         IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                   IN AND FOR NEW CASTLE COUNTY

                                         )
CURTIS AIKEN JR.,                        )
                                         )
            Appellant,                   )
                                         )
            v.                           )        C.A. No. N16A-04-008 JAP
                                         )
S&T TRUCKING CO.,                        )
MIKE ATACK, and                          )
UNEMPLOYMENT INSURANCE                   )
APPEAL BOARD,                            )
                                         )
            Appellees.                   )


                           MEMORANDUM OPINION

      This is one of those rare cases where the court finds that a decision of

the Unemployment Insurance Appeals Board is not supported by substantial

evidence.

      Mr. Aiken, an employee of S&T Trucking, was injured on the job and

missed several months of work because of his injuries. When he was medically

cleared to return to work, he reported to S&T Trucking where he was told there

was no work for him because he had ostensibly quit. After several attempts to

get his job back with S&T Trucking, Mr. Aiken began to look for work with

other employers. The Board held that he was not eligible for unemployment

benefits because he sought alternative employment rather than returning to

work with S&T Trucking.        The Board’s conclusion is not supported by

substantial evidence; indeed, it is supported by virtually no evidence at all. The
court therefore REVERSES the Board’s decision and holds that Mr. Aiken is

entitled to unemployment benefits pursuant to 19 Del. C. § 3314.


                                 Background

      Mr. Aiken worked as a dump truck driver for S&T Trucking (“S&T”) from

June 23, 2014 until April 8, 2015 when he suffered a work-related injury. Mr.

Aiken filed for and obtained Workers Compensation Benefits from S&T’s

carrier. For a few months he was completely disabled, but in July, 2015, he

was cleared to return to S&T for clerical work. S&T told him, however, that it

had no clerical work it could offer him, so Mr. Aiken remained off work. In

September Mr. Aiken was cleared to return to work at his regular position with

a one-day-on-two-day-off schedule.   He again sought to return to work with

S&T, but was told there was no work available which would accommodate his

limited schedule. A month later, on October 22, Mr. Aiken was finally cleared

to return to work on an unrestricted basis. He personally visited S&T to inform

them of his full-time work clearance, only to be eventually told there was no

work for him because he had ostensibly resigned.      In fact, S&T was wrong

about Mr. Aiken’s purported resignation. Apparently someone associated with

S&T’s Workers Compensation carrier told S&T that Mr. Aiken would resign

from S&T as part of his commutation agreement with the carrier.           That

agreement contains no such resignation.

      Mr. Aiken was perplexed about his “resignation,” and he continued to

make unsuccessful efforts to straighten out the matter with S&T so he could

get his job back. S&T, for its part, did not return Mr. Aiken’s telephone calls

                                      2
and inquiries because it was erroneously advised by its Workers Compensation

carrier that it should not speak to Mr. Aiken while the Workers Compensation

matter was being resolved. Eventually Mr. Aiken, who had a family to support,

sought to find some sort of employment elsewhere.

      The UIAB found that Mr. Aiken was not eligible for benefits because he

failed to contact S&T for six weeks after being cleared for work and instead

sought employment elsewhere. Specifically:

            The Board finds that Claimant voluntarily separated
            from his employment. The Claimant was cleared to
            return to work on October 22, 2015. The Appeals
            Referee found that Claimant failed to return to work
            for approximately 6 weeks from the date he was
            cleared.   The Appeals Referee further found that
            Claimant sought employment elsewhere before
            deciding to return to the Employer. Claimant disputed
            those facts before the Board; however, a review of the
            record below [before the Appeals Referee] showed that
            Claimant did, in fact, testify under oath that he was
            trying to look for a job on his own. Based on this
            testimony and evidence, the Board finds that claimant
            did not return to work after being cleared because he
            was looking for alternative employment.

The Board interpreted this six-week gap as the functional equivalent of a

voluntary termination without good cause. Consequently, Mr. Aiken was

disqualified from receiving unemployment benefits pursuant to 19 Del. C. §

3314(1).

                              Standard of Review

      In reviewing a decision on appeal from the UIAB, pursuant to 19 Del. C. §

3323(a), “the findings of the Unemployment Insurance Appeal Board as to the

facts, if supported by evidence and in the absence of fraud, shall be conclusive,



                                       3
and the jurisdiction of the Court shall be confined to questions of law.” The

function of the reviewing court is limited to determining whether substantial

evidence supports the Board's decision regarding findings of fact and

conclusions of law and is free from legal error.1 Substantial evidence is that

evidence from which an agency fairly and reasonably could reach the

conclusion it did.2

       When reviewing a decision on appeal from an agency, the Superior Court

does not weigh the evidence, determine questions of credibility, or make its

own factual findings.3 The Court's responsibility is merely to determine if the

evidence is legally adequate to support the agency's factual findings.4 If the

Board's decision is supported by substantial evidence, the Court must sustain

the decision of the Board, even though it would have decided otherwise had it

come before it in the first instance.5


                                          Analysis

       The conclusions of both the Referee and the Board are unsupported by

substantial evidence.       In fact, they are contradicted by evidence from S&T.

Because the court is convinced that the Board’s conclusion is unsupported by

substantial evidence, it will necessarily discuss the three key factual findings of

the Board separately, and comment on their inaccuracies:

1   29 Del. C. § 10142(d).
2   Olney v. Cooch, 425 A.2d 610, 614 (Del. Super. 1981) (“. . . it is more than a scintilla but
less than a preponderance.”); Nat’l Cash Register v. Riner, 424 A.2d 669, 674–75 (Del. Super.
1980).
3   Canyon Constr. v. Trotter, 2003 WL 1387137 (Del. Super. Mar. 5, 2003); Johnson v. Chrysler
Corp., 213 A.2d 64, 66 (Del. 1965).
4   29 Del. C. § 10142(d).
5   Kreshtool v. Delmarva Power & Light Co., 310 A.2d 649, 653 (Del. Super. 1973).


                                               4
       1. “The Appeals Referee found that Claimant failed to contact or
       return to work for approximately 6 weeks from the date he was
       cleared [to return to work].”6

       The Board noted that the Referee found that Mr. Aiken failed to contact

or return to work for approximately six weeks. It difficult to understand what

evidence supports this finding because the Board did not cite to the record in

this regard. Rather, it simply referred to the blanket findings of the Appeals

Referee. The uncontradicted record shows that Mr. Aiken contacted S&T the

very day he was cleared to return to work, and the overwhelming (if not

uncontradicted) evidence is that Mr. Aiken began to look for work elsewhere

only after S&T did not respond to his repeated inquiries about restarting work.

       According to Mr. Aiken, when he was cleared to return to work by his

doctor on October 22, 2015 he went to S&T and spoke to an employee, a young

lady named “Vicki.”7 She told Mr. Aiken that he needed to contact “Mike,”

presumably Michael Atack, who was S&T’s only witness and representative.

               “I tried to call Mike and Mike never returned my call. I
               went to the office and talked to another guy named
               Mike and see what’s going on. He never returned my
               call. I went up there myself and talked to Mike and
               Vicki, and nobody told me anything.”8

While Michael Atack denied ever speaking to Mr. Aiken on October 22, there is

no significance to this because (a) Mr. Atack testified he was not there, and (b)

Mr. Aiken never said he spoke to Mr. Atack that day. What is of considerable

significance, however, is Mr. Atack’s testimony that Mr. Aiken came into the


6   Bd. Op. at 2.
7   Bd. Tr. 5.
8   Id. at 5–6.


                                          5
office at the end of October looking to return to work and S&T had no job for

him:

               A month later, after speaking—after September 28th—
               he said he come in, in October, I’m not disputing that,
               asking for a job and we had no job for him.9

The Board did not refer to Mr. Atack’s testimony in this regard.

        The Board’s conclusion that Mr. Aiken failed to contact S&T is also

unsupported by the evidence.           Mr. Aiken testified of making repeated attempts

to contact S&T about returning to work to no avail.10 In fact, his testimony is

corroborated by S&T’s representative. Mr. Atack acknowledged that Mr. Aiken

was dropping off doctors notes at S&T:

               He did bring in doctor’s notes all the time about his
               condition. * * * [H]e did drop off notes, I do know that
               because I have copies of them here.11

        Mr. Atack also confirmed that Mr. Aiken telephoned him and he did not

return Mr. Aiken’s calls. In order to understand this, it is necessary to briefly

consider some uncontested background information. At the time of many of

these events Mr. Aiken’s Workers Compensation claim with S&T’s carrier had

not been resolved, so the Carrier told S&T not to talk to him.                     Hence, S&T

never returned his calls:

               The insurance company advised us not to speak to the
               employee because of the attorney-client privilege and
               the insurance company. That is the reason that I
               didn’t return Mr. Aiken’s calls.12


9    Id. at 11.
10   Id. at 6 (Mr. Aiken: “I tried everything, you know, and nobody ever got back to me.”).
11   Ref. Tr. at 7.
12   Id. at 12–13.


                                                 6
Just as the Board did not consider Mr. Atack’s testimony regarding Mr. Aiken’s

October 22 communications with S&T employees, the Board also did not

address any of the above evidence regarding Mr. Aiken’s subsequent efforts to

return to S&T.

       S&T’s refusal to return Mr. Aiken’s calls is also explained by S&T’s

mistaken belief that Mr. Aiken resigned as part of his Workers Compensation

commutation agreement.            Mr. Atack testified that “in that settlement, he

resigned. Part of that settlement says he resigned,”13 thus explaining why S&T

did not offer him employment when he came to the company in the fall:

              I guess we assumed that this resignation—he was
              going to resign with the settlement. * * * And that was
              our impression. A month after, after speaking—after
              September 28th—he said he come in . . . asking for a
              job, and we had no job for him.”14

Mr. Atack, believing that Mr. Aiken’s resignation was a part of the settlement,

faxed the Referee a copy of the settlement agreement. Nowhere in the

agreement does it mention Mr. Aiken’s tenure with S&T. Neither the Board nor

the Referee included this fact in its analysis.


       2. The Referee’s conclusion Employer had a position for the
       Claimant.15

       An essential, but unspoken element in the Board’s analysis is that S&T

had a position available for Mr. Aiken when he was cleared to return to work.



13  Id. at 7. There is similar testimony from Mr. Atack elsewhere in the record. At another
point the Referee asked him “your testimony is that it was part of the settlement that he
essentially voluntarily quit?” whereupon Mr. Atack responded “yes.” Id. at 8.
14  Bd. Tr. at 11.
15  Ref. Op. at 2.


                                               7
There is no evidence, however, that S&T had a position available for Mr. Aiken.

As mentioned earlier, Mr. Atack testified that S&T had no job for Mr. Aiken:

               A month later, after speaking—after September 28th—
               he said he come in, in October, I’m not disputing that,
               asking for a job and we had no job for him.16

Further, at the hearing before the Referee, Mr. Atack testified:

               Somewhere along the line, from the day of the accident
               to the day of his settlement [the Workers’
               Compensation commutation in November], there was
               an improvement in his health and I believe he did call
               me and ask if there was any openings, any work
               available and the only openings we had was in the
               tractor trailer division.17

This is not evidence that S&T had a position available for Mr. Aiken.

Presumably drivers in S&T’s tractor trailer division drive tractor trailers, and

the court takes judicial notice that in order to drive one, a driver must have a

Class A Commercial Driver’s License.         Importantly, Mr. Aiken was a dump

truck driver who need only possess a Class B Commercial Drivers License. The

only reasonable way this portion of Mr. Atack’s testimony can be understood,

therefore, is that the only openings at S&T were for tractor trailer drivers and

Mr. Aiken’s Class B license would not permit him to do that.

        3.  “The Appeals Referee further found that Claimant sought
        employment elsewhere before deciding to contact the Employer.”18

        The Referee found that Mr. Aiken did not contact S&T until after he

sought employment elsewhere and was unable to find any.19 The evidence does



16   Bd. Tr. at 11.
17   Ref. Tr. at 8.
18   Bd. Op. at 2.


                                         8
not support this finding. In fact, the only evidence presented on this point was

that Mr. Aiken, who had a family to feed, was forced to look for other

employment when he was told by S&T that he had resigned and there was no

work for him:

              A: I was told that someone said I voluntarily quit my
              job and I didn’t voluntarily quit my job. * * * I need my
              job. I didn’t voluntarily—I got a family to take care of.
              I wouldn’t do that.
                                       ***
              Q [By Mr. Atack]: [I]f someone needed a job and they
              was employable and they hadn’t resigned, why did it
              take them literally 5-6 weeks to contact us about
              employment. I mean, I think if it was me, I’d be there
              the next day.

              A: Well, I was trying to look for a job on my own. * * *
              I couldn’t find a job, so I had no choice, but to do what
              I had to do. I got a family to take care of, bills to pay
              and you know. I didn’t want to do it, but I had to do
              what I had to do.20

       Absent evidence to the contrary—as is the case here—Mr. Aiken, in

addition to continuing to contact S&T in an effort to get his job back, was

forced to look for work only because of S&T’s failure to communicate.


                                       Conclusion

       The court finds there is virtually no substantial evidence, let alone

substantial evidence, to support the Board’s finding that Mr. Aiken tried to find

alternative employment for six weeks and only contacted S&T after he was

unable to do so. Rather, the virtually uncontested evidence shows that:

19  The Referee held that “Claimant failed to contact or return for approximately 6 weeks.
Claimant sought employment elsewhere before deciding to contact the Employer.” (Ref. Op. at
2).
20  Ref. Tr. 10–11.


                                             9
          *     Mr. Aiken contacted S&T the day he was cleared to return to
                work.

          *     Mr. Aiken made several efforts to contact S&T after that.

          *     S&T was told by its Workers Compensation carrier not to
                speak with Mr. Aiken.

          *     S&T never returned Mr. Aiken’s calls.

          *     S&T erroneously believed that Mr. Aiken had resigned as
                part of his Workers Compensation commutation.

         *      S&T did not have any positions available for Mr. Aiken.

         The Delaware Supreme Court said it best in stating that “[a]lthough our

standard of review of a decision by the Board is deferential, it is not altogether

without teeth.”21 Substantial evidence is evidence from which an agency fairly

and reasonably could come to the conclusion it did. No such evidence was

adduced in this case. It therefore follows that the decision of the Board is

REVERSED.




December 20, 2016
                                                           John A. Parkins, Jr.
                                                           Superior Court Judge



oc:      Prothonotary

cc:      Curtis Aiken Jr., Pro Se Litigant, Bear, Delaware
         S&T Trucking Co., Mike Atack, Bear, Delaware
         Paige J. Schmittinger, Esquire, U.I.A.B., Wilmington, Delaware

21    Murphy & Landon, P.A. v. Pernick, 121 A.3d 1215, 1217 (Del. 2015).




                                               10
