Washington v. Delaware Transit Corp ( 2020 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
LESHAWN WASHINGTON §
§ No. 333, 2019
Appellant-Below, §
Appellant, §
§ Court Below:
v. § Superior Court
§ of the State of Delaware
DELAWARE TRANSIT CORP., §
§
Appellee-Below, § C.A. No. N18A-12-007
Appellee. §
Submitted: January 15, 2020
Decided: March 2, 2020
Before VALIHURA, VAUGHN, and TRAYNOR, Justices.
Upon appeal from the Superior Court. REVERSED and REMANDED.
Michael I. Silverman, Esquire, Adrienne M. McDonald, Esquire, Silverman McDonald &
Friedman, Wilmington, Delaware for Appellant.
John J. Klusman, Esquire, Kenneth L. Wan, Esquire, Tybout Redfearn & Pell,
Wilmington, Delaware for Appellee.
VALIHURA, Justice:
This is an appeal of a July 22, 2019 decision by the Superior Court affirming the
November 28, 2018 Order (the “Order”) of the Industrial Accident Board (the “IAB” or
“Board”) granting Delaware Transit Corporation’s (“DTC”) motion to dismiss Claimant
LeShawn Washington’s (“Claimant”) Petition seeking benefits for Permanent Impairment
(the “PI Petition”).
Claimant suffered an injury to his left shoulder in a work-related incident that
occurred on August 4, 2016 and was placed on disability. Upon returning to work, he
claimed that his shoulder symptoms had worsened. Claimant then filed a Petition seeking
compensation for a recurrence of temporary total disability (the “TTD Petition”),1 which
the IAB denied (the “TTD Opinion”). Claimant then filed his PI Petition.
In preparing for the hearing on the PI Petition, both parties obtained medical expert
opinions regarding the degree of Claimant’s permanent impairment. Both parties’ experts
agreed that there was some degree of permanent impairment. Nevertheless, DTC moved
to dismiss the PI Petition at the commencement of the hearing. DTC argued that the IAB
had previously ruled on the matter during Claimant’s TTD Petition hearing when it stated
that Claimant had “fully recovered” from his work injury. The IAB agreed, and dismissed
the PI Petition on that basis, before considering the permanent impairment testimony.2
1
Washington v. Del. Transit Corp., No. 1445577 (Del. I.A.B. Aug. 7, 2017), App. to Opening Br.
at A20 [hereinafter Washington I].
2
Washington v. Del. Transit Corp., No. 1445577 (Del. I.A.B. Nov. 28, 2018), App. to Opening
Br. at A18 [hereinafter Washington II].
2
Claimant appealed the IAB’s decision to the Superior Court, arguing that the IAB
never concluded that the Claimant had “fully recovered.” In affirming the IAB’s Order,3
the Superior Court recognized that the IAB’s “Findings of Fact and Conclusions of Law”
section did not contain the words “fully recovered.”4 However, the court acknowledged
that the phrase “fully recovered” was in the “Summary of Evidence” section.5 The court
highlighted the IAB’s references to Dr. Gregory Tadduni’s testimony that Claimant’s
shoulder examination was “normal,” and that Claimant had “returned to normal.” 6 The
Superior Court then held that the Board had reasonably interpreted the TTD Opinion, and
that the Board’s decision to dismiss was supported by substantial evidence.
Claimant raises two issues on appeal. First, he asserts that the Superior Court erred
in concluding that the Board had reasonably interpreted the TTD Opinion. He argues that
the Board never considered the testimony regarding his permanent impairment because the
issue considered by the experts in the temporary total disability context, although related,
is different from the issue addressed by the experts in the permanent impairment context.
Therefore, it was error for both the Board, and the Superior Court, to dismiss the PI Petition
based solely on the testimony given in the total temporary disability context. Second,
Claimant asserts that the Superior Court erred as a matter of law in holding that the Board’s
3
Washington v. Del. Transit Corp., C.A. No. N18A-12-007 (Del. Super. July 22, 2019), App. to
Opening Br. at A5 [hereinafter the “Opinion”].
4
Id. at 10 n.24, App. to Opening Br. at A15 (“[T]he ‘Findings of Fact and Conclusions of Law’
section of the Board’s TD Decision did not specifically state that the Board found that [Claimant]
had ‘fully recovered’ . . . .”).
5
Id. (“[T]he fact section states that Dr. Tadduni concluded that [Claimant] had fully recovered.”).
6
Id. at 9–11, App. to Opening Br. at A14–A16.
3
dismissal of his PI Petition was supported by substantial evidence. Claimant argues that
the Board did not have any evidence regarding his impairment because the Board dismissed
the PI Petition without considering the testimony related to the PI Petition.
As explained below, we hold that the Superior Court erred in affirming the Board’s
decision to deny Claimant’s PI Petition. Although the Board is permitted to interpret its
own orders and rulings, the Board erred when it dismissed Claimant’s PI Petition based
solely on the expert testimony presented in connection with his TTD Petition. The TTD
Petition addressed the question of whether Claimant had suffered a recurrence of a total
disability, and whether Claimant could return to work. The TTD Petition did not address
Claimant’s degree of impairment. In this close case, we conclude that the Claimant should
have the opportunity to present his evidence in a permanent impairment hearing.
Accordingly, we REVERSE and REMAND this matter to the Superior Court.
I. Relevant Facts and Procedural Background
Claimant worked for DTC as a bus driver.7 On August 4, 2016, Claimant injured
his left shoulder while driving on the job.8
On September 8, 2016, Claimant underwent surgery on his shoulder, which required
him to be out of work for a period of time.9 DTC agreed that Claimant was injured in the
7
Washington I, No. 1445577, at 2, App. to Opening Br. at A21.
8
Id. The Superior Court incorrectly lists the date of injury as April 4, 2016. See Opinion, C.A.
No. N18A-12-007, at 2, App. to Opening Br. at A7.
9
Washington I, No. 1445577, at 2, App. to Opening Br. at A21.
4
course and scope of his employment and provided workers compensation disability
benefits pursuant to 19 Del. C. § 2324 (“Section 2324”).
On December 5, 2016, Dr. Shaun Rinow released Claimant to light duty as a bus
checker.10 Upon returning to work, Claimant alleged that his shoulder began to hurt from
riding the bus. Due to the Claimant’s alleged discomfort, Dr. Rinow placed Claimant back
on disability on December 7, 2016. DTC refused to pay for a recurrence of total disability
at this time, and as a result, Claimant filed his TTD Petition.
A. The Temporary Total Disability Proceedings
On January 17, 2017, Claimant filed his TTD Petition to determine Additional
Compensation Due. On July 24, 2017, a hearing was held to decide whether he had
suffered a recurrence of his shoulder disability from December 7, 2016 to June 23, 2017.
During the hearing, the Board considered live testimony from the Claimant and deposition
testimony from both parties’ experts, Dr. Rinow and Dr. Tadduni.
Claimant testified that, on December 5, 2016, he was released by Dr. Rinow for
light duty, which limited him to lifting no more than 10 pounds and working four hours per
day. Upon returning to work as a bus checker, Claimant alleged that his shoulder began
hurting from riding on the bus.11 Claimant returned to Dr. Rinow for treatment, who, again,
placed him on disability until June 23, 2017.12
10
Id.
Id. Claimant described the difference in his shoulder as “more soreness and tenderness and less
11
movement.” Id.
12
Id.
5
Dr. Rinow, a licensed and board certified chiropractor,13 testified by deposition on
Claimant’s behalf. In August of 2016, Dr. Rinow began treating Claimant for shoulder
symptoms related to his work incident.14 Dr. Rinow referred Claimant to Dr. Palma for
surgery in order to repair a broken screw in Claimant’s left shoulder.15 After surgery, Dr.
Rinow testified that Claimant had an increase in symptoms upon returning to work in
December of 2016, precluding him from returning to work before June 2017.16 Dr. Rinow
testified that Claimant was out of work for such a lengthy time because “[t]he shoulder is
a complex joint. It takes a long time to rehab[ilitate].”17
Dr. Tadduni, a board certified orthopedic surgeon,18 testified by deposition on
DTC’s behalf. Dr. Tadduni evaluated the Claimant on two occasions: first on October 13,
2016, approximately five weeks after his surgery; and again on June 22, 2017.19 As part
of these evaluations, Dr. Tadduni reviewed Claimant’s medical records, diagnostic testing
results, and a DART bus video depicting what had occurred on August 4, 2016.20 Dr.
Tadduni testified that at the time of the first evaluation, he was unsure of the exact
13
App. to Opening Br. at A41 (Rinow Dep. at 4:5–9).
14
Washington I, No. 1445577, at 5, App. to Opening Br. at A24.
15
Washington I, No. 1445577, at 2, App. to Opening Br. at A21; see App. to Opening Br. at A113
(Tadduni Dep. at 7:7–9). The record does not provide Dr. Palma’s full name.
16
App. to Opening Br. at A46–A47 (Rinow Dep. at 9:11–10:17).
17
Id. at A45–A46 (Rinow Dep. at 8:24–9:1).
18
Id. at A109–A110 (Tadduni Dep. at 3:21–4:1). Although Dr. Tadduni is a board certified
orthopedic surgeon, he is not certified under the Delaware workers’ compensation guidelines. Id.
(Tadduni Dep. at 4:13–16).
19
Id. at A111, A113 (Tadduni Dep. at 5:12, 7:12–13).
20
Id. at A111–A112 (Tadduni Dep. at 5:12–6:18).
6
procedure Claimant had undergone.21 However, Dr. Tadduni testified that, had he known
that Claimant’s surgery repaired a broken screw, he “would have said that [Claimant] was
not going to need prolonged restriction and probably by the six-week point post surgery
[Claimant would] be able to return to normal activity.”22 Thus, Dr. Tadduni concluded
Claimant could return to work as he was “fully recovered and [did] not need ongoing
treatment at this point.”23 Dr. Tadduni testified that Claimant was “capable of returning to
work as early as December of 2016,”24 and at the very latest, Dr. Tadduni opined that
Claimant could fully return to work on June 22, 2017.25
The IAB denied Claimant’s TTD Petition in its TTD Opinion dated August 7,
2017.26 The Board held that Claimant had failed to prove by a preponderance of the
evidence that he had suffered a recurrence of total disability effective December 7, 2016
through June 23, 2017.27 In denying Claimant’s TTD Petition, the Board explicitly
21
Id. at A119 (Tadduni Dep. at 13:8–18). See also id. (Tadduni Dep. at 13:1–18) (“[I]n retrospect
probably if [Claimant] didn’t have the broken screw he might not have had the procedure to begin
with . . . . I didn’t know that when I saw him, so I assumed that he needed ongoing restrictions
regarding the shoulder because I didn’t know exactly what had taken place and I saw him exactly
five weeks I believe after the shoulder procedure.”).
22
Id. at A119 (Tadduni Dep. at 13:22–24).
23
Id. at A129 (Tadduni Dep. at 23:3–4).
24
Washington I, No. 1445577, at 10, App. to Opening Br. at A29; see also App. to Opening Br. at
A129 (Tadduni Dep. at 23:5–23).
25
See Washington I, No. 1445577, at 15, App. to Opening Br. at A34; App. to Opening Br. at
A129–A130 (Tadduni Dep. at 23:24–24:3).
26
Washington I, No. 1445577, at 17, App. to Opening Br. at A36.
27
Id. at 12–13, App. to Opening Br. at A31–A32. The IAB found that, “[t]here is no evidence that
Claimant’s physical condition with respect to his work injury has changed for the worse at any
time since December 7, 2016.” Id.
7
accepted Dr. Tadduni’s testimony over that of Dr. Rinow’s, and concluded that “Claimant
was no longer totally disabled after December 5, 2016.”28
The ten-page “Summary of the Evidence” section of the TTD Opinion contained
the testimony and opinion of both experts.29 This included Dr. Rinow’s opinion that
Claimant initially had an increase in symptoms upon his return to work in December of
2016, and his belief that Claimant was “fully recovered” as of June 2017.30 This also
included Dr. Tadduni’s review of Claimant’s history,31 his disagreement with Claimant’s
prolonged restriction, and his opinion that “Claimant had fully recovered from the August
2016 work accident . . . .”32 The Board reiterated Dr. Tadduni’s opinions in the “Findings
of Fact and Conclusions of Law” portion that Claimant had returned to “normal,” but not
the statements that Claimant had fully recovered.33
28
Id. at 15, App. to Opening Br. at A34; see id. (stating that, “[t]he Board accepts the opinion of
Dr. Tadduni over that of Dr. Rinow).
29
Id. at 2–11, App. to Opening Br. at A21–A30.
30
Id. at 5–6, App. to Opening Br. at A24–A25.
31
Id. at 8–11, App. to Opening Br. at A27–A30.
32
Id. at 11, App. to Opening Br. at A30.
33
Id. at 13–15, App. to Opening Br. at A32–A34 (“The medical testimony further supports a
finding that no recurrence occurred. . . . Dr. Tadduni testified that Claimant could have returned to
work full-time after December 5, 2016 . . . . Dr. Tadduni [also] pointed out that Claimant’s records
from December 5, 2016 and December 7, 2016 . . . indicated Claimant was improving, . . . [and]
[b]y the time of Claimant’s June 2017 visit[] [with] Dr. Tadduni [he] concluded that Claimant’s
shoulder examination was normal.”).
8
B. The Permanent Impairment Proceedings
On February 21, 2018, Claimant filed his PI Petition pursuant to 19 Del .C. § 2326
(“Section 2326”).34 Both parties retained experts in preparation for the hearing.35 Claimant
retained Dr. Peter Bandera, and DTC retained Dr. Andrew Gelman. Both experts offered
deposition testimony for use at the permanency hearing.36 Although Dr. Bandera and Dr.
Gelman agreed that Claimant had some permanent impairment, they disagreed as to the
extent of it.
Dr. Bandera evaluated Claimant on January 31, 2018, and found that “[h]e had pain
on abduction and forward flexion at 110 degrees on the left side, which is restricted range
of motion, the normal motion being approximately 180 degrees.”37 Using the Fifth Edition
of the American Medical Association Guides to the Evaluation of Permanent Impairment
(the “AMA Guides”),38 Dr. Bandera assigned Claimant a 16% partial permanent
impairment rating.39
34
Opinion, C.A. No. N18A-12-007, at 4, App. to Opening Br. at A9.
35
App. to Opening Br. at 3.
36
Id. at A147 (Bandera Dep. at 3:9–13); id. at A197 (Gelman Dep. at 3:9–19).
37
Id. at A147, A153 (Bandera Dep. at 3:22, 9:1–5).
38
Dr. Bandera criticized Dr. Gelman’s use of the Sixth Edition, as opposed to the Fifth Edition,
which he referred to as “the more used edition.” Id. at A177.
39
Id. at A155 (Bandera Dep. at 11:20–23); see also id. at A156–A158 (Bandera Dep. at 12:10–
14:4):
Q. Did you arrive at a number for permanency? And how did you get to that
number?
A. I assigned him a 16 percent partial permanent impairment relative to the left
upper extremity based on the surgical model as reviewed in Chapter 16, specifically
citing, there is a page 506, Table 16-27 . . . . From the Table 16-27 he at least
qualifies for, in the shoulder region, there is a breakdown of a wide total shoulder
9
Dr. Gelman evaluated Claimant on DTC’s behalf on June 6, 2018.40 As to
Claimant’s left shoulder motion, Dr. Gelman found that Claimant’s “[f]orward flexion
measured 90 degrees; abduction, 70 degrees; external rotation, 30 degrees; internal
rotation, 35 degrees; extension, 30 degrees; and adduction, 30 degrees,”41 and that, “[t]hese
were all restricted relative to his right shoulder.”42 Using the Sixth Edition of the AMA
Guides, Dr. Gelman assigned Claimant a 3% partial permanent impairment rating.43
procedure versus isolated surgery to the clavicle region, so he clearly qualifies for
a more comprehensive shoulder operation within a range of 24 to 30 percent. I
gave him a lower level which is 24 percent. And I believe there is some discrepancy
and actually has a typo in the Table 16-27. But I believe he qualifies for the lower
end of that range, 24 percent. And then we add the restriction, range of motion,
and he has pain and dysfunction on abduction, forward flexion at 110 degrees. The
deficit in abduction would qualify him for 3 percent impairment, and the deficit in
flexion, which is moving the arm forward, qualifies him for 5 degrees based on the
pie charts of the upper extremity on page 476 and 477. So in summary, he received
24 percent impairment for this very extensive surgery to his left shoulder, and he
received an 8 percent total impairment with restriction to range of motion. That
combination would essentially be 32 percent. And I downgraded him to a 16
percent based on my clinical experience.
40
Id. at A198 (Gelman Dep. at 4:6–18).
41
Id. at A201 (Gelman Dep. at 7:11–14).
42
Id. at A201 (Gelman Dep. at 7:15).
43
Id. at A208–A209 (Gelman Dep. at 14:7–15:2).
Q. Doctor, you evaluated the Claimant using the Fifth Edition and the Sixth Edition
of the AMA Guidelines. Can you discuss your findings on permanent impairment
with regard to the Claimant’s left shoulder under the Fifth Edition?
A. So to answer that question I did look at the Fifth Edition and I felt that that would
be applicable with regards to the records that I had reviewed dating back to the
summer of 2017 at which time Mr. Washington was released. I specifically
outlined the methodology that I applied with regards to the Sixth Edition, feeling
that a more precise diagnosis is referenced and applicable towards [Claimant] . . . .
And with that said, and citing the Sixth Edition, that is specifically addressed in the
Sixth Edition in Tables 15-5, Page 404. So I took that where [Claimant] falls into
a Class I category which identifies, quote, “Residual symptoms consistent with
objective findings and/or functional loss with normal motion,” unquote. That’s his
residual. That’s with what others recorded as the motion measurements back in the
10
On November 27, 2018, the Board held Claimant’s PI hearing. At the beginning of
the hearing, DTC moved for dismissal, arguing that the Board had already concluded in its
TTD Opinion that Claimant’s shoulder had returned to normal and that he had “fully
recovered.” Without considering the deposition testimony from either Dr. Bandera or Dr.
Gelman, the Board granted DTC’s motion to dismiss.44 On November 28, 2018, the Board
issued the Order dismissing Claimant’s PI Petition.45 The Order stated that the Board had
previously accepted Dr. Tadduni’s testimony over that of Dr. Rinow, and that it had found
previously that Claimant had “fully recovered.” 46
C. The Superior Court Appeal
On December 19, 2018, Claimant appealed the Board’s Order to the Superior Court,
arguing that his PI Petition had been dismissed improperly. He argued that the Board
lacked substantial evidence to dismiss his PI Petition because the Board failed to examine
any evidence relating to his left shoulder permanency. DTC countered that the Board did
not commit an error when it had determined Claimant’s injury was fully resolved because
the Board was free to reasonably interpret its prior ruling.
summer of 2017, and that default equates to a 3 percent rating. Applying the
Adjustment Grid Parameters as I appreciated them and as others recorded [for
Claimant] back in the Summer of 2017, there would be no net adjustment and thus
I concluded a 3 percent left shoulder rating attributable to that which occurred in
2016.
Id. at A207–A209 (Gelman Dep. at 13:14–15:2).
44
The deposition testimony of Dr. Bandera and Dr. Gelman was not admitted into evidence;
however, it was submitted as part of the record in this appeal.
45
Washington II, No. 1445577, App. to Opening Br. at A18.
46
Id.
11
The Superior Court affirmed the Board’s decision, finding that the Board’s
interpretation of its previous decision was reasonable and supported by substantial
evidence.47 The court focused on Dr. Tadduni’s “fully recovered” statement, as well as his
testimony that Claimant’s shoulder had “returned to normal.” In addition, the court
recognized that the “fully recovered” language was not in the “Findings of Fact and
Conclusions of Law” section of the TTD Opinion. Nevertheless, it concluded that the
Board had the authority to interpret the findings and conclusions in the TTD Opinion so
long as the interpretation was reasonable.48 The court then reasoned that substantial
evidence supported affirming the Order because the Board could deduce from those
statements that there was no loss of use in his shoulder, and, thus, there was no permanent
impairment.49 It also noted Claimant’s expert’s testimony that Claimant was “‘100%’ by
June 23[,] 2017” supported its holding.50
This appeal followed. The question Claimant presents is whether the IAB properly
relied upon the expert medical testimony, presented in the context of a TTD Petition, as a
basis to dismiss Claimant’s PI Petition. DTC argues that the Superior Court did not err in
affirming the Order, and further contends that the decision should be affirmed based upon
“law of the case” and res judicata grounds. Although this is a close case because of the
deferential standard of review, we conclude that the Board erred in dismissing the PI
47
Opinion, C.A. No. N18A-12-007, at 11–12, App. to Opening Br. at A16–A17.
48
Id. at 8, App. to Opening Br. at A13; see also id. at 10 n.24, App. to Opening Br. at A15.
49
Id. at 10–11, App. to Opening Br. at A15–A16.
50
Id. at 11, App. to Opening Br. at A16 (quoting App. to Opening Br. at A47 (Rinow Dep. at 10:1–
3)).
12
Petition solely on the basis of the testimony provided for the TTD Petition. We believe
that Claimant should have had an opportunity to present his evidence in the PI Petition
hearing. Accordingly, we reverse and remand for further proceedings.
II. Standard Of Review
“The review of an Industrial Accident Board’s decision is limited to an examination
of the record for errors of law and a determination of whether substantial evidence exists
to support the Board’s findings of fact and conclusions of law.”51 “Substantial evidence is
‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’”52 “It is ‘more than a scintilla but less than a preponderance of the
evidence.’”53 “On appeal, this Court will not weigh the evidence, determine questions of
credibility, or make its own factual findings.”54
III. Analysis
A. The Board Erred in Dismissing the Claimant’s PI Petition.
We agree with Claimant that the Superior Court erred in affirming the Order because
there was no permanent impairment evidence presented to the Board prior to the dismissal
of his PI Petition, and thus, the Board’s decision to deny that petition was unsupported. As
51
Powell v. OTAC, Inc., 2019 WL 6521980, at *4 (Del. Dec. 4, 2019) (quoting Roos Foods v.
Guardado, 152 A.3d 114, 118 (Del. 2016)).
52
Id.
53
Id. (quoting Noel-Liszkiewicz v. La-Z-Boy, 68 A.3d 188, 191 (Del. 2013)).
54
Id. (quoting Person-Gaines v. Pepco Hldgs., Inc., 981 A.2d 1159, 1161 (Del. 2009)) (internal
quotation marks omitted).
13
the TTD Petition and PI Petition address different issues, the Board erred in relying on
testimony from the TTD Petition as the sole basis for dismissing the PI Petition.
In its Order dismissing the PI Petition, the Board stated in the recitals:
WHEREAS, after a prior Hearing in this case on July 24, 2017, the Board
issued a decision dated August 7, 2017 in which it accepted Dr. Tadduni’s
testimony that the claimant had a normal left shoulder on examination and
that the claimant had “fully recovered” from the August 4, 2016 work
accident . . . .55
The Superior Court affirmed the Board’s decision, finding that the Board had reasonably
interpreted the TTD Opinion. The court found that substantial evidence supported
affirming the Order, because the Board could deduce from those statements that there was
no loss of use in his shoulder, and thus there was no permanent impairment. To support its
conclusion, the court also referred to Dr. Rinow’s statement that Claimant “was ‘100%’ by
June 23[,] 2017.”56
As an initial matter, we are not troubled that Dr. Tadduni’s testimony that Claimant
“fully recovered” is not contained in the “Findings of Fact and Conclusions of Law” section
of the TTD Opinion.57 It is within the Board’s discretion to interpret its own rules and
orders so long as the interpretation is reasonable.58 “[A]lthough the reasoning of the Board
must be apparent, ‘where the testimony has been explained as part of the preface to the
55
Washington II, No. 1445577, App. to Opening Br. at A18.
56
Opinion, C.A. No. N18A-12-007, at 11, App. to Opening Br. at A16 (quoting App. to Opening
Br. at A47 (Rinow Dep. 10:1–3)).
57
The Board used similar terminology and found that Claimant’s shoulder was “normal” and
“returned to normal” based on Dr. Tadduni’s testimony. Washington I, No. 1445577, at 15, App.
to Opening Br. at A34.
58
Goldsborough v. New Castle Cnty., 2011 WL 51736, at *6 (Del. Super. Jan. 5, 2011).
14
findings of fact and law and where the Board’s decision contains the appropriate details
which led to its reasoning, this Court will not reverse simply because the Board did not
repeat those facts in its “Findings.”’”59 Thus, the Board could look to the “fully recovered”
language and any other language in the decision to support its reasoning that Claimant did
not suffer from a permanent impairment.
However, we hold that it was error for the Board and the Superior Court to rule that
Claimant did not suffer from a permanent impairment based on the “fully recovered”
language in the TTD Opinion. Claims for compensation asserted in a TTD Petition and a
PI Petition differ in an important way. We have previously observed that, “[w]hether an
industrial accident caused temporary total disability or permanent partial disability are two
totally distinct questions.”60 When a claimant petitions the Board for permanent
impairment compensation under Section 2326, “he or she has the burden of proving the
percentage of permanent impairment.”61 On the other hand, when a claimant petitions for
59
Johnson v. E.I. Dupont de Nemours & Co., 2000 WL 33115805, at *3 (Del. Super. Oct. 4,
2000), aff'd, 768 A.2d 469 (Del. 2001) (quoting Justison v. Home Health Corp., 1999 WL 463702,
at *4 (Del. Super. May 19, 1999)).
60
Betts v. Townsends, Inc., 765 A.2d 531, 535 (Del. 2000). Compensation for permanent injuries
under Section 2326 pertains to the compensation paid to a claimant for permanent physical
impairment, “regardless of earning power after the injury.” 19 Del. C. § 2326(a).
61
Griffith v. Wachovia Corp., 2006 WL 1149162, at *3 (Del. Super. Mar. 9, 2006), aff’d, 907 A.2d
145 (Del. 2006); see also Jennings v. Avon Prods., 2013 WL 183738, at *2 (Del. Super. Jan. 4,
2013) (“When determining whether an employee has been permanently impaired, the IAB must
decide whether the employee suffered a permanent loss of use of a member or part of his body and
whether such loss of use was caused by a work accident.”). Further, “[t]he IAB must determine
loss of use based upon the employee’s ability to use that body part; loss of use represents that
degree of normal use which is beyond the employee’s ability or capability.” Id.
15
total disability compensation under Section 2324, the question is whether the claimant was
disabled from working for a period of time.62
The question before the Board in the TTD Petition was whether Claimant had
suffered a recurrence of a total disability, and the experts testified in terms of whether
Claimant was able to return to work. Although there was some testimony that Claimant’s
shoulder injury was “fully recovered” and back to “normal” in the TTD hearing, that
testimony related to whether there had been a recurrence of total disability and whether
Claimant could return to work. The nature of the inquiry in the TTD hearing was not
whether, and to what degree, Claimant may have suffered from a permanent impairment.
DTC argues that the IAB is free to choose between conflicting medical opinions,
and it is the Board’s function to resolve conflicts in medical testimony. The problem with
DTC’s argument is that the Board never considered the expert testimony regarding the
degree of Claimant’s permanent impairment from the experts. Instead, it dismissed the PI
62
See Griffith, 2006 WL 1149162, at *3 (“[W]here the employee claims she is entitled to benefits
for periods of total disability via § 2324, she is charged with proving that claim to the Board’s
satisfaction.” (emphasis added)); McMillan v. General Motors Corp., 1972 WL 122760, at *2
(Del. Super. Nov. 8, 1972) (remanding the case to determine if total disability benefits should be
awarded or denied over the period from 1966 to 1970). See also Huda v. Continental Can Co.,
265 A.2d 34, 36 (Del. 1970) (“It is now well established in this State that the degree of
compensable disability in a workmen’s compensation case depends upon the degree of impairment
of earning capacity; that an employee may be totally disabled economically, and within the
meaning of the Workmen’s Compensation Law, although only partially disabled physically.”
(citing Ham v. Chrysler Corp., 231 A.2d 258, 261 (Del. 1967))); Bigelow v. Sears, Roebuck & Co,
260 A.2d 906, 907 (Del. 1969) (holding that, total disability may be found “if the claimant’s
physical condition is such as to disqualify her from regular employment commensurate with her
qualifications and training” (citing M/A. Hartnett, Inc. v. Coleman, 226 A.2d 910 (Del. 1967)));
Ernest DiSabatino & Sons, Inc. v. Apostolico, 269 A.2d 552, 553 (Del. 1970) (explaining that,
Section 2324 is “designed to reimburse an employee, at least in part, for loss of earnings,” whereas
under Section 2326, regardless of earning power, the employee is to be paid for bodily injury.).
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Petition at the outset.63 Thus, under these circumstances, we agree with the Claimant that
there is a lack of substantial evidence in the record to support a finding that Claimant does
not suffer from a permanent impairment.
B. Neither the Law of the Case Doctrine nor Res Judicata Bars Claimant’s
Petition for Permanent Impairment.
DTC argues both the law of the case doctrine and res judicata bar Claimant’s PI
Petition. We disagree. The law of the case “is established when a specific legal principle
is applied to an issue presented by facts which remain constant throughout the subsequent
course of the same litigation.”64 It is a “self-imposed restriction that prohibits courts from
revisiting issues previously decided, with the intent to promote ‘efficiency, finality,
stability and respect for the judicial system.’”65 The doctrine “presumes a hearing on the
merits and only applies to issues the court actually decided.”66
Similarly, res judicata applies if “1) the court making the prior adjudication had
jurisdiction, 2) the parties in the present action are either the same parties or in privity with
the parties from the prior adjudication, 3) the cause of action [is] the same in both cases or
63
DTC argues that following the IAB’s dismissal of the PI Petition, the record was closed and that,
“Washington cannot rely on their testimony as a basis for his appeal.” Answering Br. at 18.
Although we quote above some of the expert testimony taken in anticipation of the permanent
impairment hearing, we give no specific weight to it as it was not considered in the proceedings
below. We merely hold here that the PI Petition was dismissed prematurely, and that Claimant
should be able to introduce his evidence of permanent impairment.
64
Kenton v. Kenton, 571 A.2d 778, 784 (Del. 1990).
65
State v. Wright, 131 A.3d 310, 321 (Del. 2016) (quoting Cede & Co. v. Technicolor, Inc., 884
A.2d 26, 39 (Del. 2005)).
66
Id. (citations and internal quotation marks omitted). See id. (noting also that “[c]ourts usually
require the issue to have been ‘fully briefed and squarely decided’ in the prior proceedings”
(quoting Hanover Ins. Co. v. Am. Eng’g Co., 105 F.3d 306, 312 (6th Cir. 1997))).
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the issues decided in the prior action [are] the same as those raised in the present case, 4)
the issues in the prior action [were] decided adversely to the plaintiff's contentions in the
instant case, and 5) the prior adjudication [was] final.”67
In order for either to apply, the previously resolved issue must be the same.
However, as explained above, Claimant’s claim for temporary total disability and his claim
for permanent impairment required examining different, albeit related, issues. Although
both parties retained experts in connection with the permanent impairment hearing, both
experts were deposed, and both testified that there was at least some measure of permanent
impairment, the Board never heard any evidence on the issue of permanent impairment.
Accordingly, the law of the case doctrine and res judicata do not apply here.
IV. Conclusion
For the foregoing reasons, we REVERSE the decision below and REMAND this
matter to the Superior Court for further proceedings consistent with this opinion.
67
Chavez v. David’s Bridal, 979 A.2d 1129, 1134 (Del. Super. 2008), aff’d, 950 A.2d 658 (Del.
2008); see also Betts, 765 A.2d at 535 (holding that res judicata was inapplicable to a claimant’s
permanent partial disability claim in connection with a knee injury where the IAB previously made
a determination on his temporary total disability claim for the knee injury, “[b]ecause the Board
was confronted with a different claim at each hearing.”).
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