Submitted: March 26, 2019
the Claimant's Appeal from the Industrial Accident Board
F. Wasserman, Esquire, Ciconte Serba LLC, Wilmington,
Delaware 19899 Attorney for Claimant/Appellant.
L. Wilson, Esquire, Marshall Dennehey Warner Coleman &
Goggin, Wilmington, Delaware 19899, Attorney for
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.
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.
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 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. This Court provides plenary review of
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 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.
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." 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."
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,
Employer checked the following:
"12 d. Claimant's current injuries are not causally
related to a ...