SUPERIOR COURT
OF THE
STATE OF DELAWARE

RICHARD F. STOKES SUSSEX COUNTY COURTHOUSE
JUDGE 1 THE CIRCLE, sUITE 2

GEORGETOWN, DE 19947

TELEPHONE (302) 856-5264

February 7, 2018

Walt F. Schmittinger, Esq.
Schmittinger & Rodriguez, P.A.
414 S. State Street

P.O. Box 497

Dover, Delaware 19903

Andrew J. Carmine, Esq.
Elzufon Austin & Mondell, P.A.
300 Delaware Avenue, Suite 1700
P.O. Box 1630
Wilmington, Delaware 19899
RE: Magdalena Guardaa'o v. R00s Foods, Inc.,
C.A. No.: Sl7A-05-003 RFS

Dear Counsel:

This is my decision on Magdalena Guardado’s (“Guardado”) appeal of the Industrial
Accident Board’s decision terminating her total disability benefits.l Guardado was employed by
Roos Foods, Inc. (“Roos Foods”) for approximately five years. During that time Guardado was
employed as a machine manager On June 22, 2010, Guardado was involved in a work-related
accident. Guardado injured her left wrist when she slipped on the tloor. Guardado was out of

work until the summer of 2013 when she was placed on total disability. On June 18, 2014,

 

lThe Board also denied Guardado’s claim for partial disability benefits, attomey’s fees, and medical witness fees.
Claimant does not contest in her brief the denial of the partial disability benefits, attomey’s fees, or medical witness

fees. As such, they will not be addressed
l

Guardado underwent surgery, consisting of a left wrist fusion performed by Dr. Richard DuShuttle.
Dr. Dushuttle released Guardado to light-duty, one-handed work on August 7, 2014.

Roos Food 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. Dr. Eric Schwartz, who testified on behalf of the employer,
agreed that Guardado could return to work in a one-handed light duty capacity. Roos Food also
offered the testimony of Ellen Lock, a vocational case manager. Ms. Lock prepared a labor market
survey in which she identified eight specific jobs which she believed Guardado could perform.
Lock was aware of Guardado’s job history, her inability to speak English, educational history, and
her physical limitations with her left hand. Lock was not aware of Guardado’s legal inability to
work in the United States. Lock acknowledged that two of the jobs in the labor market survey
were probably not suitable for Guardado due to her physical limitations

Dr. DuShuttle, who testified on behalf of Guardado, stated that the impairment to the left
hand is permanent. Dr. DuShuttle believes that Guardado’s use of her left hand is only good for
simple activities, such as grasping light objects and assisting her right hand.

Guardado testified before the Board. Guardado was 38 years old at the time of the first
hearing. She was born in El Salvador and came to the United States in 2004. Guardado’s work
history was limited to her job with Roos Food. She testified that she obtained the equivalent of a
high school diploma in her native El Salvador. Guardado further testified that she does not speak
or write English.

The Board denied Roos Foods’ Petition for Termination of Benefits in a decision dated

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.2
Roos Foods appealed the April 7, 2015 Board decision to this Court. This Court affirmed the
Board’s decision reasoning 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 was based upon substantial evidence and free
from legal error.3 Roos Foods then appealed to the Delaware Supreme Court.

On November 29, 2016, the Supreme Court of Delaware issued its opinion reversing and
remanding the judgment of the Superior Court.4 The Supreme Court addressed two questions on
appeal; first, whether an injured worker’s immigration status alone renders her a prima facie
displaced worker, and second, whether the Board properly found that the employer failed to meet
its burden of showing regular employment opportunities within the worker’s capabilities because
its evidence failed to take into account the worker’s undocumented status. The Supreme Court
held that a claimant’s status as an undocumented worker is not relevant to a determination of
whether the claimant is a prima facie displaced worker, but can be used as a factor when the
claimant Seeks to show that she is an actually displaced worker.5 The Supreme Court also held
that if the claimant is successful in establishing that she is a displaced worker, the employer’s
burden of showing availability to the claimant of regular employment within her capabilities must
take into account her status as an undocumented worker.6 The Supreme Court found that Board’s

finding that the claimant was a prima facie displaced worker on the basis of her undocumented

 

2 Guara’aa’o v. Roos F00a's, I.A.B. Hearing No. 1405006 (April 7, 2015).
3 Roos Food v. Guardado, 2016 WL 355002 (Del. Super. Jan. 26, 2016).
4 Roos Foods v. Guardado, 152 A.3d 114 (Del. 2016).

5 Ia'. at 122.

6 Id.

status alone constituted legal error.7 As such, the Supreme Court reversed the judgment of the
Board and remanded the matter back to this Court with instructions that it remand the matter back
to the Board for a rehearing
The Remand Hearing

A hearing on remand before the Board was held on April 27, 2017. Pursuant to 19 Del. C.
§ 2348(f), the Board considered all evidence that was presented at the original hearing in addition
to any new evidence and legal arguments the parties decided to make. The parties stipulated that
Guardado’s average weekly wage at the time of the injury was $306.00 per week, with a
compensation rate of $204.00 per week. The parties further stipulated that the medical testimony
from the original hearing, and the Board’s findings regarding Guardado’s medical/physical ability
to work, remained unchanged from the prior hearing No new medical evidence was presented at
the remand hearing. Three witnesses testified at the remand hearing

Dr. Desmond Toohey testified on behalf of Roos Foods. Dr. Toohey is an Assistant
Professor of Economics at the University of Delaware. Dr. Toohey testified that his primary fields
of research were in labor economics and economic demography.8 In preparation for the hearing,
Dr. Toohey prepared a report regarding jobs that exist in Delaware for undocumented workers.
The report was titled “The Distribution of Unauthorized Immigrants Across Jobs in the Delaware

Labor Market”. In preparing his report, Dr. Toohey reviewed the two studies cited by the Supreme

Court in its decision9 and then performed an independent analysis. ln performing his analysis, Dr.

 

7 Ia'.
8 Dr. Toohey testified that “labor economics in general is the study of labor markets and how workers and
employers interact, how they sort into jobs, how they find, lose jobs and how education maps into finding
employment for workers. And then economic demography is the study of populations, migration, aging, mortality,
anything about that sort of how groups of people interact, move and live.” Guardado v. Roos Foods, I.A.B. Hearing
No. 1405006, at 15 (April 27, 2017) (Transcript).
9 Roos Foods v. Guardado, 152 A.3d 114, 121-122 (Del. 2016).

4

Toohey 1) attempted to establish roughly how many undocumented immigrants are in Delaware
and then 2) figure out if they are employed and in what kinds of jobs they are employed. Dr.
Toohey also acknowledged that there are inherent weaknesses in trying to determine the exact
number of undocumented workers in the State. Dr. Toohey estimated that there are approximately
11.8 million unauthorized immigrants in the United States and roughly 28,000 undocumented
immigrants in the State of Delaware.10 Dr. Toohey estimated that there are between 20,000 and
25,000 unauthorized immigrants working in Delaware. 11

In evaluating the specific jobs listed in the labor market survey, Dr.Toohey looked at the
occupation and the industry that were represented For each of the jobs listed on the labor market
survey, Dr. Toohey determined the number of unauthorized immigrants working in the
corresponding occupation, as well as the corresponding industry.12 Table l of Dr. Toohey’s report
indicates that the following occupations have the following distribution of unauthorized
immigrants: management, business, science and arts has 4,000; service has 5,000; sales and office
has 1,000; natural resources, construction, and maintenance has 4,000; and, production,
transportation, and material moving has 8,000.13 Table ll of Dr. Toohey’s report indicates that the
listed industries have the following distribution of unauthorized immigrants: construction has
4,000; manufacturing has 5,000; retail trade has 4,000; finance, insurance, real estate, rental, and

leasing has less than 1,000; professional, scientific, management, administrative, and waste

 

10 Dr. Toohey’s Report at 5.
ll Dr. Toohey’s Report at 2.
12 According to Dr. Toohey’s report, “occupation describes the tasks performed by an employee in the completion
of the job and industry describes the business in which the employer operates.” Dr. Toohey’s Report at 8.
13 Dr. Toohey’s Report at 14.
5

management has 2,000; educational services, health care, and social assistance has 2,000; and, arts,
entertainment, recreation, accommodation, and food services has 4,000.

Dr. Toohey reviewed each of the jobs listed in the labor market survey prepared by Ellen
Lock, compared those jobs to his research, and determined the number of unauthorized immigrants
who worked in the corresponding occupations and industries. For example, the clerk position at
El Mercadito Convenience Store listed in the labor market survey involved waiting on customers,
working a cash register, stocking shelves, and performing cleaning duties.14 Dr. Toohey found
that these tasks were all part of the “sales and office” occupation category which employs
approximately 1,000 unauthorized immigrants in Delaware.15 As a convenience store, it is located
in the retail trade industry which employs approximately 4,000 unauthorized immigrants in
Delaware. Dr. Toohey then performed a similar analysis on the remaining jobs in the labor market
survey.16 Based upon his research and analysis, Dr. Toohey concluded that there are thousands of
undocumented immigrants employed in Delaware in each of the occupations and industries
corresponding to the jobs listed in the labor market survey.17 Dr. Toohey found the unauthorized
immigrant population to be well-represented in the labor market survey.18

On cross-examination, Dr. Toohey acknowledged that the margin of error in his estimated
numbers is difficult to ascertain but could be as high as twenty percent. Even with this high margin
of error, Dr. Toohey testified that he is still certain that there are thousands of jobs available in

each of the occupation and industry categories Dr. Toohey also did not correlate workers with

 

14 Dr. Toohey’s Report at 9.
15 Ia'.

16 Id.

17 Dr. Toohey’s Report at 12.
18 Id.

disabilities in his studies Dr. Toohey did acknowledge that many of his numbers included
undocumented workers that are fluent in the English language Dr. Toohey expressed no opinion
about Guardado in particular and her prospects of being employed.

Ellen Lock, a vocational case manager employed by Coventry, testified on behalf of Roos
Foods Lock performed a new labor market survey. Lock testified that the survey was a
representative sample of positions available to Guardado. Lock testified that she was aware of
Guardado’s educational history, work history, her inability to read or write the English language,
that she was 38 years old at the time of the first labor market survey, and her physical limitations
Lock identified 17 potential positions in the job market Where Guardado would not have to
communicate in the English language, positions that were entry level in nature, that do not require
previous vocational experience, and that were physically appropriate Lock personally viewed
each of the jobs listed in the labor market survey. Lock discussed with prospective employers
Guardado’s physical limitations and her inability to communicate in the English language Lock
believes that the need for Spanish speaking employees has risen over the years Lock testified that
she is confident that Guardado could find work within her physical restrictions and vocational
qualifications

Lock is aware that Guardado conducted a job search of her own, which included six of the
seventeen jobs in the labor market survey. Guardado presented documentation to Lock that
indicated that she applied to six jobs on February 13, 2017, and five jobs in the month of April.
Lock testified that she is not aware of whether or not those employers had specifically responded
to Guardado. Lock testified that as a rule of thumb, she likes to see people apply to ten jobs per
week on average. Based upon the jobs listed in the labor market survey, Lock concluded that

Guardado has an average earning capacity of $330.00 per week.
7

Lock testified that the restaurant jobs she found available deal with large quantities of food
and agreed Guardado might be at a disadvantage in that environment relative to other non-
restricted employees Lock testified that some of the housekeeping positions require the use of a
broom or a mop and Guardado would need both' hands to perform that task. Lock suggested
Guardado could use her non-dominant hand to assist her as a guide even though Dr. Schwartz
rejected that idea in the previous labor market survey. Lock stated that even though Guardado
might be at a disadvantage, the employers she spoke with were willing to hire her even with her
limitations Lock did not discuss Guardado’s undocumented status With any of the employers
Lock testified that she believed 30 minutes was a reasonable amount of time spent commuting to
work. Three of the jobs Lock identified in her survey were located in Pennsylvania and over one
hour away. Lock identified the jobs for the labor market survey during the months of January,
February and March 2017, At the time of the hearing, Lock testified that eight of the 17 jobs were
still available Lock acknowledged that employers are more willing to hire someone with
experience than without experience

Guardado is 40 years old. She 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. Guardado testified that she is starting to learn how to use a computer.
Guardado’s work history consists of the five years she spent at Roos Foods Guardado only speaks
Spanish, but testified that she has started going to school two nights a week in order to learn
English. Guardado is not able to legally work in the United States. Guardado testified that there
has been no change in her medical restrictions although she started wearing a brace on her left
wrist. At the time of the hearing, Guardado testified that she is only taking ibuprofen for pain.

Guardado testified that she has reviewed the labor market survey and has looked for employment
8

within her medical restrictions Guardado has only applied to restaurant jobs Guardado stated
she has not heard back from any of the jobs to which she applied but that she wants to work.
THE REMAND DECISION
The Board issued its decision on May 18, 2017, granting Roos Foods’ Petition for Review.
In finding that Guardado was no longer entitled to total disability benefits the Board found l)
Guardado was physically capable of working, 2) that she was a prima facie displaced worker, and
3) Roos Foods successfully established the availability of jobs within Guardado’s capabilities The
Board also did not award partial disability benefits, attomey’s fees, or medical witness fees
Guardado now appeals the Board’s decision to this Court alleging that its finding that Roos Foods
successfully established the availability of jobs within her capabilities and restrictions was not
based upon substantial evidence or free from legal error. 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 whether the agency made and errors of law.19 Substantial
evidence means such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion.20 The appellate court does not weigh the evidence, determine questions of

 

19 General Motors v. McNemar, 202A.2d 803, 805 (Del. 1964); General Motors v. Freemari, 164 A.2d 686 (Del.
1960).
20 Oceanport Ina'. 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).

9

credibility, or make its own factual findings.21 lt merely determines if the evidence is legally
adequate to support the agency’s factual findings.22 We review errors of law de riov0.23 Absent
errors of law, the Board’s decision will not be disturbed where there is substantial evidence to

support its conclusions24

DISCUSSION

Guardado alleges that Board erred in terminating her total disability benefits because the
evidence submitted does not establish the availability of work for her within her capabilities and
restrictions In a total disability case, the employer is initially required to show that the claimant
is not totally incapacitated (i.e, demonstrate “medical employability”).25 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 unsuccessful, efforts to secure employment which have been
unsuccessful because of the injury (i.e., actual displacement”).26 As a rebuttal, the employer may
then present evidence showing that there are regilar employment opportunities within the
claimant’s capabilities.27

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 granting Roos Foods’ Petition for Review. First, the Board found that Roos

Foods met its initial burden that Guardado was medically employable Second, the Board found

 

21 Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
22 29 Del. C. § 10142(d).
23 Person-Gaines v. Pepco Holdz'ngs Inc., 981 A.2d 1159, 1161 (Del. 2009).
24 Dallachiesa v. General Motors Corp., 140 A.2d 137 (Del. Super. 1958).
25 Howell v. Supermarkets General Corp., 340 A.2d 833, 835 (Del. 1975).
26 Id.
27 Id.

10

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 presented enough
evidence showing that there were regular employment opportunities within Guardado’s
capabilities and limitations Guardado argues that Board erred in finding that there were regular
employment opportunities available to her within her capabilities and limitations
I. Medically Employable
The Board’s finding that Guardado is medically employable is based upon substantial
evidence and free from legal error. The parties stipulated that Guardado is physically capable of
returning to work with restrictions The parties further stipulated that Guardado’s medical and
physical ability to work remains unchanged from the original hearing. This evidence is
uncontradicted and clearly established that Guardado is medically employable
II. Displaced Worker
The Board’s finding that 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 by 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.”28 An injured worker can be considered displaced either on a prima facie basis or
through showing “actual” displacement.29 The critical elements to be considered in finding prima

facie displacement are a person’s age, mental capacity, education, and training.30 Under normal

 

28 Torres v. Allen Family Foods, 672 A.2d 26, 30 (Del. 1996) citing Ham v. Chrysler Corp., 231A.2d 258, 261 (Del.
1967).
29 Because the Board found that Guardado was prima facie displaced, it did not need to make a finding on actual
displacement, however, it stated that if Claimant was not prima facie displaced, the evidence presented would have
been insufficient to warrant a finding of actual displacement
30 Chrysler Corp., v. Dujf, 314 A.2d 915, 916 (Del. 1973).

l l

circumstances to qualify as a prima facie displaced worker, one must have only worked as an
unskilled laborer in the general labor field.31

The undisputed testimony before the Board established that Guardado is 1) 40 years-old,
2) unskilled, 3) only speaks Spanish, 4) has the equivalent of a high school degree from El
Salvador, 5) can only use her right hand for light-duty work and her left hand as an “assistance
hand,” 6) wears a brace on her left hand, 7) has only worked for five years, 8) started taking English
classes but does not speak it yet, and 9) learned to use a smartphone but is still learning to use a
computer. Guardado’s job at Roos Foods was classified as an unskilled job in production
assembly. The Board recited all of these facts in its written opinion concluding that based upon
her limited education and minimal work experience as an unskilled laborer with a one hand work
restriction, Guardado continues to be a prima facie displaced worker. The evidence certainly
supports the Board’s finding that Guardado is a prima facie displaced worker. The Board’s finding
that Guardado was a prima facie displaced worker is based upon substantial evidence and free
from legal error.

III. Availability of Regular Employment

The Board’s finding that Roos Food successfully demonstrated the availability of jobs
within Guardado’s work capabilities is based upon substantial evidence and free from legal error.
“If the employee succeeds in showing that she is a prima facie or an actually displaced worker, the
burden shifts to the employer “to show availability to the worker, thus ‘displaced”, of regular
employment within [her] capabilities.””32 As the Superior Court stated in Abex, “Common sense

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

 

31 See Vasquez v. Abex Corp., 618 A.2d 91 (Del. 1992)(Table), 1992 WL 397454, at *2 (Del. Nov. 5, 1992).
32 Roos Foods v. Guardado, 152 A.3d 114, 119 (Del. 2016).
12

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 rcac ” 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.” “If a claimant is successful in establishing that she is a displaced worker, the employer’s
burden of showing availability to the claimant of regular employment within her capabilities must
take into account her status as an undocumented worker.”33

On appeal, the Supreme Court was presented with an issue of first impression: whether an
employer can meet its burden of proof that work is available to an undocumented worker and what
constitutes sufficient evidence to satisfy that burden. The Supreme Court recognized the obvious
challenges of gathering evidence on the existence of work available to undocumented workers
The Supreme Court held that “using reliable social sciences methods, there should be no barrier to
employers in presenting evidence regarding the prevalence of undocumented workers in certain
types of jobs in certain regions, and combining that with more specific information about actual
jobs in those categories.”34 “So long as the evidence meets the useful tests of reliability and
relevancy, the Board has to give it weight in making the ultimate determination whether an injured
worker has employment available to her.”35 Nothing in “the decision of the Superior Court in this
case suggests that employers must present affidavits from employers confessing to their
willingness to knowingly violate the law by employing undocumented workers.”36 “Rather, what

is required is that an employer who has the burden of showing that jobs are actually available for

 

33 Roos Foods v. Guardado, 152 A.3d 114, 122 (Del. 2016).
34 Id. at 121.
35 Id. at 121-22.
36 Id. at 122.
13

an undocumented worker address that reality by presenting reliable market evidence that
employment within the worker’s capabilities is available to undocumented workers.”37

In order to meet its burden, Roos Foods must demonstrate to the Board l) the availability
of jobs available to Guardado and 2) the jobs are within the categories of occupations and industries
employing undocumented workers in Delaware To meet the first element, Roos Foods presented
the testimony of Lock. Lock presented an updated labor market survey to the Board which outlined
l7 prospective jobs within Guardado’s work capabilities and physical restrictions The jobs
outlined by the survey included working as a clerk/cashier in a convenience store, kitchen
preparatory work, a picker on a mushroom fann, and cleaning services The prospective jobs
covered several different industries Lock indicated that the jobs on the labor market survey were
entry level positions that did not require work experience Lock was aware of Guardado’s job
history, her inability to speak English, educational history, and her physical limitations Lock was
also aware of Guardado’s undocumented worker status Lock testified that she had discussed
Guardado’s work restrictions with the prospective employers and believed that Guardado could
perform the jobs listed in the labor market survey. Lock stated that she did not discuss Guardado’s
undocumented status with the prospective employers The Board agreed with the decision of Lock
to not inform prospective employers about Guardado’s undocumented worker status because it
would be unrealistic to have employers admit that they may illegally hire undocumented workers

The Board found the updated labor market survey provided reliable and sufficient information

regarding actual jobs that were available to Guardado within her capabilities and limitations

 

37 Id.
14

Roos Foods must also demonstrate the jobs are within the categories of occupations and
industries employing undocumented workers in Delaware In order to meets its burden, Roos Food
presented the testimony of Dr. Toohey. Dr. Toohey provided a report he authored, dated March
27, 2017, and titled T he Distribution of Unauthorized Immigrants Across Jobs in the Delaware
Labor Market. This report presented evidence indicating that there are thousands of jobs available
in each of the occupations and industries that are available for undocumented workers in Delaware
For example, Dr. Toohey’s research established that there are approximately 5,000 undocumented
workers in service occupations in Delaware 4,000 undocumented workers in the retail trade
industry, and 4,000 undocumented workers in the construction industry. The Board found that
Roos Foods, through the testimony of Dr. Toohey, provided reliable and relevant evidence on the
prevalence of undocumented workers in Delaware in the specific occupations and industries listed
on the labor market survey.

Combining the labor market survey by Lock and the testimony of Dr. Toohey, the Board
held that Roos Foods was successful in establishing the appropriate nexus between actual jobs
available on the labor market survey and the prevalence of undocumented workers in those job
categories in Delaware Therefore, the Board found that Roos Foods had successfully rebutted
Guardado’s showing that she was a prima facie displaced worker. As a result, the Board
terminated Guardado’s total disability status

The Board’s decision to terminate Guardado’s total disability benefits is based upon
substantial evidence and free from legal error. The Supreme Court’s decision in this case provided

the framework for the Board to review the evidence presented by Roos Foods38 While Roos Foods

 

33 Roos Foods v. Guardado, 152 A.3d 114 (Del. 2016).
15

was not required to present affidavits from employers showing that they were willing to violate
the law and hire undocumented workers, they had to “present reliable market evidence that
employment within the worker’s capabilities is available to undocumented workers.”39 Lock
presented testimony that jobs were available for Guardado within her capabilities and limitations
Lock presented jobs in different areas of the labor market. At the time of the remand hearing, eight
of the jobs were still available Dr. Toohey presented statistical evidence that showed that
undocumented workers are employed throughout Delaware in occupations and industries that
appeared in the labor market survey. Roos Foods has complied with the Supreme Court’s
directives on presenting “reliable market evidence that employment within the worker’s
,,40

capabilities is available to undocumented workers

CONCLUSION

The Board’s finding that l) Guardado was medically able to work with restrictions, 2) was
a prima facie displaced worker, and 3) Roos Foods successfully established work was available to
Guardado within her restrictions and qualifications is based upon substantial evidence and free

from legal error.41

The Industrial Accident Board’s Decision is AFFIRMED.

IT IS SO ORDERED.

 

39 Id. at 122.

40 Id. at 122.

41 The Board found it necessary to state that even though they found Guardado was a prima facie displaced worker,
she would not have qualified as actually displaced. The Board noted that Guardado applied for eleven jobs, four of
which were part of the labor market survey over the course of February, March, and April 2017. All of the jobs
Guardado applied to were part of the restaurant industry. The Board found this job search to be minimal and
unnecessarily restricted to one industry. If the Board did not find Guardado prima facie displaced, they noted the
evidence would not have supported a finding of actual displacement This Court agrees With the Board.

16

 

cc: Prothonotary’s Office

17

