ELSA ABAY, Appellant-Claimant Below v. ROCKLAND PLACE, Appellee-Employer Below Civil

Action No. 02A-07-004 SCD.Superior Court of Delaware.Submitted: February 26, 2003.
Decided: May 22, 2003.

Upon appeal from the decision of the Industrial Accident Board denying certain temporary total disability benefits — REVERSED AND REMANDED

Jeffrey S. Friedman, Esquire Silverman McDonald Wilmington, DE

Anthony Frabizzio, Esquire Heckler Frabizzio Wilmington, DE

Susan C. Del Pesco

Dear Counsel:

On February 13, 2002, Elsa Abay (“claimant”) filed a Petition to Determine Compensation Due alleging that she injured her low back on January 10, 2002, while working for Rockland Place (“Rockland”). She sought medical benefits and total disability benefits for January 14, 2002, through January 20, 2002, and February 7, 2002, forward.

A hearing was held before the Industrial Accident Board (“IAB”). A decision was issued on June 12, 2002, finding that:

• the claimant sustained a compensible accident to her low back on January 10, 2002;

• all medical bills presented by the claimant were reasonable and necessary;

• the claimant was totally disabled from January 14 through January 20, 2002;

• the claimant returned to work on light duty from January 22 through February 5, 2002;

• as of February 7, the claimant was sent home by Rockland until her doctor released her to full duty even though there was light duty work available at Rockland;

• the claimant was released to return to full duty in March 2002; therefore she is entitled to total disability benefits for the period of February 7 through March 14, 2002;

• after March 14, 2002, the date of claimant’s appointment with Dr. Estock when he released her without restrictions, claimant was no longer totally disabled;

• the claimant mailed her full duty release to Rockland, but her failure to follow-up with Rockland to see if the release had been received and whether she would be permitted to return to work was “unreasonable”;

• because she was not in fact totally disabled after March 14 and she did not follow-up with her employer, she was not entitled to total disability benefits thereafter.

The issue on appeal is narrow. The claimant does not dispute the IAB’s determination that she failed to meet her burden of proving total disability for the period of time when her doctor determined her to be capable of full duty employment; that period of time was March 14 through April 29, 2002. The claimant argues that the IAB erred in failing to recognize the testimony from the claimant’s doctor that when he saw her on April 29, 2002, her total disability status had reoccurred and she was returned to light duty. That being the case, the conclusion that she was not totally disabled after March 14, 2002, is not supported by the evidence.

The employer responds that the claimant has not met her burden of proof as she produced no medical evidence to support a finding of total disability from April 29, 2002, ongoing. “If it is the claimant’s position that simply because she was working a second full-time job at Eden Rock and did not return to work with the employer that she is entitled to total disability benefits, there is no substantiation for this position.”

This Court has limited appellate review of a decision from the Industrial Accident Board. On appeal from the IAB, this Court determines whether the agency’s decision is supported by substantial evidence and is free from legal error.[1] Substantial evidence is such relevant evidence that a reasonable mind would accept as adequate to support a conclusion.[2] This Court does not act as the trier of fact nor does it have authority to weigh the evidence, weigh issues of credibility, or make factual conclusions.[3] Therefore, given an agency’s specialized competence, this Court merely reviews whether the findings made by that agency are adequately supported by the evidence.[4]

There is no dispute between the parties that the IAB’s decision omits any reference to the April 29, 2002, office visit when the claimant’s doctor determined that she was no longer capable of full duty work. The IAB’s award of total disability benefits from February 7 to March 14 is based on the fact that the claimant was available for light duty work, but was not offered work. The denial of total disability benefits after March 14 is based on the fact that she was no longer totally disabled. What the IAB does not mention is the undisputed testimony that on April 29 she was again returned to light duty status, as a result of her compensible injuries. That factual omission undermines the predicate for the conclusion that she was not entitled to total disability benefits for any period of time after March 15.

The decision of the Industrial Accident Board is reversed and remanded.

IT IS SO ORDERED.

[1] Devine v. Advanced Power Control, Inc., 663 A.2d 1205, 1209
(Del.Super. 1995) (citing General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965); General Motors Corp. v. Jarrell, 493 A.2d 978, 980 (Del.Super. 1985)).
[2] Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super. 1986).
[3] Johnson, 213 A.2d at 66.
[4] DEL. CODE ANN. tit. 29 § 10142(d) (1997).