BEFORE THE INDUSTRIAL ACCIDENT BOARD OF THE STATE OF DELAWARE ) ) ) ) ) ) ) ) ) DECISION ON PETITION TO TERMINATE BENEFITS

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1 BEFORE THE INDUSTRIAL ACCIDENT BOARD OF THE STATE OF DELAWARE MATTHEW BEHORNAR, Employee, v. STANDARD DISTRIBUTING, INC., Employer. Hearing No DECISION ON PETITION TO TERMINATE BENEFITS Pursuant to due notice of time and place of hearing served on all parties in interest, the above-stated cause came before the Industria~ Accident Board on December 17, 2009, in the Hearing Room ofthe Board, in New Castle County, Delaware. PRESENT: LOWELL L. GROUNDLAND TERRENCE M. SHANNON Christopher F. Baum, Workers' Compensation Hearing Officer, for the Board APPEARANCES: Gary S. Nitsche, Attorney for the Employee John Gilbert, Attorney for the Employer JAN

2 NATURE AND STAGE OF THE PROCEEDINGS Matthew Behomar ("Claimant" injured his left upper extremity on April 22, 2008, while working for Standard Distributing, Inc, ("Standard". The injury was acknowledged as compensable and Claimant received certain workers' compensation benefits, including compensation for total disability that began effective April 23, 2008, Claimant's wage at the time ofinjury was $ per week, resulting in a compensation rate of$ per week. On March 25, 2009, Standard filed a Petition to Terminate Benefits alleging that Claimant is capable of returning to work. Disability benefits have been paid to Claimant by the Workers' <:Compensation Fund since the filing ofthe petition, pending a hearing and decision. I A hearing was held on Standard's petition on December 17,2009. The parties agreed to a stipulation of certain facts, which will be inserted into the Summary of the Evidence where appropriate. This is the Board's decision on the merits, SUMMARY OF THE EVIDENCE Claimant testified that he is thirty-two years old, with a high school education and some college. In 2008, he worked for Standard delivering beer. He was primarily a driver but also did some warehouse work. In April of 2008, he hurt his left shoulder and had surgery to it on June 2, He still has shoulder symptoms. He still has numbness and tingling in his third, fourth and fifth fingers, and he has pain in the shoulder area going to the neck, He takes Aleve, Tylenol and Darvocet. He still is treating with Dr, Randeep Kahlon. According to the parties' stipulation 1 This matter was to be heard on October 7, 2009, l;lut prior to then the hearing was cancelled because the parties believed that they had reached settlement. The Fund ceased payments at that point. It then turned out that a complete meeting of the minds had not occurred. Following a motion hearing held on November 12, the Board ordered that the petition be revived and the matter scheduled to be heard on Decem ber 17, 2009, 2

3 of facts, he was released to return to full-time light-duty work in March of 2009 by both Dr. Kahlon and Dr. Case. Prior to and at the time of his injury, Claimant also held a part-time job delivering papers for the News Journal ("NJ"2 He works for NJ from 3:30am to 6:30am] In 2008, he had an income of $19, from this job. Two days after his work injury, he told an adjuster for Standard's insurance company about the NJ job. She later calculated his compensation rate for his disability. He has had four different adjusters on his case and he has told each one of them about his NJ job. He was back delivering papers for NJ by July 17,2008, Claimant confirmed that, by July of 2009, he was earning about $ per week from his NJ jobs. He had been interested in returning to work for Standard, but it never attempted to accommodate his restrictions and did not mention having any light-duty work available, His employment with Standard ended on September 4, Since then, he has looked for work and is still looking. He has looked for such positions as security, service facility manager, route manager, courier, customer service, truck driving and the like. He has had two interviews with prospective employers, but he has not yet heard back from them. The parties stipulated to the admission.of a labor market survey that confirms that there are jobs available to a person with light-duty restrictions which pay an average of $ per week. Mary Ann Shelli Palmer testified on behalf of Standard. She prepared the labor market survey. She believes that the general types of positions listed on the labor market survey have 2 Strictly speaking, NJ considers Claimant to be an independent contractor. In this decision, the Board will refer to Claimant "working for" NJ or to "the NJ job", The Board does not mean to suggest that Claimant is an employee of NJ. It is just a shorthand way of referring to Claimant's self-employment position delivering papers for NJ. ] Claimant stated that he works thirty hours per week for NJ. Based on the work hours he mentioned, this does not calculate properly. 3

4 remained available. While there is currently about an eight percent unemployment rate, there are jobs available in the current economic environment to somebody such as Claimant. FINDINGS OF FACT AND CONCLUSIONS OF LAW Reformation Standard asserts that Claimant's existing Agreement as to Compensation for total disability should be reformed effective July 17,2008, on the basis that Claimant was not totally disabled as of that time and he had returned to working his part-time job with NJ. Thus, Standard argues that the Agreement should be reformed from "total disability" to "partial disability" and that Standard should be awarded a credit for the "overpayment" of total disability benefits compared to what should have been paid for partial disability. A claimant would not normally be considered "totally disabled" when he or she was, in fact, working. It is not, however, unheard of. In Stanley Warner Corp. v. Slattery, 235 A.2d 633 (Del. Super. 1967, the claimant worked both a day job and a night job at the time of his injury. The night job was heavy duty, while the day job was more sedentary. He was injured on his night job and his subsequent restrictions prevented him from continuing with his night job, but he was still able to work on his day job. Stanley Warner, 235 A.2d at 633. The employer argued that the claimant was not totally disabled because he was still working the day job. The Superior Court noted that the goal of the Workers' Compensation Act is to provide compensation for a loss of earning capacity. In terms of earning capacity, if the claimant had held one job, which a compensable injury had caused him to lose, obtaining the daytime job might in itself be proof that earning capacity was not impaired. Where a man has held two jobs and lost one because of an injury, his earning capacity might well be impaired to the extent of his inability to find a substitute job, compatible with his available time and skills. 4

5 Stanley Warner, 235 A.2d at 635 (emphasis added. In other words, because the claimant had been working the day job prior to the injury and continued to work in it after the injury, the question for "total disability" (in the sense of lost earning capacity was limited to whether there was available night-time work within his restrictions. Stanley Warner, 235 A.2d at 635. This approach appears fair in another respect as well. The parties are agreed that, with Standard, Claimant was paid $ per week at the time of the injury. At the same time, Claimant was working the part-time job with NJ 4 It is well established, however, that his income from the NJ job cannot be considered in establishing his "average weekly wage" for purposes of receiving workers' compensation benefits. Howard v. Peninsula United Methodist Homes, Inc., Del. Super., CA No. 03A , Cooch, 1., 2003 WL at *1 (November 17, For the period when he was unable to perform either job, he was compensated only for the loss of income from his job at Standard. Because the already existing part-time job is ignored for the purpose of determining Claimant's wage at the time ofthe accident, it seems only fair that that same job is also ignored for determining Claimant's period of total or partial disability. The existing part-time job's income is not considered for the purpose of increasing Claimant's workers' compensation benefit, so simple justice demands that it also not be considered for the purpose ofreducing those benefits. Accordingly, following the precedent of Stanley Warner, the Board finds that there are certain circumstances when a person can be compensated for "total disability" while working. It therefore is not clearly an error for Claimant to have received compensation for total disability 4 The precise amount of Claimant's weekly compensation from NJ at the time of his April 2008 work injury is not clear. In July of 2009, NJ calculated that Claimant earned about $ per week. Claimant's tax return for 2008 indicates that he earned $19, in the NJ job, which would average $ per week. However, in light of Claimant's work injury at Standard and subsequent surgery, Claimant likely missed time from work at NJ, reducing his annual wages in

6 when he returned to his part-time job. He was a man who held two jobs and lost one because of an injury. As such, his earning capacity might well be impaired to the extent of his inability to find a substitute job, compatible with his available time and skills. There is also no deception involved in this case-claimant notified the carrier of his part-time job on multiple occasions. It is the same part-time job he had while working for Standard. With no clear error and no deception by Claimant, there is no legitimate basis to grant a reformation or a credit. Of course, the Board recognizes that the fact that Claimant was physically capable of working another job in July of 2008 might have been a basis for filing a termination petition back in July, but Standard did not choose to do this. Rather, it waited until March of2009 to file. Standard was certainly aware of the situation with Claimant. It admits that it had surveillance video taken of him in July doing his part-time job. The Board frequently hears termination petitions where, in theory, the petition could have been filed and a claimant's benefits terminated sooner. Nevertheless, the Board seldom makes a finding of termination retroactive prior to the time of filing ofthe petition because, until the filing of the petition, the employer has essentially acquiesced to the claimant's disability status. This certainly seems true here where Standard had surveillance video from July of 2008 showing Claimant working at his part-time job, but it chose " not to challenge Claimant's work status until March of2009. Accordingly, for these various reasons and under such facts, the Board finds no basis to reform the Agreement as to Compensation or to award a credit for overpayment. Termination However, Standard does have a termination petition pending. In a total disability termination case, the employer is initially required to show that the claimant is not completely incapacitated (i e., demonstrate "medical employability". Howell v. Supermarkets General 6

7 Corp., 340 A.2d 833, 835 (Del. 1975; Chrysler Corporation v. Duff, 314 A.2d 915, 918n.1 (Del In response, the claimant may rebut that showing, show that he or she is a prima facie displaced worker or submit evidence of reasonable efforts to secure employment which have been unsuccessful because of the injury (I. e., actual displacement. In rebuttal, the employer may then present evidence showing the availability ofregular employment within the claimant's capabilities. Howell, 340 A.2d at 835; Duff, 314 A.2d at 918n.1. In this case, the Board finds that Claimant's total disability status terminated effective the date offiling of Standard's petition, but that he is entitled to compensation for partial disability. The first issue is easily resolved. There is no dispute that from a medical perspective Claimant is no longer totally disabled and was not physically totally disabled as of the date of filing of Standard's petition on March 25, Claimant agreed that both his doctor, Dr. Kahlon, and Standard's medical expert, Dr. Case, agreed in March that Claimant could work in a light-duty capacity. Finding that Claimant is physically capable of working, the next issue is whether Claimant is a displaced worker. An injured worker can be considered displaced either on a prima facie basis or through showing "actual" displacement. The employer can then rebut this showing by presenting evidence of the availability of regular employment within the claimant's capabilities. See Howell, 340 A.2d at 835; Duff, 314 A.2d at 918n.l. With respect to the issue ofprima facie displacement, generally elements such as the degree of obvious physical impairment coupled with the claimant's mental capacity, education, training, and age are considered. Duff, 314 A.2d at As a practical matter, to qualify as a prima facie displaced worker, one must normally have only worked as an unskilled laborer in the general labor field. See Vasquez v. Abex Corp., Del. Supr., No. 49, 1992, at ~ 9 (November 5, 7

8 1992; Guy v. State, Del. Super., C.A. No. 95A , Barron, J., 1996 WL at *6 (March 6, 1996; Bailey v. Milford Memorial Hospital, Del. Super., CA. No. 94A , Graves, J., 1995 WL at * 7 (November 30, In Claimant's case, he has above a high school education. He is only thirty-two years old. There is no suggestion that his mental capacity is anything other than normal. While he has work restrictions with respect to the use of his left shoulder, they are only light-duty restrictions. The Board is satisfied that this is not the presentation ofa person who is displaced on a primafacie basis. Delaware case law has also established another basis for an injured worker to be considered "totally disabled" despite being physically able to work and not displaced on a prima facie basis. When an employee is injured and has work restrictions, that employee may be considered effectively totally disabled if the employer engages in conduct that provides the employee with reason to believe that the work restrictions will be accommodated but then does not provide suitable employment. See Hoey v.' Chrysler Motors Corp., Del. Supr., No. 85, 1994, Hartnett, 1. (December 28, An employee who has no reason "to know that [he] IS a displaced employee cannot be expected to seek new employment." Hoey, at ~ 7 5 The question is whether the employee has a "realistic expectation of continued employment." Saunders v. DaimlerChrysler Corp., Del. Supr., No. 524,2005, at ~15(February 17, 2006(ORDER. Formal termination of employment is not required under Hoey if the facts establish that "the claimant had no reasonable expectation of continued employment yet did not seek other employment." Saunders, at ~17. This is consistent with the general rule in workers' j In Hoey, the claimant had been working for the employer for seventeen years. She was still listed by the employer as an employee and continued to receive substantial employee benefits. She continued to participate in a "workhardening program." The employer had a practice of offering light-duty work to its injured employees and claimant continued to report to the company physician every six weeks. The employer did not tell her that light-duty work would not be made available, nor did it tell her that her employment was tenninated. Under such circumstances, the Supreme Court found that the claimant could be considered "totally disabled." See Hoey, at ~~

9 compensation that when an employee is physically capable of working to some degree, the employee (not the employer has the primary burden to show that reasonable efforts were made to secure suitable employment within the claimant's restrictions. Hoey, at ~ 7. In this case, Claimant's employment with Standard was not formally terminated until September 4,2009. However, Claimant admitted that Standard never told him that there would be any light-duty jobs available and never made any effort to accommodate his restrictions. As such, unlike the claimant in Hoey, Claimant inthis case was not misled into having a reasonable expectation that Standard would provide him with a job. Claimant is therefore not a displaced worker under the Hoey rationale. The next issue, then, is whether Claimant has shown himself "actually" displaced by means ofajob search which has failed because of his work injury. See Duff, 314 A.2d at 918n.1 (noting that, to establish displacement, an injured worker may submit "evidence of reasonable efforts to secure employment which have been unsuccessful because of the injury"; Meloni v. Westminster Village, Del. Super., C.A. No. 05A , Brady, J., 2006 WL at *4 (August 17, 2006(affirming Board's finding that claimant's job search was not unsuccessful "because of her injuries". The inability to find work must be a direct result of an injury and not just the result of general economic conditions. Federal Bake Shops, Inc. v. Maczynsky, 180 A.2d 615,616 (Del. Super See also Doe v. General Foods Corp., Del. Super., C.A. No. 83A AU-4, Ridgely, J., 1986 WL 6589 at *3 (May 21,1986. Claimant testified to his efforts to find work. He has applied at a number of places. He agreed that he has received two interviews, although he has not heard back from either prospective employer. Certainly, under current economic conditions, there are a number of people trying to find jobs. It is a competitive labor market. There is nothing in Claimant's job 9

10 search that would lead to the conclusion that Claimant's inability to find work is because of his injury. There is also the evidence of the labor market survey. Ms. Palmer testified that the types of jobs shown on the survey remain available in the labor market 6 The Board is therefore satisfied that Claimant is not actually a displaced worker. Claimant is not medically totally disabled nor is he a displaced worker. As such, the Board finds that his total disability status terminated effective the date of filing of Standard's petition. Partial Disability The next question is whether Claimant is entitled to compensation for partial disability. The threshold question is whether Claimant still has work restrictions related to his work injury that could reasonably affect his earning capacity. See Waddell v. Chrysler Corporation, Del. Super., CA No. 82A-MY-4, Bifferato, J., slip op. at 5 (June 7, I983(burden to prove claimant is not partially disabled is on employer when "there is evidence that in spite of improvement, there is a continued disability, and such disability could reasonably affect the employee's earning capacity". Clearly, he does. It is stipulated that he is restricted to light-duty work. By stipulation, the parties agreed that the labor market survey reflects an average weekly wage of $ per week. For the reasons discussed earlier with respect to the Stanley Warner precedent, the Board will not take into account the wages of Claimant's existing part-time job with NJ in setting his post-injury earning capacity because those wages were also not considered in setting his total disability compensation rate. Accordingly, the Board will accept the labor 6 To some extent, Claimant in his job search appears to be trying for higher paying positions, such as managerial positions. The survey presents more entry-level positions. This may explain why Claimant is having difficulty finding a position while the survey reflects the availability of jobs. Claimant, understandably, is trying to find higher paying jobs. 10

11 market survey as presented and finds that Claimant's post-injury earning capacity for a full-time job is $ per week. Claimant's wage at the time of injury was $755,56 per week. He therefore has a diminished earning capacity of $ per week. This translates into a compensation rate for partial disability of $ per week. Attorney's Fee & Medical Witness Fee A claimant who is awarded compensation IS entitled to payment of a reasonable attorney's fee "in an amount not to exceed thirty percent of the award or ten times the average weekly wage in Delaware as announced by the Secretary of Labor at the time of the award, whichever is smaller." DEL. CODE ANN. tit. 19, At the current time, the maximum based on Delaware's average weekly wage calculates to $9, The factors that must be considered in assessing a fee are set forth in General Motors Corp. v, Cox, 304 A.2d 55 (Del Less than the maximum fee may be awarded and consideration ofthe Cox factors does not prevent the granting of a nominal or minimal fee in an appropriate case, so long as some fee is awarded. See Heil v. Nationwide Mutual Insurance Co., 371 A.2d 1077, 1078 (Del. 1977; Ohrt v. Kentmere Home, Del. Super., C.A. No. 96A-OI-005, Cooch, J., 1996 WL at *6 (August 9, A "reasonable" fee does not generally mean a generous fee. See Henlopen Hotel Corp, v Aetna Insurance Co" 25 I F. Supp. 189, 192 (D. Del Claimant, as the party seeking the award of the fee, bears the burden of proof in providing sufficient information to make the requisite calculation. By operation of law, the amount of attorney's fees awarded by 7 Attorney's fees are not awarded if, thirty days prior to the hearing date, the employer gives a written settlement offer to the claimant that is "equal to or greater than the' amount ultimately awarded by the Board," Del. Code Ann, tit. 19, A settlement offer was tendered by Standard, but it was for less that what was awarded by the Board. Accordingly, an award of attorney's fees is appropriate in this case. 1/

12 the Board applies as an offset to fees that would otherwise be charged to Claimant under the fee agreement between Claimant and Claimant's attorney. DEL. CODE ANN. tit. 19, 2320(lOa. Claimant's counsel submitted an affidavit stating that he spent at least twenty-one hours In preparation time for this hearing. Because of the preparation work on the part of both attorneys in stipulating to certain facts and narrowing the issues, the hearing itself only last about 45 minutes. Claimant's counsel was admitted to the Delaware Bar in 1988 and he is very experienced in workers' compensation law, a specialized area of litigation. His or his office's initial contact with Claimant was in April of 2008, so Claimant has been represented for over a year and a half. This case was of moderate complexity involving a fairly unusual issue of fact and law. Counsel does not appear to have been subject to any unusual tirne limitations imposed by either Claimant or the circumstances. There is no evidence that accepting Claimant's case precluded counsel from accepting other clients. Counsel's fee arrangement with Claimant is on a one-third contingency basis. Counsel does not expect a fee from any other source. There is no evidence that the employer lacks the ability to pay a fee. Taking into consideration the fees customarily charged in this locality for such services as were rendered by Claimant's counsel and the factors set forth above, the Board finds that an attorney's fee in the amount of $6, is reasonable in this case. In the Board's estimation, this fee adequately takes into account the value of non-monetary benefits arising from this decision. See Pugh v. Wal-Mart Stores, Inc., 945 A.2d 588, (Del Claimant did not present a medical witness, so there is also no award of medical witness fees pursuant to title 19, section 2322(e of the Delaware Code.

13 STATEMENT OF THE DETERMINATION For the reasons set forth above, the Board denies Standard's request for reformation or a credit. However, the Board finds that Claimant's total disability status terminated effective March 25, 2009, the date of filing of Standard's termination petition, but that Claimant is entitled to compensation for partial disability from that date at the rate of $171,91 per week, Standard shall make appropriate reimbursement to the Workers' Compensation Fund, in accordance with title 19, section 2347 of the Delaware Code, Finally, Claimant is awarded payment of an attorney's fee, IT IS SO ORDERED THIY/ DAY OF DECEMBER, 2009, INDUSTRIAL ACCIDENT BOARD ~/~ LOWELL L. GROUNDLAND ~..L(~ TERRENCE M, SHANNON I, Christopher F, Baum, Hearing Officer, hereby c rtify that the foregoing ;" 'rue ~d WIT," d,,;;;ooofili2?/cld~~ Mailed Date: I}, ~A-Or " O~ Staff /7 13