimant did not experience a sufficient change in condition to warrant termination of partial disability benefits.[33] The record contains satisfactory proof that a reasonable mind might accept as adequate to support the Board's conclusion that Employer failed to meet its burden by showing that Claimant was physically able to return to work on a full-time basis.[34] The Board's conclusion is supported by substantial evidence, free from legal error, and must be affirmed.[35]

         C. Claimant continues to suffer from diminished earning capacity pursuant to her work-related injury and has not voluntarily removed herself from the workforce.

         "Under Delaware law, an employee who is partially disabled due to a work-related accident is entitled to compensation."[36] The statutory provision authorizing partial ...


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