       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                   IN AND FOR NEW CASTLE COUNTY

FAITH ALLEN,                          )
                                      )
      Employee – Appellant,           )
                                      )
            v.                        )     C.A. No. N14A-04-007 JAP
                                      )
CERAMIC PROTECTION                    )
CORP OF AMERICA,                      )
                                      )
      Employer – Appellee,            )
                                      )

                                  ORDER


      1. This is an appeal from a decision of the Industrial Accident

Board (the “Board”) granting the employer’s Petition for Review seeking

termination of the employee’s total disability benefits.

      2. The employee, Ms. Allen, suffered neck and upper extremity

injuries in a work-related accident in 2006 while employed at Ceramic.

Following her industrial accident, Ms. Allen underwent several surgeries

on her upper extremities, as well as a surgical fusion of three vertebrae

in her neck at her C5-C6 and C6-C7 levels. Her continued complaints of

pain resulted in a second surgical procedure on her neck. Both the

fusion surgery and its revision were performed by Bruce Rudin, M.D.,

who testified by way of deposition at the hearing before the Board. Dr.

Selina Xing, who is board certified both in pain management and in

physical medicine and rehabilitation, is managing Ms. Allen’s treatment

for pain.
       3. Ms. Allen apparently became either dependent on, or addicted

to, pain killing drugs during the course of her treatment. At the time of

the hearing her daily drug intake included 40 mg. 1 of oxycontin, twice

daily, and 15 mg. of oxycodone, also twice daily.                 Her other routine2

medications included Neurotonin (a nerve stabilizer), Zanaflax (a muscle

relaxant and pain killer), Nortriptyline (for sleep and pain) and lidocaine

lotion (for pain). Both sides agree that she was prescribed these drugs as

a result of her industrial accident.

       4. The Industrial Accident Board concluded after the March 19,

2014 hearing that Ms. Allen was no longer totally disabled. The heart of

this dispute is Ms. Allen’s contention that in reaching its conclusion the

“Board ignored evidence that [she] needed treatment that would interfere

with her ability to find employment.” 3

       5. The elements Ceramic needs to prove to support its petition are

straightforward:

              After filing a petition to terminate an employee's
              total disability benefits, a former employer bears
              the initial burden of demonstrating that the
              employee is no longer totally incapacitated for
              the purpose of working. If the employer satisfies
              that burden, the employee must show that she
              is a “displaced worker.” 4

1  The Board’s opinion stated Ms. Allen was taking 40 mg. of oxycontin twice a day.
Allen v. Ceramic Prot. Corp., IAB Hearing No. 1289503, at 4 (Mar. 19, 2014). The
underlying deposition testimony was that she was taking 60 mg. twice a day.
(Claimant’s Ex. 1 at 13). The discrepancy is immaterial to the issues presented in this
appeal.
2 The listed medications were prescribed either for daily use or on as needed basis.

See Allen, IAB Hearing No. 1289503 at 7.
3 Appellant’s Opening Br. at 5.
4 Torres v. Allen Family Foods, 672 A.2d 26, 30 (Del. 1995) (internal citation omitted).




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According to the Delaware Supreme Court, a claimant is a “displaced

worker” when:

                [S]he is so handicapped by a compensable injury
                that she will no longer be employed regularly in
                any well known branch of the competitive labor
                market and will require a specially-created job if
                she is to be steadily employed. The employee's
                physical impairment, coupled with other factors
                such as the injured employee's mental capacity,
                education, training, or age may constitute a
                prima facie showing that the employee is
                displaced. However, even if there is insufficient
                evidence for the employee to show that she is
                prima facie displaced, she is a displaced worker
                and deemed “totally disabled” for the purposes of
                the Delaware Workers' Compensation Law if she
                has made reasonable efforts to secure suitable
                employment which have been unsuccessful
                because of the injury. Assuming that the
                employee can demonstrate that she is displaced,
                the burden shifts back to the employer to show
                the availability of work within the employee's
                capabilities. 5


Ms. Allen contends the Board erred in finding she was a displaced

worker because it did not take into account that she will be unavailable

for work if and when she enters an in-patient drug rehabilitation

program.

        6. The premise of Ms. Allen’s appeal—the Board did not take into

account that she would not be available for work when she underwent

inpatient rehabilitation—is incorrect.            The Board found that Ms. Allen




5   Id. (citations and internal quotation marks omitted).


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“appeared alert and showed no overt ill effects of her medications.”6

Based on Ms. Allen’s own admission the Board found that she is capable

of driving. Moreover, the Board’s opinion stated “there is no reason [Ms.

Allen] cannot physically return to work with the restrictions outlined by

[Ceramic’s physician expert].” 7 The Board was not persuaded that Ms.

Allen would, in fact, pursue a course of inpatient rehabilitation. 8

        7. Ms. Allen’s misplaced argument is explained by the fact that the

Board’s key findings in this respect were on page 19 of its opinion and

the Board inadvertently failed to include that page in the copies it sent to

counsel. The paragraph breaks on pages 18 and 20 of the Board’s

opinion were such that it would not have been immediately obvious that

a page was missing. The court understands, therefore, why the parties

may have assumed that there was no page 19 and that the pages

following page 18 were simply misnumbered. In any event, Ms. Allen’s

counsel did not learn of the missing page 19, with its key findings, until

after they filed her opening brief.

        8. Ms. Allen learned of the missing page 19 before filing her reply

brief. In her reply brief she acknowledged that the Board considered her

need for rehabilitation. She argued, instead, that the Board incorrectly

decided that Ms. Allen was in not in need of rehabilitation and incorrectly




6   Allen, IAB Hearing No. 128903, at 19.
7   Id.
8   Id.


                                            4
concluded that she would not participate in inpatient rehabilitation.

According to Ms. Allen, “[t]his is against the weight of the evidence.” 9

       9. But in an appeal from the Industrial Accident Board this court

may not weigh the evidence or make judgments about the credibility of

witnesses. 10 That function is reserved for the Board. Rather, this court’s

role is limited to whether the Board has committed an error of law and

whether there is substantial evidence to support the Board’s factual

findings. 11    “Substantial evidence” is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” 12

       10. There is substantial evidence to support the Board’s conclusion

that Ms. Allen failed to show she would undergo inpatient rehabilitation.

She had not undertaken any rehabilitation efforts by the time the Board

conducted its hearing.          According to his office notes, Dr. Rudin,

recommended to Ms. Allen that she see a drug rehabilitation specialist,

but Ms. Allen did not do so. 13 Dr. Gelman, Ceramic’s expert, testified

that a simple return to work would be therapeutic for Ms. Allen insofar

as her rehabilitation efforts are concerned. 14 He also testified there were

rehabilitation options in which Ms. Allen could both work and undergo




9   Appellant’s Rep. Br. at 3.
10 Johnson v. Chrysler Corp., 213 A.2d 64, 66 (1965).
11 Person-Gaines v. Pepco Holdings, Inc, 981 A.2d 1159, 1161 (Del. 2009).
12 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
13 Ms. Allen denied that Dr. Rudin ever recommended that she see drug rehabilitation

physician. Hr’g Tr. at 68-69. The Board was free to reject her testimony and accept the
accuracy of Dr. Rudin’s notes.
14 Employer’s Ex. 1 at 33.




                                           5
rehabilitation. 15    In short, there was substantial evidence to allow the

Board to conclude that Ms. Allen’s avowed desire to now undertake

rehabilitation would not prevent her from working.          The court will

therefore not disturb the Board’s finding that Ms. Allen is not a displaced

worker.

             Wherefore the judgment of the Industrial Accident Board is

AFFIRMED.




                                                  John A. Parkins, Jr.
Dated: December 02, 2014                         Superior Court Judge




oc:      Prothonotary
cc:      Donald E. Marston, Esquire, James R. Donovan, Esquire,
         Bear, Delaware – Counsel for Employee-Appellant
         Christine O’Connor, Esquire, Benjamin K. Durstein, Esquire,
         Wilmington, Delaware – Counsel for Employer-Appellee




15    Id. at 33-37.


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