                                 SUPERIOR COURT
                                       OF THE
                               STATE OF DELAWARE

E. SCOTT BRADLEY                                                     1 The Circle, Suite 2
                JUDGE                                           GEORGETOWN, DE 19947


                                  January 26, 2016


H. Garrett Baker, Esquire                       Walt F. Schmittinger, Esquire
Elissa A. Greenberg, Esquire                    Schmittinger and Rodriguez, P.A.
Andrew J. Carmine, Esquire                      414 South State Street
Elzufon Austin Tarlov & Mondell, P.A.           Dover, DE 19903
300 Delaware Ave., Suite 1700
Wilmington, DE 19802

              RE: Roos Foods v. Magdalena Guardado
                  C.A. No.: S15A-05-002-ESB


Dear Counsel:

        This is my decision on Roos Foods’ appeal of the Industrial Accident Board’s

denial of its Petition for Termination of Benefits for Magdelena Guardado. Guardado

worked for Roos Foods for approximately five years. Guardado performed a variety

of tasks for Roos Foods, but spent most of her time operating a machine that made

cream. Guardado was involved in a compensable work-related accident on June 22,

2010.     Guardado injured her left wrist when she slipped on the floor at work.

Guardado was in and out of work until the summer of 2013 when she was placed on

total disability. Dr. Richard P. DuShuttle surgically fused Guardado’s wrist on June

18, 2014. Dr. DuShuttle released Guardado to light-duty, one-handed work on August
7, 2014. Notwithstanding that, Guardado has not been able to find a job.

      Guardado is 38-years-old. Guardado was born in El Salvador and came to the

United States in 2004. Guardado earned the equivalent of a high school degree in El

Salvador, but has no other skills or training and her work history consists of just the

five years she spent at Roos Foods. Guardado only speaks Spanish and is not able to

work legally in the United States.

      Roos Foods filed a Petition for Termination of Benefits on November 7, 2014,

arguing that Guardado was no longer totally disabled and was physically able to return

to work. The Board held a hearing on March 24, 2015. The Board denied Roos

Foods’ Petition for Termination of Benefits on April 7, 2015, concluding that

Guardado was a prima facie displaced worker and that Roos Foods had not shown that

there was work available for Guardado given her capabilities and limitations. Roos

Foods then filed this appeal. I have concluded that the Board’s decision is supported

by substantial evidence and free from legal error.

                            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 Superior Court on appeal from a decision of the Industrial Accident Board is to

determine whether the agency’s decision is supported by substantial evidence and


                                          2
whether the agency made any errors of law.1 Substantial evidence means such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.2 The appellate court does not weigh the evidence, determine questions

of credibility, or make its own factual findings.3 It merely determines if the evidence

is legally adequate to support the agency's factual findings.4 We review errors of law

de novo.5 Absent an error of law, the Board's decision will not be disturbed where

there is substantial evidence to support its conclusions.6

                                         DISCUSSION

       Normally, in a total disability case, the employer is initially required to show

that the claimant is not totally incapacitated (i.e., demonstrate “medical

employability”).7 The claimant is then required to rebut that showing, by showing that

he or she is a prima facie displaced worker, or submit evidence of reasonable, yet


       1
       General Motors v. McNemar, 202 A.2d 803, 805 (Del. 1964); General Motors v.
Freeman, 164 A.2d 686 (Del. 1960).
       2
        Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battista v.
Chrysler Corp., 517 A.2d 295, 297 (Del. Super. 1986), app. dism., 515 A.2d 397 (Del.
1986)(TABLE).
       3
           Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
       4
           29 Del.C. § 10142(d).
       5
           Person-Gaines v. Pepco Holdings Inc., 981 A.2d 1159, 1161 (Del. 2009).
       6
           Dallachiesa v. General Motors Corp., 140 A.2d 137 (Del. Super. 1958).
       7
           Howell v. Supermarkets General Corp., 340 A.2d 833, 835 (Del. 1975).

                                                 3
unsuccessful, efforts to secure employment which have been unsuccessful because of

the injury (i.e., actual displacement”).8 As a rebuttal, the employer may then present

evidence showing that there are regular employment opportunities within the

claimant’s capabilities.9

      The Workers’ Compensation Act provides that employees who have suffered

a loss in earning power following a workplace injury are entitled to benefits, and this

inquiry requires consideration of the employee’s individual circumstances. The Board

made three findings in reaching its decision denying Roos Foods’ Petition for

Termination of Benefits. First, the Board found that Roos Foods met its initial burden

by showing that Guardado was medically employable. Second, the Board found that

Guardado rebutted that presumption by showing that she was prima facie displaced

based upon her individual circumstances. Third, the Board found that Roos Foods did

not present evidence showing that there were regular employment opportunities within

Guardado’s capabilities and limitations. Roos Foods argues that the Board erred 1)

in relying on Guardado’s undocumented worker status to conclude that she is a prima

facie displaced worker, 2) in applying the Campos10 decision to the prima facie



      8
          Id.
      9
          Id.
      10
           Campos v. Daisy Construction Company, 107 A.3d 570 (Del. 2014).

                                             4
displaced worker analysis, and 3) in not requiring Guardado’s displacement to be

casually related to her accident at work, but instead basing it on her citizenship status.

I. Medically Employable

       The Board’s finding that Guardado is medically employable is based upon

substantial evidence and free from legal error. In a stipulation of facts, signed by the

parties, both Dr. DuShuttle and Dr. Eric T. Schwartz concluded that Guardado is

physically capable of returning to work with restrictions. Both doctors agree that

Guardado can do one-handed light-duty work with her right hand and use her injured

left hand as an “assistance hand.” This evidence is uncontradicted and clearly

established that Guardado is medically employable.

II. Displaced Worker

       The Board’s finding the Guardado is a prima facie displaced worker is based

upon substantial evidence and free from legal error. “A worker is displaced if she is

so handicapped by a compensable injury that [s]he will no longer be employed

regularly in any well known branch of the competitive labor market and will require

a specially-created job if [s] he is to be steadily employed.”11 An injured worker can

be considered displaced either on a prima facie basis or through showing “actual”



       11
         Torres v. Allen Family Foods, 672 A. 2d 26, 30 (Del. 1996) citing Ham v. Chrsyler
Corp. 231 A.2d 258, 261 (Del. 1967).

                                              5
displacement. The Board found that because Guardado only applied for a few jobs

there was no basis to find “actual” displacement. Therefore, the Board had to consider

whether Guardado was displaced on a prima facie basis. The critical elements to be

considered in finding prima facie displacement are a person’s age, mental capacity,

education, and training.12 Under normal circumstances, to qualify as a prima facie

displaced worker, one must have only worked as an unskilled laborer in the general

labor field.13 Guardado’s job at Roos Foods was classified as an unskilled job in

production assembly.

      The undisputed testimony before the Board established that Guardado 1) is 38-

years-old, 2) is unskilled, 3) only speaks Spanish, 4) has the equivalent of a high

school diploma from El Salvador, 5) can only use her right hand for light-duty work

and left hand as an “assistance hand,” 6) has only worked for five years, and 7) is an

undocumented worker unable to work legally in the United States. The Board recited

these facts in its written opinion with the primary focus being on the fact that

Guardado was an undocumented worker. Even without Guardado’s undocumented

status, the evidence certainly supports the Board’s finding that she fits into the prima

facie displaced category. Guardado is almost middle-aged and has no education

      12
           Chrysler Corp., v. Duff, 314 A.2d 915, 916 (Del. 1973).
      13
         See Vasquez v. Abex Corp., 618 A.2d 91 (Del. 1992)(TABLE), 1992 WL 397454, at *2
(Del. Nov. 5, 1992).

                                                6
beyond high school in El Salvador. Guardado has no real workplace training, very

little work experience, does not speak English, is unskilled in the labor market, and

has work restrictions that limit her to light-duty work with one hand. These

undisputed facts certainly portray a woman disqualified from regular employment in

any well-known branch of the competitive labor market. When you add in the fact

that she can not work legally in this country, then her difficulties in obtaining work

become even greater. There is no doubt that Guardado, with her capabilities and

limitations, is going to have a very difficult time finding a job.

III. Availability of Regular Employment

      The Board’s finding that Roos Foods failed to provide a labor market survey

showing that there were jobs available to Guardado that took into consideration all of

her capabilities and limitations is based upon substantial evidence and free from legal

error. “If the evidence of degree of obvious physical impairment, coupled with other

factors such as the injured employee’s mental capacity, education, training, or age,

places the employee prima facie in the “odd-lot” category, as defined in Hartnett and

Ham, the burden is on the employer, seeking to terminate total disability

compensation, to show the availability to the employee of regular employment with

the employee’s capabilities.14 As the Superior Court stated in Abex, “Common sense


      14
           Chrysler Corporation v. Duff, 314 A.2d 915, 916-17 (Del. 1973).

                                                7
and everyday experience tells us that a person with given physical disabilities may be

physically capable of performing certain “available” work, but because of [her]

disability may be unacceptable to an employer and thus unable to secure such work

... Jobs must be realistically “within reach” of the disabled person ... A showing of

physical ability to perform certain appropriate jobs and general availability of such

jobs is ... an insufficient showing of the availability of said jobs to a particular

claimant.”15

       Ellen Lock, a vocational rehabilitation witness for Roos Foods, performed a

labor market survey. Lock testified that the survey was a representative sample of

positions available to Guardado. Lock was aware of Guardado’s job history, her

inability to speak English, educational history, and her physical limitations. Lock

identified eight potential positions in her labor market survey that she claimed were

suitable for Guardado. Lock acknowledged that two of the jobs that Dr. Schwartz

took issue with were probably not suitable for Guardado. Lock was not aware of

Guardado’s legal inability to work in the United States. Lock stated it would be

relevant to employers, but she did not ask them if they would hire an undocumented

worker. Therefore, there is no evidence in the record that there are jobs are available



       15
          Campos v. Daisy Construction Company, 107 A.3d 570, 576 (Del. 2014) citing Abex v.
Brinkley, 252 A.2d 552, 553 (Del. Super. 1969).

                                             8
to Guardado with her qualifications and limitations.

      The Board found that while Guardado was medically able to work with

restrictions, she belonged in the “odd-lot” category because of her individual

circumstances, thus shifting the burden to Roos Foods to show the availability of

regular employment. The Board found that Roos Foods could not carry its burden to

show that work was available to Guardado with her qualifications and limitations

because Roos Foods’ own witness could not testify that there was any work available

for Guardado in light of her undocumented status.

      Roos Foods argues that the Board’s consideration of Guardado’s immigration

status was inappropriate and unrelated to her accident at work. The Delaware

Supreme Court in Campos, a total disability case, addressed this, stating that federal

restrictions that prevent employers from hiring undocumented workers may make it

more difficult for an employer to prove job availability, but any difficulty is

appropriately borne by the employer, who must take the employee as it hired [her].16

Guardado was an undocumented worker when she was hired by Roos Foods. Roos

Foods could have prevented the problems it now complains of if it had only checked

Guardado’s immigration status before it hired her. Roos Foods, as the Supreme Court

ruled in Campos, must take Guardado as it hired her. The fact that Guardado may


      16
           Campos v. Daisy Construction Company, 107 A.3d 570, 572 (Del. 2014).

                                              9
have difficulty getting another job because of her age, low education level, lack of

skills and work experience, physical limitations and immigration status is something

that Roos Foods must accept.

                                 CONCLUSION

         The Board’s finding that 1) Guardado was medically able to work with

restrictions, 2) was a prima facie displaced worker, and 3) Roos Foods did not

establish that work was available to Guardado within her restrictions and

qualifications is based upon substantial evidence in the record and free from legal

error.

         The Industrial Accident Board’s decision is AFFIRMED.

         IT IS SO ORDERED.

                                             Very truly yours,

                                             /s/ E. Scott Bradley

                                             E. Scott Bradley

ESB/sal
oc: Prothonotary




                                        10
