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Blair v. Smyrna School District

Superior Court of Delaware

April 5, 2019

JAMES BLAIR, JR., Claimant-Below, Appellant,
SMYRNA SCHOOL DISTRICT, Employer-Below, Appellee.

          Submitted: January 2, 2019

          Upon an Appeal from the Decision of the Industrial Accident Board

          Walt F. Schmittinger, Esquire and Candace E. Holmes, Esquire of Schmittinger and Rodriguez, P.A., Dover, Delaware; attorneys for Appellant.

          William D. Rimmer, Esquire and Nicholas E. Bittner, Esquire of Heckler & Frabizzio, Wilmington, Delaware; attorneys for Appellee.




         Before the Court is Appellant/Claimant James Blair Jr.'s (hereinafter "Mr. Blair) appeal from a decision of the Delaware Industrial Accident Board ("LAB" or "Board") finding that Appellee/employer Smyrna School District (hereinafter the "School District") was entitled to a set off for the amounts Mr. Blair received in worker's compensation benefits, as his sick leave is 'an employer-supplied benefit' for which Mr. Blair did not pay consideration. The issue before the Court is whether an employer is entitled to an offset of worker's compensation benefits when an employee has received benefits as part of a program, for which he has paid no consideration to benefit from, but would have received despite paying no separate consideration.

         For the reasons set forth below, the Court finds that the Board erred as a matter of law when it decided to return the sick days that Mr. Blair used over the days in question, which is not an available remedy that the Board may authorize pursuant to Section 2324, Title 19 of the Delaware Code. However, since this error of law was the predicate for the Board's decision granting a set off to the School District, the Court can not come to a decision today regarding the merits of Mr. Blair's appeal, challenging that portion of the Board's decision. Thus, because the Court finds the Board erred as a matter of law, the decision of the Board is hereby REVERSED AND REMANDED.


         Mr. Blair worked for the School District for thirteen years as a member of its custodial staff. During the course and scope of his employment on March 22, 2011, he injured his back. As part of his resulting back treatment, Mr. Blair received eleven injections from his doctor and was forced to miss work on the day of the actual injection, plus the immediate day following.[1] In July 2015, Mr. Blair underwent lumbar surgery and subsequently missed more time from work.[2]

         During the period subsequent to the lumbar surgery, Mr. Blair applied for worker's compensation benefits and a State supplement from his sick time in order to receive compensation that would equate to his full salary.[3] He was able to supplement his worker's compensation benefits for a time, but ultimately exhausted his balance of sick time.[4] As a result of exhausting his available sick time, Mr. Blair only received two-thirds of his pay through the worker's compensation benefits.[5]

         Mr. Blair filed his Petition to Determine Additional Compensation Due initially seeking twenty-two days of temporary total disability benefits.[6] It is undisputed between the parties that Mr. Blair was totally disabled in connection with the administration of these eleven injections by his doctor.[7]

         On the following dates in question: 12/15/11, 12/16/11, 5/23/13, 5/24/13, 10/10/13, 10/11/13, 3/27/14, 3/28/14, 9/11/14, 9/12/14, 1/22/15, 1/23/15, 6/11/15, and 6/12/15, Mr. Blair used his accrued sick time so that he would not go without pay for those days missed.[8] His average weekly wage was $648.37, with a compensation rate that amounted to $432.25.[9]

         When Mr. Blair left his employment with the School District, he received payment for the unused paid leave time that he had accrued during the course and scope of his employment.[10] At the Board hearing, however, Mr. Blair testified that he was unsure whether the payout had included any unused sick time, but he was certain that he received payment for all unused accrued vacation time.[11] He further testified that he did not pay anything to receive the sick time benefits for those dates, [12] and that while he received sick pay compensation for the days in which he utilized that benefit, [13] he never contacted the worker's compensation adjuster on his worker's compensation claim in order to ask for total disability on those dates.[14]

         Ms. Angela Ipnar (hereinafter "Ms. Ipnar") testified at the hearing that Mr. Blair paid nothing to receive sick time during his employment with the School District.[15] Ms. Ipnar further testified that while she did not keep Mr. Blair's time, [16]there was no way that she could have known that Mr. Blair was out of work due to a worker's compensation injury because the School District's leave forms did not specify the reason that sick leave was being utilized.[17]

         On July 26, 2018, the Board issued its decision, and found Mr. Blair was entitled to receive worker's compensation benefits without using his sick leave to cover the fourteen days, but that the School District was entitled to a set off for the amounts Mr. Blair received, as his sick leave is 'an employer-supplied benefit' for which Mr. Blair did not pay consideration.[18] The Board further stated:

that the fourteen days at issue should be recognized as workers' compensation total disability benefits. Therefore, [Mr. Blair] will be credited for the fourteen sick days he used to cover the days he was off for his work injury (so he does not "lose" that benefit and can re-use those days another time). The amount paid will be treated as a credit for worker's compensation benefits that were owed and additional payment need not be made, unless a different carrier than the worker's compensation carrier paid the sick leave, in which case the two carriers shall reconcile between themselves.[19]

         On August 3, 2018, Mr. Blair filed a notice of appeal of the Board's order to this Court. Mr. Blair challenges only the Board's order with respect to the credit and set-off.[20]


         Mr. Blair argues on appeal that despite the Board awarding him a refund for his sick leave used over the fourteen days in question, the Board erred as a matter of law in awarding a credit and set-off to the School District for the amounts paid to him in sick leave benefits. He contends that the School District is not entitled to a credit or set-off for the amounts paid to him through his sick leave benefits either under the Delaware Worker's Compensation Act, or under the Delaware Merit Rules.[21] Finally, and apparently contrasting the scope of the appeal itself, Mr. Blair argues that the Board's decision to reissue sick days was an incomplete remedy.[22]

         The School District opposes Mr. Blair's contentions and argues affirmation of the Board's decision on three grounds. First, the School District argues that the Board properly found the Delaware Legislature's intent behind the Act properly supports a credit or set-off for purely employer funded benefits.[23] Second, it argues that since sick time is a benefit granted to an employee by the state, the employer in this case, and no evidence in the record shows otherwise, supporting the Board's award of a credits and/or set-off to the School District.[24] Finally, the School District argues that any reference made by the Board to the reinstatement of sick time was dicta and constituted harmless error because the School District had independently offered to issue such reimbursement to Mr. Blair.[25]


         The standard of review of a legal determination of the Board is de novo.[26] The scope of this Court's review for an appeal from an IAB decision is limited to examining the record for errors of law and determining whether substantial evidence supports the Board's factual findings.[27] "Substantial evidence" is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[28]

         This Court is precluded from weighing evidence, determining questions of credibility, or making its own factual findings[29] and must review the record in a light most favorable to the previous prevailing party, and resolve all doubt in its favor.[30]The Court must give deference to "the experience and specialized competence of the Board" and must take into account the purposes of the Worker's Compensation Act.[31]Only if there ...

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