Submitted: October 3, 2018
F. Schmittinger, Esquire, & Candace E. Holmes, Esquire,
Schmittinger & Rodriguez, P. A., Dover, Delaware,
Attorneys for the Appellant.
S. Hunt, Esquire, Franklin & Prokopik, Wilmington,
Delaware, Attorney for the Appellee.
Theresa Holben (hereinafter "Ms. Holben") appeals
an Industrial Accident Board (hereinafter "the
Board" or "the IAB") decision in favor of her
employer, Pepsi Bottling Ventures, LLC (hereinafter
"Pepsi"). At the hearing, the parties stipulated
that Ms. Holben was partially disabled, but contested her
disability rate. After the hearing, the Board fixed the
appeal, she first challenges the Board's calculation of
her partial disability benefits. She primarily argues that a
presumption providing that post-injury wages equal
post-injury earning power applies to her case.
she appeals the Board's decision to not award her
attorney's fees pursuant to 19 Del. C. §
2320(10)b. (hereinafter the "thirty-day rule").
Pepsi offered her a compensation amount that exceeded what
the Board awarded her, but excluded medical witness fees from
the offer. Approximately fifteen days after Pepsi made the
offer, she incurred a non-refundable fee for her treating
physician's deposition. The Board ultimately awarded
medical witness fees, but denied her attorney's fees
notwithstanding her success on that issue.
reasons discussed below, a presumption that post-injury wages
equal the earning capacity of a claimant does not apply in
this case. The presumption (1) permits only an inference of
non-impairment of earning power, and (2) does not
apply when a claimant's post-injury wages are
significantly less than his or her pre-injury wages.
Furthermore, though Ms. Holben's compensation award did
not exceed Pepsi's offer, she is nevertheless entitled to
attorney's fees because she prevailed on the issue of
medical witness fees. To provide otherwise would ignore the
plain language of the statute and the purpose of the rule.
FACTS OF RECORD, PROCEDURAL BACKGROUND, AND ARGUMENTS ON
employed Ms. Holben as an account manager for approximately
three years before she suffered a work-related right knee
injury. As a result, she had a knee surgery on March 23,
2017. For some period afterward, Ms. Holben was totally
disabled as a result of the injury. When she partially
recovered, Pepsi sought to terminate her total disability
payments. After an April 2018 IAB hearing, the parties
stipulated to her partial disability. Accordingly, the Board
terminated her total disability benefits and found her to be
partially disabled as of July 25, 2017.
hearing, the IAB considered Ms. Holben's testimony, her
treating physician's testimony, the testimony of a
defense medical expert, and the testimony of Mr. Truman
Perry, a certified vocational case manager. Ms. Holben earned
$869.97 per week while working at Pepsi. Prior to that, she
worked as a lead stacker at Food Lion, set up displays for
Frito-Lay, and set out clothing at Salvation Army. She also
had managerial experience as a department manager at Walmart.
she was released to restricted duty, Pepsi could not
accommodate her work restrictions. As a result, Ms. Holben
accepted a part-time job at Royal Farms as a
facilities/maintenance employee earing $9.50 an hour,
totaling $380 a week. She began work at Royal Farms on March
8, 2018, and remains employed there in the same part-time
capacity. Ms. Holben testified that she could fulfill her
work duties in her new part-time position notwithstanding her
work restrictions. She also testified that she hoped that the
position would lead to full-time work. In the meantime, she
was still seeking full-time employment elsewhere.
Perry's testimony is also relevant to her appeal. He
testified as a certified vocational case manager. Mr. Perry
had prepared a labor market survey with Ms. Holben's
restrictions in mind, spoke to potential employers he had
identified, and visited job sites. In total, there were
thirteen jobs listed in his survey and supplement, ranging
from sedentary to medium duty capacity jobs. Mr. Perry
calculated the average weekly wage for those positions as
$670.68. Furthermore, he testified that nine jobs he had
identified in his survey were still available as of nine days
before the hearing.
Mr. Perry opined that Ms. Holben's part-time job at Royal
Farms required skills below her abilities. He based that
opinion primarily on her previous managerial experience. Mr.
Perry testified that when he spoke to the potential employers
listed on his labor market survey, they told him that Ms.
Holben would be a very competitive applicant. He also
testified that in January 2018, he contacted twelve of the
potential employers. He claimed that five had responded and
they stated Ms. Holben had not applied for their positions.
Holben testified that she applied for the seven prospective
positions listed in the labor market survey immediately after
she received it. She claimed that she received no
response from any of them. Then, Royal Farms hired her for
the part-time position. Thereafter, she received an updated
survey but did not apply for the newly identified jobs
because Royal Farms had already hired her.
decision, the Board found Ms. Holben entitled to partial
disability benefits, effective July 25, 2017. With regard to
the rate, the Board found Mr. Perry's testimony and labor
market survey to be credible. Because the Board found Ms.
Holben to be underemployed at Royal Farms, it used Mr.
Perry's average weekly wage to calculate the difference
between her preinjury wages from Pepsi and her earning power
after July 25, 2017. In other words, the Board found her
post-injury $380 weekly salary to not represent her true
earning power. In so finding, the IAB accepted Mr.
Perry's testimony that Ms. Holben had a higher skill
level than required by Royal Farms. In its decision, the
Board placed significant weight on her managerial experience
and the statements Mr. Perry relayed from employers
describing her as a competitive candidate for their
positions. After considering the evidence, the Board found
that $670.68 per week was her true earning power.
using the average weekly wage of $670.68 from the labor
market survey, the Board found Ms. Holben to be entitled to
weekly partial disability compensation at the rate of
$132.86. Had the Board accepted Ms. Holben's argument,
she would have been due significantly higher weekly benefits
based upon a larger difference between her Pepsi wages and
her Royal Farms wages. In its decision, the Board also
awarded Ms. Holben medical witness fees pursuant to 19
Del. C. §2322(e). It did not, however, award
her attorney's fees because "[t]he settlement offer
was greater than the award."
Holben argues that the Board should have applied a rebuttable
presumption that her Royal Farms wages equaled her earning
power. In light of that presumption, she contends that the
record does not contain substantial evidence supporting the
Board's decision. She also argues that the Board abused
its discretion by relying on the thirty-day rule when denying
her attorney's fees. She emphasizes that although her
recovery for partial disability benefits was less than
Pepsi's pre-hearing offer, Pepsi did not include an offer
to pay her medical witness fees. Since the Board awarded
medical witness fees, she contends she is due attorney's
counters that a rebuttable presumption that post-injury wages
equal earning power does not apply. Furthermore, Pepsi argues
that the Board weighed the credibility of the two competing
witnesses - Ms. Holben and Mr. Perry. In doing so, Pepsi
argues that although post-injury wages must be considered by
the Board when calculating Ms. Holben's earning power,
the Board was entitled to rely upon Mr. Perry's opinion
free of a rebuttable presumption to the contrary. Finally,
Pepsi argues that when it made its settlement offer, Ms.
Holben had not yet incurred the medical witness fees.
Accordingly, Pepsi argues that the Board did not commit legal
error when refusing to award her attorney's fees.
STANDARD OF REVIEW
Court's appellate review of the IAB's factual
findings is limited to determining whether the Board's
decision was supported by substantial evidence and whether it
committed an error of law. Substantial evidence means
"such relevant evidence as a reasonable mind might
accept as adequate to support a
conclusion." On appeal, the Court views the facts
in the light most favorable to the prevailing party
below. Moreover, the Court does not weigh the
evidence, determine questions of credibility, or make its own
factual findings. Absent errors of law, which are
reviewed de novo, a decision of the IAB supported by
substantial evidence will be upheld unless the Board abused
its discretion. The Board abuses its discretion when
its decision exceeds the bounds of reason in view of the
appeal is limited to two issues. The first issue is a
substantial evidence issue regarding whether the Board erred
in calculating Ms. Holben's partial disability benefits
based upon the labor market survey rather than her
post-injury wages. The parties disagree regarding whether the
Board should have applied a presumption that her post-injury
wages equaled her post-injury earning power. The second issue
is whether the Board erred as a matter of law in denying Ms.
Holben's attorney's fees.
The rebuttable presumption does not apply to the
facts of this case and the Board's calculation of partial
disability benefits was supported by substantial
Delaware law, an employee who is partially disabled due to a
work-related accident is entitled to
compensation. The Worker's Compensation Act
authorizes reimbursement for partial disability as follows:
[f]or injuries resulting in partial disability for work ...
the compensation to be paid shall be 66 2/3 percent of the
difference between the wages received by the injured
employee before the injury and the earning power of
the employee thereafter... This compensation shall be
paid during the period of such partial disability for work,
not, however, beyond 300 weeks.
disability is the "period of time in which an injured
employee suffers a partial loss of wages as a result of his
[or her] injury." A partial disability award is
calculated as the difference between pre-injury wages and
post-injury earning power. The phrases
"earning power" and "earning capacity"
are synonymous.Earning power is a function of the
employee's "age, education, general background,
occupational and general experience, the nature of the work
performable with the physical impairment, the availability of
such work and so on." Moreover, the term
earning power is not synonymous with actual earnings or wages
received, but rather with one's ability to
earn. The fact that a claimant receives
lower wages post-injury does not require a finding of
diminished earning capacity. The employee must show
that the reason for the reduction was the
parties dispute whether Ms. Holben's post-injury wages
from her part-time job at Royal Farms create a rebuttable
presumption that her earning power is the same. The Board did
not reference such a presumption in its decision, so the
Court assumes it did not apply one.
regards to the applicability of a presumption, the parties
dispute whether the Delaware Supreme Court's decision in
Ruddy v. I.D. Griffith & Co. applies to the
facts of this case. In Ruddy, the Delaware
Supreme Court limited its holding to using actual earnings to
presumptively fix earning power when an
"employee receives post-injury compensation
equal to that earned by him before the injury. .
.." Namely, the Court held that in
[w]here the injured employee returns to his former work for
the same employer at the same or higher wages . . . in
such situation there is a well-recognized presumption
of non-impairment of earning capacity.
Ruddy, the Court cited Larson 's Worker
's Compensation Law when addressing the
presumption. That treatise recognizes that this
presumption is almost universally applied to presume
non-impairment of earning capacity when pre-injury wages and
post-injury wages are the same.
Holben argues that the Ruddy case stands for a
blanket proposition that an employee's post-injury wages
are the best evidence of that employee's post-injury
earning power and that they create a presumption to that
effect. In support, she relies upon three Delaware Superior
Court cases in arguing that Ruddy'?, holding has
been extended. Namely, the Superior Court in Darnell v.
BOC Group, Inc., Darling v. Sara Lee Corp., and
Home v. Genesis Healthcare, relied upon the
Ruddy decision and, to an extent each other, in
referencing the presumption in the context of all subsequent
employment settings where the claimant is receiving any
wages.Pepsi counters that the
Ruddy decision was strictly limited to its facts and
should not have been extended beyond situations where the
claimant returned to the exact same job position with the
these three Superior Court decisions, the Court holds that
the presumption is available only to support the fact that an
employee did not suffer a loss of earning power. The
presumption has never been properly applied in favor of
fixing an impaired earning capacity. The controlling statute
and a larger number of Superior Court cases recognize the
the controlling statute does not reference a rebuttable
presumption. It merely requires the Board to take post-injury
compensation "into consideration." Namely, it
provides that in addition to considering post injury wages:
[i]n construing the words "earning power of the employee
thereafter" as those words appear in this section, the
Board shall take into consideration the value of
gratuities, board, lodging, and similar advantages received
by the employee in subsequent employment.
case such as Ms. Holben's, where post-accident wages are
significantly less than pre-injury wages and the new job is
merely part-time, affording a presumption not otherwise
required by statute goes too far. In all instances, post
injury wages, after a reasonable effort to fulfill one's
earning potential, must be considered along with
other circumstances when determining earning power. Unless
the two jobs involve the same earnings, however, such
evidence does not rise to the level of a rebuttable
presumption. In fact, in that limited situation, the
presumption operates only to create an inference
against the employee's loss of earning power.
Holben understandably relies upon the three cases that
recited an expanded presumption. They, however, discussed the
presumption without applying it or discussing why.
Furthermore, all three of these decisions affirmed the
IAB's decision and did not hold that a presumption
negated the Board's reliance on a labor market survey. In
other words, notwithstanding references to the presumption,
the courts did not apply it. Rather, all three decisions
undertook a ...