IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JAMES BLAIR, JR., :
: C.A. NO. KlSA-OS-OOI WLW

Claimant-Below,

Appellant,
v.
SMYRNA SCHOOL DISTRICT,
Employer-Below,
Appellee.

Submitted: January 2, 2019
Decided: April 5, 2019

ORDER
Upon an Appeal from the Decision

of the Industrial Accident Board
Reversed and Remana'ed.

Walt F. Schmittinger, Esquire and Candace E. Holmes, Esquire of Schmittinger and
Rodriguez, P.A., Dover, Delaware; attorneys for Appellant.

William D. Rimmer, Esquire and Nicholas E. Bittner, Esquire of Heckler & Frabizzio,
Wilmington, Delaware; attorneys for Appellee.

WITHAM, R.J.

James Blair, Jr. v. Smyrna School District
C. A. No. KlSA-OS-O()l WLW
April 5, 2019

INTRODUCTION

Before the Court is Appellant/Claimant James Blair Jr.’s (hereinafter “Mr.
Blair) appeal from a decision of the Delaware Industrial Accident Board (“IAB” or
“Board”) finding that Appellee/employer Smyrna School District (hereinafter the
“School District”) Was entitled to a set off for the amounts Mr. Blair received in
worker’s compensation benefits, as his sick leave is ‘an employer-supplied benefit’
for Which Mr. Blair did not pay consideration. The issue before the Court is Whether
an employer is entitled to an offset of worker’s compensation benefits When an
employee has received benefits as part of a program, for Which he has paid no
consideration to benefit from, but Would have received despite paying no separate
consideration.

For the reasons set forth below, the Court finds that the Board erred as a matter
of law When it decided to return the sick days that Mr. Blair used over the days in
question, Which is not an available remedy that the Board may authorize pursuant to
Section 2324, Title 19 of the Delaware Code. However, since this error of law Was
the predicate for the Board’s decision granting a set off to the School District, the
Court can not come to a decision today regarding the merits of Mr. Blair’s appeal,
challenging that portion of the Board’s decision. Thus, because the Court finds the
Board erred as a matter of law, the decision of the Board is hereby REVERSED
AND REMANDED.

FACTUAL AND PROCEDURAL HISTORY

Mr. Blair Worked for the School District for thirteen years as a member of its

James Blair, Jr. v. Smyrna School District
C. A. No. K18A-08-001 WLW
April 5, 2019

custodial staff. During the course and scope of his employment on March 22, 2011,
he injured his back. As part of his resulting back treatment, Mr. Blair received eleven
injections from his doctor and was forced to miss work on the day of the actual
injection, plus the immediate day following.l In July 2015, Mr. Blair underwent
lumbar surgery and subsequently missed more time from work.2

During the period subsequent to the lumbar surgery, Mr. Blair applied for
worker’s compensation benefits and a State supplement from his sick time in order
to receive compensation that would equate to his full salary.3 He was able to
supplement his worker’s compensation benefits for a time, but ultimately exhausted
his balance of sick time.4 As a result of exhausting his available sick time, Mr. Blair
only received two-thirds of his pay through the worker’s compensation benefits.5

Mr. Blair filed his Petition to Determine Additional Compensation Due initially

seeking twenty-two days of temporary total disability benefits.6 It is undisputed

 

l Stipulation of Facts at 11 2.
2 TR atl 8:8-10; Appellant Opening Brief at 3.
3 Appellant Opening Brief at 3.

4 Since Mr. Blair had used sick time to cover work missed due to the injections, he had less
sick time to supplement his time missed after the July 2015 lumbar surgery.

5 Id. at 3-4.

6 Before the hearing was conducted, it was determined that Mr. Blair had received temporary
total disability benefits regarding 7/21/11, 7/22/11, 8/15/11, 8/16/11, 10/22/15, and 10/23/15. See
Stipulation of Facts at 11 3. Additionally, it was also discovered that Mr. Blair received Short Term
Disability benefits for the dates covering 2/4/ 13 and 2/5/13. See Id. at 1[ 4. As a result, those eight

3

James Blair, Jr. v. Smyrna School District
C. A. No. K18A-08-001 WLW
April 5, 2019

between the parties that Mr. Blair was totally disabled in connection with the
administration of these eleven injections by his doctor.7

On the following dates in question: 12/15/11, 12/16/11, 5/23/13, 5/24/13,
10/10/13, 10/11/13, 3/27/14, 3/28/14, 9/11/14, 9/12/14, 1/22/15, 1/23/15, 6/11/15,
and 6/12/15, Mr. Blair used his accrued sick time so that he would not go without pay
for those days missed.8 His average weekly wage was $648.37, with a compensation
rate that amounted to $432.25.9

When Mr. Blair left his employment with the School District, he received
payment for the unused paid leave time that he had accrued during the course and
scope of his employment10 At the Board hearing, however, Mr. Blair testified that he
was unsure whether the payout had included any unused sick time, but he was certain
that he received payment for all unused accrued vacation time.ll He further testified

that he did not pay anything to receive the sick time benefits for those dates,12 and that

 

dates where not before the Board, leaving only fourteen dates for the Board’s consideration. The
Board considered the following dates: 12/15/11, 12/16/11, 5/23/13, 5/24/13, 10/10/13, 10/11/13,
3/27/14, 3/28/14, 9/11/14, 9/12/14,1/22/15,1/23/15, 6/11/15, and 6/12/15. See Id. at 11 7.

71a atjjz.

8 ld. at 115.

9 Id. at 11 6.

10 TR at 12218-22.
llId.21t1322-12.

12 TR at 14:3-6.

James Blair, Jr. v. Smyrna School District
C. A. No. K18A-08-001 WLW
April 5, 2019

while he received sick pay compensation for the days in Which he utilized that
benefit,13 he never contacted the worker’s compensation adjuster on his worker’s
compensation claim in order to ask for total disability on those dates.14

Ms. Angela Ipnar (hereinafter “Ms. Ipnar”) testified at the hearing that Mr.
Blair paid nothing to receive sick time during his employment with the School
District.15 Ms. Ipnar further testified that while she did not keep Mr. Blair’s time,16
there was no way that she could have known that Mr. Blair was out of work due to
a worker’s compensation injury because the School District’s leave forms did not
specify the reason that sick leave was being utilized.17

On July 26, 2018, the Board issued its decision, and found Mr. Blair was
entitled to receive worker’s compensation benefits without using his sick leave to
cover the fourteen days, but that the School District was entitled to a set off for the
amounts Mr. Blair received, as his sick leave is ‘an employer-supplied benefit’ for
which Mr. Blair did not pay consideration.18 The Board further stated:

that the fourteen days at issue should be recognized as workers’ compensation

 

13 Id. at 14120-23.
14 Id. at 14:16-19.
15 Id. at 22:14-16.
16 Ia'. at 23217-24.
17 Ia'.

18 Blair v. Smyrna Sch. Dist., IAB Hearing No. 1365943 at 6 (July 26, 2018).

5

James Blair, Jr. v. Smyrna School District
C. A. No. K18A-08-001 WLW
April 5, 2019

total disability benefits. Therefore, [Mr. Blair] will be credited for the fourteen

sick days he used to cover the days he was off for his work injury (so he does

not “lose” that benefit and can re-use those days another time). The amount

paid will be treated as a credit for worker’s compensation benefits that were

owed and additional payment need not be made, unless a different carrier than

the worker’s compensation carrier paid the sick leave, in which case the two

carriers shall reconcile between themselves.19

On August 3, 2018, Mr. Blair filed a notice of appeal of the Board’s order to
this Court. Mr. Blair challenges only the Board’s order with respect to the credit and
set-off.20

PARTIES’ CONTENTIONS

Mr. Blair argues on appeal that despite the Board awarding him a refund for
his sick leave used over the fourteen days in question, the Board erred as a matter of
law in awarding a credit and set-off to the School District for the amounts paid to him
in sick leave benefits. He contends that the School District is not entitled to a credit
or set-off for the amounts paid to him through his sick leave benefits either under the
Delaware Worker’ s Compensation Act, or under the Delaware Merit Rules.21 Finally,

and apparently contrasting the scope of the appeal itself, Mr. Blair argues that the

 

19 Blair, IAB Hearing No. 1365943 at 6.
211 Appellant Opening Brief at 1.

21 Appellant Opening Brief at 9.

James Blair, Jr. v. Smyrna School District
C. A. No. K18A-08-001 WLW
April 5 , 2019

Board’s decision to reissue sick days was an incomplete remedy.22

The School District opposes Mr. Blair’s contentions and argues affirmation of
the Board’s decision on three grounds. First, the School District argues that the Board
properly found the Delaware Legislature’s intent behind the Act properly supports a
credit or set-off for purely employer funded benefits.23 Second, it argues that since
sick time is a benefit granted to an employee by the state, the employer in this case,
and no evidence in the record shows otherwise, supporting the Board’s award of a
credits and/or set-off to the School District.24 Finally, the School District argues that
any reference made by the Board to the reinstatement of sick time was dicta and
constituted harmless error because the School District had independently offered to
issue such reimbursement to Mr. Blair.25

LEGAL STANDARD OF REVIEW

 

22 Ia'. at 22-23. Regarding this argument, it appears that the Appellant argues that because he
no longer works for the School District, there is no guarantee that he will be paid for the sick days
credited to him by the Board. He further argues that even if he were to be paid for those days, he
would only receive 50% of the accrued time, if he is paid from the time he separated from his
employment with the School District. ln other words, Mr. Blair argues that if he had not used the
sick days to cover the fourteen days in question, he would have had the sick time available to pay
the one-third supplement for a longer period of time, and thus, he would have received a benefit of
100% sick time rather than receiving 50% upon separation from employment.

23 Appellee Answering Brief at 8.
24 Id. at 15.

25 Ia'. at 20.

James Blair, Jr. v. Smyrna School District
C. A. No. Kl 8A-08-001 WLW
April 5 , 2019

The standard of review of a legal determination of the Board is de novo.26 The
scope of this Court’s review for an appeal from an IAB decision is limited to
examining the record for errors of law and determining whether substantial evidence
supports the Board’s factual findings27 “Substantial evidence” is defined as such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.28

This Court is precluded from weighing evidence, determining questions of
credibility, or making its own factual findings29 and must review the record in a light
most favorable to the previous prevailing party, and resolve all doubt in its favor.30
The Court must give deference to “the experience and specialized competence of the
Board” and must take into account the purposes of the Worker’s Compensation Act.91

Only if there is no satisfactory proof in support of a factual finding may this Court

 

26 Kelley v. Perdue Farms, 123 A.3d 150, 153 (Del. Super. 2015) (citing Vincem‘ v. E. Shore
Markets, 970 A.2d 160, 163 (Del. 2009).

27 Histea' v. E.I. Du Pont de Nemours & C0., 621 A.2d 340, 342 (Del. 1993).

28 D & B Transportation v. Vanliet, 2014 WL 1724833, at *3 (Del. Super. Apr. 30, 2014)
(citing Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)).

29 Stevens v. State, 802 A.2d 939, 944 (Del. Super. 2002) (citing Johnson v. Chrysler Corp.,
213 A.2d 64, 66 (De1.1965)).

39 Shaw-Malachi v. City of Wilmington/Finance, 2006 WL 1875519, at *2 (June 30, 2006)
(citing General Motors Corp. v. Guy, 1991 WL 190491, at *3 (Del. Super. Aug. 16, 1991)).

31 State v. Brown, 2000 WL 33225298, at *2 (Del. Super. Aug. 7, 2000) (citing Histed, 621
A.2d ar 342).

James Blair, Jr. v. Smyrna School District
C. A. No. K18A-08-001 WLW
April 5, 2019

overturn the decision of the Board.32
DISCUSSION

The purpose of the Delaware Worker’s Compensation Act (hereinafter “the
Act”) is “to provide a scheme for assured compensation for work-related injuries
without regard to fault and to relieve employers and employees of the expenses and
uncertainties of civil litigation.”33 Once the existence of a work-related injury has
been established, the next step is to ascertain the type of benefits due the employee.

Delaware courts have consistently held that an employer cannot benefit from
a credit attached to a source in which a claimant has paid separate consideration.34
Conversely, an employer is entitled to an offset of workers' compensation benefits
when the claimant has received payment from an employer provided insurance policy
or benefits pro gram.35 Stated differently, “an employee cannot secure double recovery

for a single loss where both sources of recovery emanate from the employer.”36 In the

 

32 Johnson, 213 A.2d at 67.

33 Kelley, 123 A.3d at 153-54 (citing Kofron v. Amoco Chemicals Corp., 441 A.2d 226, 231
(Del. 1982)).

34 See Adams v. Delmarva Power & Light Co., 575 A.2d 1103 (Del. 1990) (holding the
employer cannot assert a credit against underinsured motorist benefits derived from a policy
purchased by the claimant); see also Beckhorn v. Guardian Constr. Co., 1998 WL 733091 (Del.
Super. Sept. 2, 1998) (noting case where the employer sought a set-off for PIP benefits was
distinguishable because the claimant did not pay separate consideration, but ultimately denying the
credit due to the lack of particular evidence in that specific instance).

35 Kelley, 123 A.3d at 153.

36 Kelley, 123 A.3d at 153 (citing State v. Calhoun, 634 A.2d 335, 338 (Del. 1993)).

9

James Blair, Jr. v. Smyrna School District
C. A. No. KlSA-08-001 WLW
April 5, 2019

absence of an express intent of the legislature to extend such an offset or credit to the
employer however, this Court will decline to imply one.37

A. IAB erred awarding Sick Days to Mr. Blair

On appeal, Mr. Blair argues that the School District is not entitled to a credit
or set-off for the amounts paid to him through his sick leave benefits either under the
Act or Merit Rules. He specifically argues that: (1) the Delaware Legislature did not
intend sick leave, as constituted under the Act, to be subject to a credit or set-off to
an employer for the sick time used during a period where the worker’s compensation
benefit was wrongfully withheld;38 (2) Mr. Blair’s sick leave was a contractual
arrangement supported by an employee-furnished condition;39 and (3) the Board
exceeded its statutory authority pursuant to 19 Del. C. § 2301A(d), by purporting to
issue an order addressing the School District’s obligations under Titles 14 and 29 of
the Delaware Code, and the Merit Rules, regarding Mr. Blair’s accrued sick time.40

The Act does not provide for remedies other than monetary compensation in

 

37 Calhoun, 634 A.2d at 337.

38 Appellant’s Opening Brief at 11 (emphasis added) (Again, the Court does not agree with
Mr. Blair’s misrepresentation that any worker’ s compensation benefits were “wrongfi,llly withheld,”
especially when he appears to be the reason that they were not considered closer in time to the actual
dates where he missed work.).

39 Id. at 15.
49 Id. at 22.

10

James Blair, Jr. v. Smyrna School District
C. A. No. Kl8A-08-001 WLW
April 5, 2019

cases of injuries that result in total disability.41 ln this case, however, part of the
Board’s decision appears to be contrary to the Act. Before the Board found that a set
off was warranted for the School District, the Board credited Mr. Blair for the
fourteen sick days he used to cover the days at issue. One only needs to read the
Board’s plain language in its decision, “so that [Mr. Blair] does not “lose” that benefit

”42 to find clear evidence that the Board was

and can re-use those days another time,
awarding Mr. Blair sick days, before the days were negated by the set off awarded to
the School District. This was in error.

Despite the School District’ s assertions that the Board’ s decision regarding the
return of Mr. Blair’s sick days is simply dicta and at worst, harmless error, the Court

disagrees.43 Here, the Board’s error of law served as a predicate for its decision to

 

41 19 Del. C. § 2324 provides:

[f]or injuries resulting in total disability occurring after July 1, 1975, the compensation to be
paid during the continuance of total disability shall be 66 2/3 % of the wages of the injured
employee, as defined by this chapter, but the compensation shall not be more than 66 2/3 %
of the average weekly wage per week as announced by the Secretary of the Departrnent of
Labor for the last calendar year for which a determination of the average weekly wage has
been made, nor less than 22 2/ 9 % of the average weekly wage per week. If at the time of the
injury the employee receives wages of less than 22 2/9 % of the average weekly wage per
week, then the employee shall receive the full amount of such wages per Week, as
compensation. Nothing in this section shall require the payment of compensation aHer
disability ceases.

42 See Supra n.20.

43 The Court agrees with Mr. Blair’s concession that the Board’s award of sick days was
improper. See Appellant Answer Brief at 17 (acknowledging that the IAB did not have the authority
to issue Mr. Blair a return of his sick leave).

11

James Blair, Jr. v. Smyrna School District
C. A. No. K18A-08-001 WLW
April 5, 2019

award the School District with a set off. By awarding Mr. Blair his sick days, the
Board was able to award the School District with a set off. In other words, without
the Board’s award of sick days to Mr. Blair, there would have been no set off
available to the School District.

In sum, the Board’s decision was improper and cannot be considered harmless.
Because of this, the Court can not, and indeed, will not, reach a conclusion regarding
the merits of Mr. Blair’s appeal, as any decision regarding those merits, under the
circumstances presented here, would be inappropriate As the Court has found that
the Board erred as a matter of law, the Board’s decision must be reversed and
remanded for further consideration consistent with this opinion.

CONCLUSION

Thus, for the foregoing reasons, the decision of the Board is REVERSED
AND REMANDED.

IT IS SO ORDERED.

/s/ William L. Witham Jr.
Resident Judge

 

WLW/dmh

12

