IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IDA WARREN, : C.A. N0. SlSA-OS-OOZ CAK
Claimant/Appellant,

V.
AMSTEAD INDUSTRIES, INC.

Ernployer/Appellee.

Submitted: March 26, 2019
Decided: April 23, 2019

Upon the Claimant’s Appeal from the Industrial Accident Board

MEMORANDUM OPINION

Adam F. Wasserman, Esquire, Ciconte Serba LLC, Wilmington, Delaware 19899
Attorney for Claimant/Appellant.

Linda L. Wilson, Esquire, Marshall Dennehey Warner Coleman & Goggin,
Wilming,ton, Delaware 19899, Attorney for Employer/Appellee.

KARSNITZ, J.

Appellant, Ida Warren (“Warren” or “Claimant”) suffered injuries to
both her upper extremities While Working for Appellee, Amstead Industries, Inc.
(“Employer”). She received a variety of Workers’ compensation benefits provided
pursuant to 19 Del. C. Chapter 23. She Was paid total disability benefits for many
years. In 2017, Employer filed its last petition to review and terminate Claimant’s
total disability benefits. In 2018, the Industrial Accident Board (the “Board”)
granted Employer’s petition and Claimant has appealed.

Claimant raises three issues on appeal. The first issue is did the
Board committed legal error by considering if Claimant had retired and removed
herself from the Work marketplace Alternatively Warren claims if the retirement
issue Was properly before the Board, the Board erred as a matter of law and abused
its discretion in finding that she retired. Finally Warren alleges the Board erred by
admitting certain testimony of Barbara Stevenson, Employer’s vocational
rehabilitation expert, and a related requests for sanctions

In my opinion, Employer did not properly plead the retirement issue and it
Was not fairly before the Board, l reverse the Board’s decision and remand the
case for further proceedings consistent With my opinion. Because of my decision
as to the first issue, l Would normally consider the second and third issues moot.

HoWever, I have addressed each of these issues briefly in the hope that my

comments will be helpful to the parties
Standard of Review
The standard of review by this Court of decisions of the Industrial
Accident Board is well trodden ground. This Court gives factual decisions of the
Board substantial deference and will reverse only if they are not supported by

substantial evidence.l This Court provides plenary review of legal issues2

Facts

 

The parties agree as to relevant facts Claimant worked for Employer
for a number of years and while employed she sustained injuries to both her upper

extremities and shoulders She received worker’s compensation total disability

 

' Person-Gaines v. Pepco Holdings, Inc., 2009 WL 1910950 (Del. Super. Ct. April 23, 2009),
aff’a’ Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159 (Del. 2009) (“"l`he duty of this Couit
on an appeal from the Board is to determine whether the decision below is supported by
substantial evidence ...Substantial evidence means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion "l`he standard of review requires the reviewing
court to search the entire record to determine whether. on the basis of" all of the testimony and
exhibits before the agency, it could fairly and reasonably reach the conclusion that it did. lt is
within the province of the Board to determine the credibility of witnesses and the factual
inferences that are made from those determinations (j)nly where there is no substantial,
competent evidence to support the Board's factual findings may this Court o\/eiturn the Board's
decision.") See also Genera/ rl/I()Io/'.\‘ C('))'/). v. ./m"/‘e/. 493 A.2d 978. 980 (Del. Super 1985);
Hi.s'ted v. E.I. Dz/P()n/ de A/’enmm'.s' & (.`0.. 621 A.2d 340. 342 (Del. 1993); Nc`/I `/ ('us/z Reg/’.s'/er v.
Rl`ne)‘, 424 A.2d 669, 674-75 (Del. Super. 1980); Slcmdm'(l Di.s'/)"i[)L/I/'Hg. /)zc. \’. Hcill, 897 A.2d
155. 158 (Del. 2006); ./()hnso)'l v Ch)‘ys/er' Co/'p.` 213 A.2d 64, 67 (Del. 1965).

2 Id.; Stcmley v. Kraft Foods, Inc. 2008 WL 2410212, at *2 (Del. Super. Mar. 24, 2008), citing
Histea’, supra, at 342.

benefits pursuant to an agreement3 with Employer from October 30, 2010 until
those benefits were terminated by Order of the Industrial Accident Board dated
July 23, 2018, and from which this appeal was filed.

1 find it relevant that Employer filed similar petitions in 2011, 2013
and 2015, all of which were either denied or withdrawn. Employer filed its fourth
petition in 2017. The Industrial Accident Board recited that the petition of the
Employer alleged “... that Claimant was physically capable of returning to work;
and therefore, no longer entitled to total disability benefits.”4 The petition itself is
a form provided by the Industrial Accident Board upon which Employer checked
the following two parts:

“Claimant is physically able to return
to work

Other - Ida Warren is hereby notified to
look for work in the open labor market.”5

In the ordinary course of worker’s compensation litigation, the parties
completed a pretrial memorandum on a Board form. The form is also a “check the

box” document. Here, and relevant to the total disability issue,6 Employer checked

 

3 See 19 Del. C. §2344.
4 Decision of the Industrial Accident Board dated July 23, 2018, at page 2.
5 D.I. No. 12, Exhibit B

6 Employer also raised issues concerning medical expenses not relevant to this appeal.
4

the following:

“12 d. Claimant’s current injuries are not
causally related to a work accident

e. The period of total disability is not as alleged
f. The period of partial disability is not as alleged
m. Displaced Worker Doctrine does not apply
Paragraph 13 of the Board’s form provides a place for the Employer
to state any other defense upon which it relies Employer made three entries in
this section, none of which addressed the retirement issue. Neither party mentions
retirement in the petition or the pretrial memorandum As allowed by Board rules,
Employer amended its portion of the Pretrial Memorandum prior to the hearing,
but did not mention the retirement issue.
ln preparing for the Board hearing, Claimant took the depositions of
Richard DuShuttle, M.D. and Jeffrey Meyers, M.D. Both testified generally
concerning medical issues ln addition, Employer asked Dr. DuShuttle about a
portion of an office note dating back to 2013 in which Dr. DuShuttle stated
Claimant told him she was retired. Employer also asked Dr. Meyers about Dr.
DuShuttle’s note; Dr. Meyers confirmed the note as part of the medical record.

Employer also presented evidence from an occupational therapist, Neil Taylor.

Taylor mentioned in his testimony that Claimant had said she intended to retire at
an age which she now had reached.

The Board hearing was held over two days separated by several
months In the time between the two days of Board hearings counsel
communicated about the case. The communications included a letter dated
February 18, 2018 from Employer’s counsel to Claimant’s counsel in which she
stated:

“In this case, based on the evidence to date,
I think there is a good chance that the Board
will find that your client is now living a
retirement lifestyle and that she is therefore
not entitled to any partial benefits”7

Neither party made the “retirement” argument until Employer’s
closing argument. Claimant timely objected asserting it had not been fairly raised.
The Board implicitly overruled Claimant’s objection, since it decided the case on
the retirement issue. ln its decision the Board stated:

“The primary issue in this case is whether
or not Claimant voluntarily retired or
resigned from Employer”8
The parties spent considerable time and effort reciting facts and

7 See D.I. 14, page B930

8 Decision of the Industrial Accident Board dated July 23, 2018, at page 34.
6

discussing legal questions in addressing the third issue. Claimant contends she
was not provided portions of Ms. Stevenson’s reports and that Ms. Stevenson
committed perjury in her testimony. I find the issues surrounding Ms. Stevenson
moot and will address them only briefly in my analysis
Analysis
1. Was The Retirement Issue Properly Before the Board?

Delaware law allows an Employer paying total disability payments to
challenge continuing payments by filing a Petition for Review. Petitions for
Review are common and typically rely upon claims that a Claimant is no longer
disabled. In the alternative, if any disability has diminished to the point a
Claimant has the ability to work, Petitions for Review will focus upon both the
physical and other abilities of the Claimant, and what employment opportunities
are available to Claimant considering any residual physical limitations Delaware
law also requires a Claimant who has the ability to work seek employment9 The
requirement for work can implicate a claimant’s decision to retire. Simply put, if a

claimant is able to work and decides to retire, she is no longer entitled to receive

9 Franklin Fabricators v. Irwin, 306 A.2d 734, 737 (Del. 1973); Watson v. Wal-MartAssocz`ates,
30 A.3d 775 (Del. 2011).

disability payments.'0 Claimant’s retirement status is fair game for an Employer.
In this case Employer failed to plead or otherwise give notice to Claimant of the
retirement issue which was, according to the Board itself, the primary issue.
Industrial Accident Board Rule 9(A)(4) states that hearings shall be
held “...on the issues that are subject to the petition.” IAB Rule 9(B)(5)(b) also
requires the Pretrial Memorandum to contain “...a complete statement of what the
petitioner seeks and alleges ...” and “...a clear statement of the basis for the

petition.” Not surprisingly, case law explains that the Board rules are to provide

7 4

for “more efficient administration of justice...’ and ‘...the prevention of

zell

surprise.
The designers of the workers’ compensation system sought
simplicity, but all hearing processes must provide fair notice of important, and

certainly primary, issues to be litigated. Fundamental concepts of due process

require as much.

Employer does not dispute that retirement was not mentioned in any

of the pretrial documents Employer’s argument has several components

'0 Estate of.]ackson v. Genesis Health Ventures, 23 A.3d 1287 (Del. 2011); Gen. Motors Corp.
v. Willis, 2000 WL 1611067, at *2 (Del. Super. Sep. 5, 2000); Chrysler Corp. v. Kaschalk, 1999
WL 458792, at *3 (Del. Super. June 16, 1999).
" Fountain v. McDona[a'S, 2016 Del. Super., Lexis 308, at 20 (June 30, 2016), affd 2017 WL
1081010, 2017 Del. Lexis 126 (Del. 2017)

8

First, it asserts that the retirement issue is derivative to the general
claim that Claimant was no longer disabled and no longer entitled to disability
benefits Second, Employer argues that Claimant should have known retirement
was an issue as it was mentioned at several depositions in the testimony of
Employer’s occupational therapist, and Claimant even addressed questions
concerning the retirement issue to these witnesses Third, Employer argues that, to
the extent there was any ambiguity, it was dispelled by Employer’s counsel’s
letter, which specifically raised the issue and cured any procedural problem. l
disagree with these contentions

ln my opinion, the primary issue in any case must be directly raised in
the pleadings Raising the issue by implication is insufficient Board Rules
provide several steps for either party to provide notice of their claims Employer’s
presenting the allegation in its closing argument is much too late.

Employer cites Yellow Frez`ght System, Inc. v. Bczrns12 in support of its
position, in which the roles of claimant and employer were reversed. ln Yellow
Freight employer claimed that claimant raised a legal issue for the first time at the
hearing in the case. The Court in Yellow Freight found that employer should have

been familiar with claimant’s argument, and refused to impose a hyper-technical

'2 1999 WL 167780 (Del. Super., March 5, 1999)

interpretation of Board rules This case is distinguishable from Yellow Freight in
that, here, the retirement allegation at issue was the primary claim, and an
interpretation of Board Rules requiring it to be articulated in pleadings is not-
hyper technical, but based upon the Board Rules’ express terms Thus l find
Yellow Frez'ght inapposite.

Had Employer been as clear in its pleadings as it was in counsel’s
letter of February 28, 2018 (in which she expressly raised the issue), the result in
this appeal would have been different. That letter came after the first day of the
hearing, after Employer had rested its case, and after depositions had been
completed. The express articulation of the retirement issue came too late.

1 also reject the claim that Claimant should have divined the issue
from the general claims This claim of Employer asks too much and gives too
little.

ln my opinion, as a result of the lack of notice the parties failed to
appropriately develop the retirement issue. l cannot discern the Board’s thinking
on this procedural issue as the Board never addressed it.

2. Did the Board Properly Determine
the Retirement Issue?

Claimant contends the Board made findings inconsistent with the

evidence and not supported by substantial evidence concerning retirementl

10

Claimant discusses in her argument distinctions between testimony and the Board
findings The discussion illustrates to me the failure to develop the record as to
the retirement issue. Given my decision on the first issue, 1 do not need to address
these contentions

3. Issues Concerning Barbara
Stevenson’s Testimony.

The parties spent considerable effort exploring why certain parts of
Ms. Stevenson’s reports were not initially supplied to Claimant, and her testimony
concerning these missing parts Claimant correctly contends the missing parts
would have provided fruitful grounds to cross-examine Ms. Stevenson. l note that
none of these issues, facts or questions relate to the primary issue of retirement
Claimant further alleges that Ms. Stevenson committed perjury, and Employer’s
counsel ethical violations I disagree and believe the Industrial Accident Board
correctly resolved these issues Briefly, l believe the record shows Ms. Stevenson
was honestly confused by certain questions ln my opinion, the Board correctly
allowed Ms Stevenson’s testimony and rejected the claims for sanctions

l address these claims because they were accompanied by heated
rhetoric by counsel, and an uncivil comment by Employer’s counsel. Although l

understand emotion in the throes of a contentious case, l expect better.

11

Remedy

Claimant asks me to remand this case for decision by the Board,
without considering the retirement issue, on the existing record. l decline to do so
for several reasons Claimant’s position is inconsistent with her claim that the
lack of notice resulted in her not having the opportunity to fully develop the
record. l also think it would be unfair at this stage to deny Employer the
opportunity to argue the retirement issue. Both parties now have more than
adequate notice of it, and the opportunity to present whatever additional evidence
they decide appropriate. Thus a full hearing on all issues should be held by the
Board,

Finally, Claimant has prevailed on one of the three arguments she
raised and is claiming fees for this appeal. l arn directing Claimant to provide to
me, within twenty days of this Order, an affidavit providing a detailed breakdown
of the time spent on the three issues, as well as a letter outlining whether l should
award fees only for the issue upon which Claimant prevailed, or all issues13
Employer shall provide its response within twenty days, and Claimant shall reply
within ten days thereafter.

l am entering this opinion as my Order.

19 Del. C. §2350(1).
12

