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Warren v. Amstead Industries, Inc.

Superior Court of Delaware

April 23, 2019

IDA WARREN, Claimant/Appellant,
v.
AMSTEAD INDUSTRIES, INC. Employer/Appellee.

          Submitted: March 26, 2019

          Upon the Claimant's Appeal from the Industrial Accident Board

          Adam F. Wasserman, Esquire, Ciconte Serba LLC, Wilmington, Delaware 19899 Attorney for Claimant/Appellant.

          Linda L. Wilson, Esquire, Marshall Dennehey Warner Coleman & Goggin, Wilmington, Delaware 19899, Attorney for Employer/Appellee.

          MEMORANDUM OPINION

          KARSNITZ, J.

         Appellant, Ida Warren ("Warren" or "Claimant") suffered injuries to both her upper extremities while working for Appellee, Amstead Industries, Inc. ("Employer"). She received a variety of workers' compensation benefits provided pursuant to 19 Del. C. Chapter 23. She was paid total disability benefits for many years. In 2017, Employer filed its last petition to review and terminate Claimant's total disability benefits. In 2018, the Industrial Accident Board (the "Board") granted Employer's petition and Claimant has appealed.

         Claimant raises three issues on appeal. The first issue is did the Board committed legal error by considering if Claimant had retired and removed herself from the work marketplace. Alternatively Warren claims if the retirement issue was properly before the Board, the Board erred as a matter of law and abused its discretion in finding that she retired. Finally Warren alleges the Board erred by admitting certain testimony of Barbara Stevenson, Employer's vocational rehabilitation expert, and a related requests for sanctions.

         In my opinion, Employer did not properly plead the retirement issue and it was not fairly before the Board. I reverse the Board's decision and remand the case for further proceedings consistent with my opinion. Because of my decision as to the first issue, I would normally consider the second and third issues moot. However, I have addressed each of these issues briefly in the hope that my comments will be helpful to the parties.

         Standard of Review

         The standard of review by this Court of decisions of the Industrial Accident Board is well trodden ground. This Court gives factual decisions of the Board substantial deference and will reverse only if they are not supported by substantial evidence.[1] This Court provides plenary review of legal issues.[2]

         Facts

         The parties agree as to relevant facts. Claimant worked for Employer for a number of years and while employed she sustained injuries to both her upper extremities and shoulders. She received worker's compensation total disability benefits pursuant to an agreement[3] with Employer from October 30, 2010 until those benefits were terminated by Order of the Industrial Accident Board dated July 23, 2018, and from which this appeal was filed.

         I find it relevant that Employer filed similar petitions in 2011, 2013 and 2015, all of which were either denied or withdrawn. Employer filed its fourth petition in 2017. The Industrial Accident Board recited that the petition of the Employer alleged "... that Claimant was physically capable of returning to work; and therefore, no longer entitled to total disability benefits."[4] The petition itself is a form provided by the Industrial Accident Board upon which Employer checked the following two parts:

"Claimant is physically able to return to work
Other - Ida Warren is hereby notified to look for work in the open labor market."[5]
In the ordinary course of worker's compensation litigation, the parties completed a pretrial memorandum on a Board form. The form is also a "check the box" document. Here, and relevant to the total disability issue, [6] Employer checked the following:
"12 d. Claimant's current injuries are not causally related to a ...

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