Horne v. Genesis Healthcare Corp.

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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR SUSSEX COUNTY CONNIE FRANKLIN HORNE, Claimant/Appellant, v. GENESIS HEALTHCARE, Employer/Appellee. ) ) ) ) ) ) C.A. No. 06A-08-001-RFS ) ) ) ) MEMORANDUM OPINION Upon Appeal of the Industrial Accident Board. Affirmed. Submitted: Decided: November 9, 2007 Janu ary 31, 2008 Mary E. Sherlock, Esquire, Mary E. Sherlock, P.A., Dover, Delaware, Attorney for Claiman t/Appellan t. R. Stokes Nolte, Esquire, Nolte & Associates, Wilmington, Delaware, Attorney for Employer/Appellee. STOKES , J. This is my decision regarding Connie Franklin Horne s ( Claimant ) appeal of the Industrial Accident Board s ( the Board ) decision dated July 6, 2006, regarding the calculation of temporary partial disability benefits. For the follow ing reasons, the Board s decisio n is affi rmed. STATEMEN T OF THE CA SE Claimant s injuries occurred while she was working as a Housekeeping Director at Genesis Hea lthcare ( Genesis ). 1 On April 15, 2004, Claimant injured her knee when she was moving a television set with a co-worker. Subsequently, on April 29, 2004, she injured her lo w back and felt pa in in her right le g when she was m oving table s with another w orker. Both injuries we re acknow ledged as c ompens able.2 After Claimant s low back surgery in June, 2005, she began to receive compen sation for tota l disability. On N ovembe r 18, 2005 , Genesis f iled a Petition to Terminate Benefits alleging that Claimant was no longer totally disabled. Claimant acknowledged that she was no longer totally disabled. However, she felt entitled to partial disability benefits. On December 1, 2005, Claimant filed a Petition to Determine Addition al Comp ensation D ue. Claima nt sought p ayment of m edical expe nses related to her left knee injury after a fall in October 2005. She argued that the 2005 fall was related to the 20 04 left k nee inju ry; therefo re, the kn ee surg ery was c ompe nsable . On M arch 27, 20 06, an evid entiary hearing was held on these p etitions but it cou ld not be completed. Additional testimony and argument was taken on May 31, 2006. At the 2 second hearing, Claimant sought to present testimony of a potential employer, Michael Owens, concerning Claimant s job search efforts. Mr. Owens was not listed on the pretrial memorandum before the hearing on March 27, and his information became known later. Nevertheless, the Board refused to hear Mr. Owens because it was unfair to the emp loyer for a new witn ess to be prese nted merely be caus e of a dela y caus ed by a schedu ling pro blem. 3 On July 6, 2006, the Board terminated total disability compensation.4 It found that Claimant s partial disability rate should be $47.47 per week. Its finding was based on a labor market survey ( LMS ). The Board declined to rely on Claimant s actual wages received in her job at that time to determine post-injury earning power. Claimant worked as a receptionist in her former lawyer s firm of Schmittinger & Rodriguez to fill in for someone w ho was on m aternity leave, earning $300 per w eek. A partial disability award using that fig ure from her pre-injur y salary of $300 would h ave resulted in a week ly rate of $85.07. The difference amounts to $11,250.00 over 300 weeks of compensation allowe d by statute . Thereafter, Claimant appealed the Board s decision to Superior Court. On July 23, 2007, the Court remanded this matter to complete the record about Mr. Owens proffered testimony and stated: The Bo ard shall con sider the pro ffer and d ecide if this w ould be like newly discovered evidence that should h ave been admitted. F urther, the B oard is aske d to provide an analysis of how it views the credibility of claimant s job search and the 3 labor mark et study with the details provid ed by the prof fer. Presen tly, this is unknown territory, and the circumstances may, or may not, affect the respective burdens of proof.5 On September 4, 2007, pursuant to the letter order of July 23, 2007, a remand hearing was held before the Board. The Bo ard decide d that the pro ferred evid ence sho uld have been admitted at the May 31, 2006, hearing.6 The Board found that Mr. Ow ens testimony concerned an event that happened after the first part of the hearing on March 27, 2006; therefore, he could not possibly have been called as a witness before then.7 The Board considered Mr. Owens testimony to determine if it would result in any alteration of the B oard s J uly 2006 decisio n. Mr. Owens testified that he interviewed Claimant to be a receptionist or bookkeeper. The position would have been to keep the books, operate a computer and answer the phone and take messages. 8 He also called Ms. Eileen Hanhauser, the Execu tive Dir ector of Gene sis, to run a refere nce ch eck on Claim ant afte r the inte rview. Mr. Owens and Ms. Hanhauser s testimony disagreed on whether or not Ms. Hanhauser condemned Claimant s work performance.9 Ultimately, the Board accepted Ms. Hanhauser s evidence that she did not disparage C laimant in an y way. This sub ject was reg ulated by com pany policy wh ich only allowe d disclo sure of the beg inning and en d dates of em ploymen t in these circum stances . The Board believed Ms. Hanhauser followed this personnel rule. Mr. Owens acknow ledged tha t Ms. Ha nhauser re fused to an swer certa in questions . The Bo ard felt 4 Ms. Hanhauser was not haphazard in her adherence to the policy. After sizing up the witnesses, the Board found Mr. Owens assum ed Genesis had a negative opinion because Ms. Hanhauser was discrete. As requested, the Board analyzed how Mr. Owens evidence affected the credibility of Claimant s job search and the LMS. 10 It determine d that the po ssible position with Mr. Owens company was not a truly viable job or fair indicator of her earning capacity. Therefore, Mr. Owens evidence did not affect its previous decision that the higher wage levels of the LMS should prevail over Claimant s lower earnings. The Bo ard foun d that Mr. O wens ne ver asked why Ms . Hanhau ser could n ot tell him about Cla imant s reas on for leav ing, nor did h e run add itional referen ce check s after his talk with M s. Hanha user. Also, h e never ad vertised the p osition as op en. The job itself was not filled at the time of the remand hearing, over a year and one half after Mr. Owens intervie wed C laiman t. The app eal is limited to th e Board s calculation o f Claiman t s partial disability benefits at the rate of $47.47 rather than $85.07 per week as the medical expenses are no longer in co ntention. Th e central qu estion conc erns whe ther claiman t s salary with Schmittinger & Rodriguez was the best evidence of post-injury earning power for temporary disability benefit purposes.11 If so, then the award would be higher, at $85.07, becau se her w ages at th e firm w ere low er than w hat wa s reporte d availa ble in the LMS . 5 Potentially, the validity of the LMS migh t be questioned if Ge nesis undercut Claim ant s job search so that no jobs w ere available to her. 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 appellate Court is to determine whether the agency s decision is supported by substantial evidence and free of legal error. 12 Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.13 Substantial evidence is mor e than a scintilla, b ut less th an a pre ponde rance. 14 The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings.15 It merely determines if the evidence is legally adequate to support the agency s factual findings.16 DISCUSSION Did the B oard err as a matter of law in its calculation of partial disa bility compensation pursuant to 19 Del. C. §2325, and is its decision supported by substantial evidence ? After re view, I find that its decision after rema nd is well-re asoned a nd correct. Claimant argues that the salary received at her current job was the best evidence of her earning power. Genesis supports the Board s position, which relied on the jobs 6 identified in the LMS. Claimant asserts that the Board erred in its decision because the LMS is flaw ed, and , conseq uently, it ca nnot qu alify as su bstantia l eviden ce. Partial disability is defined as the period of time in which an injured employee suffers a partial lo ss of w ages as a result o f his inju ry. 17 Title 19 of the Delaware Code states that the extent of partial disability is the difference betw een pre-injury wages and post-injury earning powe r.18 Earning power is a function of the employee s age, education, general backgro und, occu pational an d general e xperience , the nature o f the wor k perform able with th e physica l impairm ent, the a vailabilit y of such work and so on. 19 The term earning power is not synonymous with actual earnings or wages received, but rather with one s ability to earn.20 An employee s post-injury wages is evidence of current earn ing capac ity and creates a p resumptio n that such w ages are an accurate reflection of the employee s earning power. However, this presumption may be rebutted by showing that the post-injury com pensation is an unfair criterion of the employee s earning powe r.21 The Board, in its in itial decision, fo und that po st-injury comp ensation is an unfair criterion partly bec ause: [c]laimant s actual wages paid to her by her own attorney do not constitute a fair criterion of her earning power. The law firm has an interest in keeping Claimant s pay low, believing that additional compensation would come her way by virtue of a partial disability award.22 7 Claiman t argues that th is point shou ld be disreg arded bec ause it is essen tially nothing more than speculation. For sure, there is no ev idence that her forme r law firm manipulated Claimant s wages or that her wages were lower than other similarly situated employees. Yet, after review of the whole record, the Board had different evidence upon which to give th e LM S persu asive ef fect an d to reb ut the pr esump tion. Claimant argued that the LMS was flawed for several reasons. The labor market expert, Mr. Danny O Neal, considered only three employers and duplicated jobs to make eleven po sitions. Claim ant asserted th at some po sitions identifie d may not be realistically feasible, and the mere acceptance of job applications is not adequate evidence of job avai labil ity. 23 However, the Board could rationally find that the LMS was a better indicator of earning po wer on th e record. M r. O Nea l testified that he verified the p ositions existe d in the market place. He physically inspected job locations to confirm tha t they were consistent with Claimant s work restrictions.24 He also explained the challenges presented to find emp loyers who w ere willing to participate: MR. O NEA L: Becau se when I spoke w ith employers th e first thing the y would say to me, I don t want to talk to you. I don t want to talk to anyone like you. And this market h as becom e very cold an d harsh to v ocational co unselors trying to conduct job development simply because they know if they talk to us they gonna [sic] be sub poenaed , so therefore the jobs w ere available and they we re well w ithin her restrictions . I could not list th em beca use of that. 25 8 In the LMS, Mr. O Neal also considered important factors, such as Claimant s previous employme nt history, educa tion, vocation al training, me dical and v ocational lim itations to match potential employers compatible with Claimant s profile.26 Moreover, Claimant s reliance on the Superior Court decision of Abex v. Brinkley is misplaced.27 In Abex, information on generally available jobs in the market place was not germane to a claimant s earning power where the specialist did not talk to potential emplo yers and d id not try to fit emp loyment o pportu nities w ith wor k-relate d restricti ons. Rather the proper focus must be on jobs that are available and reasonably tailored to a claimant s circumstances.28 Abex is inapposite because in Abex there was no indicator that a lab or mark et surve y was co nducte d. 29 Additionally, [t]he labor market survey was not required to guarantee that each employer would hire her. It is sufficient for the survey to identify a vailable position s. 30 Finally, [t]he Board has the discretion to accept one opinion over another, if the decision is su pported b y substantial evid ence. The opinion tha t the Board ultimately adopts will be c onside red sub stantial e videnc e for pu rposes of app ellate rev iew. 31 The Board confirmed its initial decision in its remand hearing that the LMS is a better indicator of earning power after weighing the strength of all the evidence. There is a reasonab le basis in the e vidence a nd law to s ustain the resu lt. CONCLUSION Cons idering the fore going, t he Bo ard s de cision a fter rem and is a ffirme d. 9 IT IS SO ORDERED. Richard F. Stokes, Judge Original to Prothonotary cc: Industrial Accident Bo ard 10 ENDNOTES 1. Franklin-Horne v. Genesis Healthcare, IAB Hearing Nos. 1252327 & 1255840, at 2 (July 6, 2006). 2. Id. 3. Franklin-Horne v. Genesis Healthcare, IAB Hearing No. 1255840, at 122-128 (May 31, 2006). 4. Franklin-Horne v. Genesis Healthcare, IAB Hearing Nos. 1252327 & 1255840, at 29 (July 6, 2006). 5. Horne v. Genesis Healthcare, 2007 WL 2105941 at *2 (Del. Super. July 23, 2007) (ORDER). Despite a heavy schedule, the Board returned the case in a timely fashion. 6. Franklin-Horne v. Genesis Healthcare, IAB Remand Hearing No. 1252327, at 7 (October 5, 2007). 7. Id. 8. Id. at 4. 9. Id. at 5-9. 10. IAB Remand Hearing, at 9. 11. Claimant s pre-work accident wage was $427.60 per week. Her weekly wage at Schmittinger & Rodriguez was $300. Multiplying the difference of $127.60 by the compensation rate of 66 2/3% yields $85.07. If her earning capacity was $356.40, based on the LMS, then the figure of $71.20 would be multiplied by 66 2/3%, giving the result of $47.47 used by the Board. 12. Alfree v. Johnson Controls, 1997 Del. Super. Lexis 474 at *14 (Del. Super. Sept. 12, 1997) (citing General Motors v. Freeman, 164 A.2d 686 (Del. 1960)). 13. Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994). 14. Olney v. Cooch, 425 A.2d 610, 614 (Del. Super. 1981). 15. Johnson v. Chrysler Corp., 312 A.2d 64, 66 (Del. 1965). 16. 29 Del.C. § 10142(d). 11 17. Globe Union, Inc. v. Baker, 310 A.2d 883, 887 (Del. 1973). 18. 19 Del.C. § 2325. 19. Chrysler Corp. v. Williams, 282 A.2d 629, 631 (Del. Super. 1971), aff d, 293 A.2d 802 (Del. 1972). 20. Ruddy v. I.D. Griffith & Co., 237 A.2d 700, 703 (Del. 1968). 21. Id. at 703. 22. IAB Hearing Nos. 1252327 & 1255840, at 20 (July 6, 2006). 23. Claimant cites Abex v. Brinkley, 252 A.2d 552 (Del. Super. 1969); Nepi v. County Insulation, IAB Hearing No. 1106424 (June 14, 2001, at 11). 24. Franklin-Horne v. Genesis Healthcare, IAB Hearing No. 1252327, at 77-78 (May 31, 2006). 25. IAB Hearing No. 1252327, at 91. 26. Id. at 75. 27. Abex v. Brinkley, supra. 28. Id. 29. Wyatt-Helie v. Playtex Apparel, 2006 WL 2904459 at *5 (Del. Super. June 15, 2006). In Wyatt, the Board found a labor market survey to be more persuasive than actual wages to calculate partial disability compensation. 30. Id. 31. Id. at *4. 12

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