Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Guardado v. Roos Foods, Inc.

Superior Court of Delaware, Sussex

February 7, 2018

Magdalena Guardado
v.
Roos Foods, Inc.,

          Walt F. Schmittinger, Esq. Schmittinger & Rodriguez, P.A.

          Andrew J. Carmine, Esq. Elzufon Austin & Mondell, P.A.

         Dear Counsel:

         This is my decision on Magdalena Guardado's ("Guardado") appeal of the Industrial Accident Board's decision terminating her total disability benefits.[1] Guardado was employed by Roos Foods, Inc. ("Roos Foods") for approximately five years. During that time Guardado was employed as a machine manager. On June 22, 2010, Guardado was involved in a work-related accident. Guardado injured her left wrist when she slipped on the floor. Guardado was out of work until the summer of 2013 when she was placed on total disability. On June 18, 2014, Guardado underwent surgery, consisting of a left wrist fusion performed by Dr. Richard DuShuttle. Dr. Dushuttle released Guardado to light-duty, one-handed work on August 7, 2014.

         Roos Food filed a Petition for Termination of Benefits on November 7, 2014, arguing that Guardado was no longer totally disabled and was physically able to return to work. The Board held a hearing on March 24, 2015. Dr. Eric Schwartz, who testified on behalf of the employer, agreed that Guardado could return to work in a one-handed light duty capacity. Roos Food also offered the testimony of Ellen Lock, a vocational case manager. Ms. Lock prepared a labor market survey in which she identified eight specific jobs which she believed Guardado could perform. Lock was aware of Guardado's job history, her inability to speak English, educational history, and her physical limitations with her left hand. Lock was not aware of Guardado's legal inability to work in the United States. Lock acknowledged that two of the jobs in the labor market survey were probably not suitable for Guardado due to her physical limitations.

         Dr. DuShuttle, who testified on behalf of Guardado, stated that the impairment to the left hand is permanent. Dr. DuShuttle believes that Guardado's use of her left hand is only good for simple activities, such as grasping light objects and assisting her right hand.

         Guardado testified before the Board. Guardado was 38 years old at the time of the first hearing. She was born in El Salvador and came to the United States in 2004. Guardado's work history was limited to her job with Roos Food. She testified that she obtained the equivalent of a high school diploma in her native El Salvador. Guardado further testified that she does not speak or write English.

         The Board denied Roos Foods' Petition for Termination of Benefits in a decision dated April 7, 2015, concluding that Guardado was a prima facie displaced worker and that Roos Foods had not shown that there was work available for Guardado given her capabilities and limitations.[2]Roos Foods appealed the April 7, 2015 Board decision to this Court. This Court affirmed the Board's decision reasoning that 1) Guardado was medically able to work with restrictions, 2) was aprimafacie displaced worker, and 3) Roos Foods did not establish that work was available to Guardado within her restrictions and qualifications was based upon substantial evidence and free from legal error.[3] Roos Foods then appealed to the Delaware Supreme Court.

         On November 29, 2016, the Supreme Court of Delaware issued its opinion reversing and remanding the judgment of the Superior Court.[4] The Supreme Court addressed two questions on appeal; first, whether an injured worker's immigration status alone renders her a prima facie displaced worker, and second, whether the Board properly found that the employer failed to meet its burden of showing regular employment opportunities within the worker's capabilities because its evidence failed to take into account the worker's undocumented status. The Supreme Court held that a claimant's status as an undocumented worker is not relevant to a determination of whether the claimant is a prima facie displaced worker, but can be used as a factor when the claimant seeks to show that she is an actually displaced worker.[5] The Supreme Court also held that if the claimant is successful in establishing that she is a displaced worker, the employer's burden of showing availability to the claimant of regular employment within her capabilities must take into account her status as an undocumented worker.[6] The Supreme Court found that Board's finding that the claimant was a prima facie displaced worker on the basis of her undocumented status alone constituted legal error.[7] As such, the Supreme Court reversed the judgment of the Board and remanded the matter back to this Court with instructions that it remand the matter back to the Board for a rehearing.

         The Remand Hearing

         A hearing on remand before the Board was held on April 27, 2017. Pursuant to 19 Del. C. § 2348(f), the Board considered all evidence that was presented at the original hearing in addition to any new evidence and legal arguments the parties decided to make. The parties stipulated that Guardado's average weekly wage at the time of the injury was $306.00 per week, with a compensation rate of $204.00 per week. The parties further stipulated that the medical testimony from the original hearing, and the Board's findings regarding Guardado's medical/physical ability to work, remained unchanged from the prior hearing. No new medical evidence was presented at the remand hearing. Three witnesses testified at the remand hearing.

         Dr. Desmond Toohey testified on behalf of Roos Foods. Dr. Toohey is an Assistant Professor of Economics at the University of Delaware. Dr. Toohey testified that his primary fields of research were in labor economics and economic demography.[8] In preparation for the hearing, Dr. Toohey prepared a report regarding jobs that exist in Delaware for undocumented workers. The report was titled "The Distribution of Unauthorized Immigrants Across Jobs in the Delaware Labor Market". In preparing his report, Dr. Toohey reviewed the two studies cited by the Supreme Court in its decision[9] and then performed an independent analysis. In performing his analysis, Dr. Toohey 1) attempted to establish roughly how many undocumented immigrants are in Delaware and then 2) figure out if they are employed and in what kinds of jobs they are employed. Dr. Toohey also acknowledged that there are inherent weaknesses in trying to determine the exact number of undocumented workers in the State. Dr. Toohey estimated that there are approximately 11.8 million unauthorized immigrants in the United States and roughly 28, 000 undocumented immigrants in the State of Delaware.[10] Dr. Toohey estimated that there are between 20, 000 and 25, 000 unauthorized immigrants working in Delaware.[11]

         In evaluating the specific jobs listed in the labor market survey, Dr. Toohey looked at the occupation and the industry that were represented. For each of the jobs listed on the labor market survey, Dr. Toohey determined the number of unauthorized immigrants working in the corresponding occupation, as well as the corresponding industry.[12] Table I of Dr. Toohey's report indicates that the following occupations have the following distribution of unauthorized immigrants: management, business, science and arts has 4, 000; service has 5, 000; sales and office has 1, 000; natural resources, construction, and maintenance has 4, 000; and, production, transportation, and material moving has 8, 000.[13] Table II of Dr. Toohey's report indicates that the listed industries have the following distribution of unauthorized immigrants: construction has 4, 000; manufacturing has 5, 000; retail trade has 4, 000; finance, insurance, real estate, rental, and leasing has less than 1, 000; professional, scientific, management, administrative, and waste management has 2, 000; educational services, health care, and social assistance has 2, 000; and, arts, entertainment, recreation, accommodation, and food services has 4, 000.

         Dr. Toohey reviewed each of the jobs listed in the labor market survey prepared by Ellen Lock, compared those jobs to his research, and determined the number of unauthorized immigrants who worked in the corresponding occupations and industries. For example, the clerk position at El Mercadito Convenience Store listed in the labor market survey involved waiting on customers, working a cash register, stocking shelves, and performing cleaning duties.[14] Dr. Toohey found that these tasks were all part of the "sales and office" occupation category which employs approximately 1, 000 unauthorized immigrants in Delaware.[15] As a convenience store, it is located in the retail trade industry which employs approximately 4, 000 unauthorized immigrants in Delaware. Dr. Toohey then performed a similar analysis on the remaining jobs in the labor market survey.[16] Based upon his research and analysis, Dr. Toohey concluded that there are thousands of undocumented immigrants employed in Delaware in each of the occupations and industries corresponding to the jobs listed in the labor market survey.[17] Dr. Toohey found the unauthorized immigrant population to be well-represented in the labor market survey.[18]

         On cross-examination, Dr. Toohey acknowledged that the margin of error in his estimated numbers is difficult to ascertain but could be as high as twenty percent. Even with this high margin of error, Dr. Toohey testified that he is still certain that there are thousands of jobs available in each of the occupation and industry categories. Dr. Toohey also did not correlate workers with disabilities in his studies. Dr. Toohey did acknowledge that many of his numbers included undocumented workers that are fluent in the English language. Dr. Toohey expressed no opinion about Guardado in particular and her prospects of being employed.

         Ellen Lock, a vocational case manager employed by Coventry, testified on behalf of Roos Foods. Lock performed a new labor market survey. Lock testified that the survey was a representative sample of positions available to Guardado. Lock testified that she was aware of Guardado's educational history, work history, her inability to read or write the English language, that she was 38 years old at the time of the first labor market survey, and her physical limitations. Lock identified 17 potential positions in the job market where Guardado would not have to communicate in the English language, positions that were entry level in nature, that do not require previous vocational experience, and that were physically appropriate. Lock personally viewed each of the jobs listed in the labor market survey. Lock discussed with prospective employers Guardado's physical limitations and her inability to communicate in the English language. Lock believes that the need for Spanish speaking employees has risen over the years. Lock testified that she is confident that Guardado could find work within her physical restrictions and vocational qualifications.

         Lock is aware that Guardado conducted a job search of her own, which included six of the seventeen jobs in the labor market survey. Guardado presented documentation to Lock that indicated that she applied to six jobs on February 13, 2017, and five jobs in the month of April. Lock testified that she is not aware of whether or not those employers had specifically responded to Guardado. Lock testified that as a rule of thumb, she likes to see people apply to ten jobs per week on average. Based upon the jobs listed in the labor market survey, Lock concluded that Guardado has an average earning capacity of $330.00 per week.

         Lock testified that the restaurant jobs she found available deal with large quantities of food and agreed Guardado might be at a disadvantage in that environment relative to other non-restricted employees. Lock testified that some of the housekeeping positions require the use of a broom or a mop and Guardado would need both hands to perform that task. Lock suggested Guardado could use her non-dominant hand to assist her as a guide even though Dr. Schwartz rejected that idea in the previous labor market survey. Lock stated that even though Guardado might be at a disadvantage, the employers she spoke with were willing to hire her even with her limitations. Lock did not discuss Guardado's undocumented status with any of the employers. Lock testified that she believed 30 minutes was a reasonable amount of time spent commuting to work. Three of the jobs Lock identified in her survey were located in Pennsylvania and over one hour away. Lock identified the jobs for the labor market survey during the months of January, February and March 2017. At the time of the hearing, Lock testified that eight of the 17 jobs were still available. Lock acknowledged that employers are more willing to hire someone with experience than without experience.

         Guardado is 40 years old. She was born in El Salvador and came to the United States in 2004. Guardado earned the equivalent of a high school degree in El Salvador, but has no other skills or training. Guardado testified that she is starting to learn how to use a computer. Guardado's work history consists of the five years she spent at Roos Foods. Guardado only speaks Spanish, but testified that she has started going to school two nights a week in order to learn English. Guardado is not able to legally work in the United States. Guardado testified that there has been no change in her medical restrictions although she started wearing a brace on her left wrist. At the time of the hearing, Guardado testified that she is only taking ibuprofen for pain. Guardado testified that she has reviewed the labor market survey and has looked for employment within her medical restrictions. Guardado has only applied to restaurant jobs. Guardado stated she has not heard back from any of the jobs to which she applied but that she wants to work.

         THE REMAND DECISION

         The Board issued its decision on May 18, 2017, granting Roos Foods' Petition for Review. In finding that Guardado was no longer entitled to total disability benefits the Board found 1) Guardado was physically capable of working, 2) that she was a prima facie displaced worker, and 3) Roos Foods successfully established the availability of jobs within Guardado's capabilities. The Board also did not award partial disability benefits, attorney's fees, or medical witness fees. Guardado now appeals the Board's decision to this Court alleging that its finding that Roos Foods successfully established the availability of jobs within her capabilities and restrictions was not based upon substantial evidence or free from legal error. I have concluded that the Board's decision is supported by substantial evidence and free from legal error.

         STANDARD OF REVIEW

         The Supreme Court and this Court repeatedly have emphasized the limited appellate review of the factual findings of an administrative agency. The function of the Superior Court on appeal from a decision of the Industrial Accident Board is to determine whether the agency's decision is supported by substantial evidence and whether the agency made and errors of law.[19] Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[20] The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings.[21] It merely determines if the evidence is legally adequate to support the agency's factual findings.[22] We review errors of law de novo[23] Absent errors of law, the Board's decision will not be disturbed where there is substantial evidence to support its conclusions.[24]

         DISCUSSION

         Guardado alleges that Board erred in terminating her total disability benefits because the evidence submitted does not establish the availability of work for her within her capabilities and restrictions. In a total disability case, the employer is initially required to show that the claimant is not totally incapacitated (i.e., demonstrate "medical employability").[25] The claimant is then required to rebut that showing, by showing that he or she is a prima facie displaced worker, or submit evidence of reasonable, yet unsuccessful, efforts to secure employment which have been unsuccessful because of the injury (i.e., actual displacement").[26] As a rebuttal, the employer may then present evidence showing that there are regular employment opportunities within the claimant's capabilities.[27]

         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. The Board made three findings in reaching its decision granting Roos Foods' Petition for Review. First, the Board found that Roos Foods met its initial burden that Guardado was medically employable. Second, the Board found that Guardado rebutted that presumption by showing that she was prima facie displaced based upon her individual circumstances. Third, the Board found that Roos Foods presented enough evidence showing that there were regular employment opportunities within ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.