IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CAPITAL UNIFORM & LINEN SERVICE,:
C.A. No. K16A-06-003 WLW
Employer Below, : Kent County
Appellant and Cross-Appellee, :
v.

REGINALD MARTIN,

Claimant BeloW, :

Appellee and Cross-Appellant. :

Submitted: November 3, 2016
Decided: February 13, 2017
ORDER
Upon an Appeal from the Decision of

the Industrial Accident Board.
Reversed and Remanded.

Robert H. Richter, Esquire and Nathan V. Gin, Esquire of Elzufon Austin Tarlov &
Mondell, P.A., Wilmington, Delaware; attorneys for Employer-BeloW/Appellant.

Christopher A. Amalfltano, Esquire of Ramunno & Ramunno, P.A., Wilmington,
Delaware; attorney for Claimant-BeloW/Appellee.

WITHAM, R.J.

Capital Uniform & Linen Service v. Reginald Martin
C.A. No. K16A-06-003 WLW
February 13, 2017

Employer-Below/Appellant/Cross-Appellee Capital Uniform & Linen Service
(“Capital”) appeals from a portion of an amended decision and award of the Industrial
Accident Board (the “Board”). Claimant-Below/Appellee/Cross-Appellant Reginald
Martin has purported to conditionally withdraw his cross-appeal.

In its amended decision, the Board determined that Mr. Martin had suffered
injuries causally related to a work accident he suffered in 2013. It awarded total
disability benefits from April 30, 2014 until August 30, 2015, partial disability
benefits from August 30, 2015 until December 23, 2015, and total disability benefits
from December 24, 2015 and ongoing.

Capital argues that the Board erred when it awarded total disability benefits
from December 24, 2015 onward. In particular, Capital argues that the Board’s
determination was not based on substantial evidence because it failed to reconcile
inconsistencies in the testimony of one of Mr. Martin’ s witnesses. Mr. Martin argues
that the Board based its decision on substantial evidence and had no duty to reconcile
conflicting testimony.

Because the Board failed to articulate how it reconciled the conflict in the
witness’s testimony, its decision is REVERSED and REMANDED. Mr. Martin
shall show cause why his cross-appeal should not be dismissed.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Martin suffered injuries while onboard a delivery truck owned by Capital

in 2013. His injuries, including disc injuries in his cervical spine, were eventually

treated surgically.

Capl`tal Um`form & Linen Service v. Reginald Martin
C.A. No. Kl6A-06-003 WLW
February 13, 2017

At the hearingl on Mr. Martin’s Petition to Determine Compensation Due, Mr.
Martin testified regarding the incident, his injuries, and treatment. He also testified
as to his conversations with Dr. J ames Zaslavsky, a board-certified orthopedic
surgeon who treated Mr. Martin. When questioned, Mr. Martin’ s attorney asked him
whether his meeting with Dr. Zaslavsky in December included a no-work order from
the doctor:

Q: So is it fair to say in your last meeting with Dr. Zaslavsky that you’re
under the impression that he’s again taking you out of work?
A: Yes, sir.2

The parties summarized and entered into evidence the deposition transcript of
Dr. Zaslavsky. During the deposition, the doctor indicated that Mr. Martin was out

of Work on his orders:

Q: And how long did you continue him out of work, Doctor? Do you
remember?

A: We still have him out of work at this time.

Q: He’s still out of work?

A: He’s still out of work. He continues to develop some numbness and
tingling.

Q: Under your orders?

A: Under my orders, and we’re trying to resolve that. . . .

A: And we’re hopefully going to get him back to some kind of gainful

 

l The hearing was held before a Hearing Officer, acting with the same authority as the Board,
by stipulation of the parties under 19 Del. C. § 2301B. Hr’ g Tr. 3:3-6.

2 Hr’ g Tr. 24:16-19; see also id. at 39:15-16 (decrease in pain is because “I haven’t returned
back to wor ”).

Capital Um`form & Linen Service v. Reginald Martin
C.A. No. Kl 6A-06-003 WLW
February 13, 2017

employment3

Only shortly thereafter, still on direct, he testified that Mr. Martin was actually

on light duty:
Q: My last visit with Mr. Martin was on 12/23/2015. He’s currently on
light duty. He was on light duty since August of 2015. . . .

Q: Do you think it would be safe for him to return to that job [as a truck

driver] at this time or from August?

A: Not quite at this time. . . . We do have him at light duty. I do think

that he will eventually be ready to return to that job; and if there’s a

light-duty position at this time that his company has available for him,

he could start at that level job right now.4

When asked about when he might be able to conclude Mr. Martin was ready
for work hardening,5 Dr. Zaslavsky responded:

A: I would hope that within six weeks we should be able to come up

with a decision about his ability to return to his previous job level.6

On cross-examination, Dr. Zaslavsky indicated Mr. Martin was still on light

duty at the time of the deposition:
Q: And as of August 26, you saw him on August 26 and you released

 

3 Zaslavsky Dep. 26:5-14, 21-22.
4 Id. at 34:2-4, 15-23.

5 “Work hardening” refers to a multidisciplinary occupational therapy approach designed to
“restore the work performance skills of workers recovering from long-term injury or illness.” Julie
Dorsey et al., Work Rehabilitation, American Occupational Therapy Association (2012),
http://www.aota.org/About-Occupational-Therapy/Professionals/WI/Work-Rehab.aspx.

6 Id. at 38:10-12.

Capital Um'form & Linen Service v. Reginald Martin
C.A. No. Kl6A-06-003 WLW
February 13, 2017

him to light duty on August 31st, 2015; correct?

A: Correct.

Q: And he’s been able to do light duty ever since August 31st, 2015.

A: That’s correct.7

The Board’s amended order found the injuries to be causally related to a work
accident and, among other things, awarded total disability benefits from April 30,
2014 until August 30, 2015, partial disability benefits from August 30, 2015 until
December 23, 2015, and total disability benefits from December 24, 2015 and
ongoing.

This appeal followed. Mr. Martin filed a cross-appeal, which he later
attempted to conditionally withdraw.

THE PARTIES’ CONTENTIONS

The Employer contends that the Board’s decision is not based upon substantial
evidence because the Board failed to reconcile Dr. Zaslavsky’s inconsistent
testimony. The Employer further argues that the Board erred as a matter of law by
holding that Mr. Martin was entitled to rely on Dr. Zaslavsky’S no-work order in
December 2015.

Mr. Martin contends that the Board was not under a duty to resolve the
conflicting testimony and appears to concede that the testimony was inconsistent To
the extent it was inconsistent, he argues, the Board was merely harmonizing Dr.

Zaslavsky’s testimony with Mr. Martin’s testimony that he believed he was under a

 

7 Id. at 40:12-18.

Capital Uniform & Linen Service v. Reginald Martin
C.A. No. Kl6A-06-003 WLW
February 13, 2017

no-work order.
STANDARD OF REVIEW

This Court’ s function on an appeal from a Board decision is limited. The Court
“review[s] the record to determine whether the Board’s decision is supported by
substantial evidence and is free from legal error.”8 “Substantial evidence means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”9 “The Board’s responsibility is to resolve conflicts in the evidence and
to articulate that resolution in its decision.”l°

When the issue appealed from is solely a question of law, the Court reviews its
decision de novo.ll Otherwise, the Court reviews for an abuse of discretion.12

DISCUSSION

By failing to expressly reconcile contradictory testimony by Dr. Zaslavsky, the
Board did not base its determination on substantial evidence.

Mr. Martin’s argument that the Board does not have a duty to resolve

conflicting testimony is patently without merit. Mr. Martin sought to distinguish

several early cases where the contrary rule was applied by pointing out that they

 

8 Vincent v. E. Shore Mkts., 970 A.2d 160, 163 (Del. 2009).

9 Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988) (citing DiFilippo v.
Beck, 567 F. Supp. 110, 113 (D. Del. 1983) (applying State law in diversity)).

10 Pantoja v. J.C. Penney Co., Inc., No. 03A-01-001, 2004 WL 83 8636, at *2 (Del. Super.
Apl‘. 19, 2004) (Citing Venl`ure Milling CO. v. Bennel‘t, NO. 94A-()8-003, 1995 WL 156225, at *3
(Del. Super. Feb. 27, 1995), afd, 690 A.2d 467 (Tabl€), 1996 WL 731723 (Del. DCC. 5, 1996)).

ll Vincent, 970 A.2d at 163.
12 Ia'.

Capital Uniform & Linen Ser'vice v. Reginald Martin
C.A. No. Kl6A-06-003 WLW
February 13, 2017

involved Division of Motor Vehicle hearings or were decided prior to the current
Administrative Code.13 While those arguments may hold sway as to those early cases,
this Court has imposed a duty to resolve conflicting testimony more recently,
including in reviewing Industrial Accident Board decisions, long after the adoption
of the Administrative Code.14

The Board failed to meet its responsibility to articulate how it resolved Dr.
Zaslavsky’s conflicting testimony. Its decision makes no mention of the doctor’s
testimony that Mr. Martin was actually on light duty as of December 23. Its analysis
is limited to a single sentence on page thirteen of its decision: “Dr. Zaslavsky . . .
recommended that Claimant remain out of work for at least another six weeks, to
allow Claimant time to continue treating for physical and mental health issues that
arose from the work accident.” This threadbare recital of a portion of the doctor’s
testimony is not enough to discharge the Board’s duty to articulate how it arrived at
its interpretation of the doctor’s alternating testimony. This insufficiency in the
record merits remand under 29 Del. C. § 10142(c).

Assuming that Dr. Zaslavsky did give Mr. Martin a no-work order, Capital
argues that the Board erred as a matter of` law by permitting Mr. Martin to rely on a

no -worker order when that no-work order followed “a closed period of sedentary/ li ght

 

13 Venture Milling Co., 1995 WL 156225, at *3; Attix v. Voshell, 579 A.2d 1125, 1127-28
(Del. Super. 1989).

14 See, e.g., Pantoja, 2004 WL 83 8636, at *2 (citing Venture Milling Co., 1995 WL 156225,
at *3).

Capital Um'form & Linen Service v. Reginald Martin
C.A. No. Kl6A-06-003 WLW
February 13, 2017

duty work.”15 lt is well-established that “a person who can only resume some form
of employment by disobeying the orders of his or her treating physician is totally
disabled, at least temporarily, regardless of his or her capabilities.”16 Stated
differently:

[l]f a claimant is instructed by his treating physician that he or she is not

to perform any work, the claimant will be deemed to be totally disabled

during the period of the doctor’s order. This rule assumes that the

doctor acts in good faith, and does not extend beyond the time that the

Board decides whether the claimant is disabled as a matter of fact.17
Capital relies on no authority for its argument that the application of this established
rule should be restricted to an initial period of total disability. The Court declines
Capital’s invitation to create a new rule of law restricting the application of the settled
rule from Gilliard-Belfast.

The parties raise a number of ancillary points, including Capital’s good faith
and Mr. Martin’s expectation of returning to work with Capital, that were not raised
below and are well outside the scope of this appeal.

The Court also holds that Mr. Martin’ s attempt to “conditionally withdraw” his
cross-appeal, subject to the Court making certain directives to the Board upon

remand, is not a procedure authorized by the Superior Court Civil Rules. The Court

thus finds it appropriate that his cross-appeal be dismissed sua sponte under Rule

 

15 Appellant’s Opening Br. 18.
16 Gilliard-Belfast v. Wena'y’S, InC., 754 A.2d 251, 254 (Del. 2000).

17 Delhaize Am., Inc. v. Baker, 880 A.2d 1047 (Table), 2005 WL 2219227, at *l (Del. Aug.
12, 2005).

Capital Uniform & Linen Service v. Reginala' Martin
C.A. No. Kl6A-06-003 WLW
February 13, 2017

7 2(i).
CONCLUSION

Because the Board failed to expressly reconcile the conflicting testimony, its
decision is REVERSED and REMANDED. Upon remand, the Board is directed to
articulate how it reconciled Dr. Zaslavsky’s contradictory statements as to whether
he issued a no-work order on December 24, 2015.

The Prothonotary shall forward notice to Mr. Martin directing that he show
cause, within ten days of the notice, why his cross-appeal should not be dismissed for
failure to diligently prosecute the cross-appeal, failure to comply with Rule 72(i)
relating to voluntary dismissal, and failure to comply with the Court’s briefing
schedule. Should he fail to respond within fifteen days, the Court will dismiss his
cross-appeal

IT IS SO ORDERED.

/S/ William L. Witham Jr.
Resident Judge

 

WLW/dmh

