IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
WILLIAM O’NEAL, ) ) Employee-Below, Appellant, ) C.A. No. N21A-12-004 FWW ) v. ) ) RUAN TRANSPORTATION, ) ) Employer-Below, Appellee. )
Submitted: May13, 2022 Decided: June 2, 2022
MEMORANDUM OPINION
On Appeal from the Industrial Accident Board: REVERSED and REMANDED.
Kenneth F. Carmine, Esquire, LAW OFFICES KENNETH F. CARMINE, P.A. 1719 Delaware Avenue, P.O. Box 30409, Wilmington, DE 19806; Attorney for Appellant William O’Neal.
Nathan V. Gin, Esquire, Vance E. Davis, Esquire, 300 Delaware Avenue, 17th Floor, P.O. Box 1630, Wilmington, DE 19899; Attorneys for Appellee Ruan Transport Corporation.
WHARTON, J. I. INTRODUCTION
William O’Neal (“O’Neal”) filed a Notice of Appeal on December 12, 2021
seeking a review of the November 18, 2021 decision by the Industrial Accident
Board (“Board”). The Board considered Ruan Transportation’s1 (“Ruan”) Petition
for Review of an Agreement as to Compensation, and determined that O’Neal, who
previously had been determined to be totally disabled, was able to return to work as
of July 1, 2021 with an earnings capacity of $1,015.89. The single issue O’Neal
raises in his appeal is whether that figure is supported by substantial evidence. Upon
consideration of the pleadings before the Court and the record below, the Court finds
that the Board’ calculation of O’Neal’s earnings capacity is not supported by
substantial evidence and is inconsistent with the methodology the Board purported
to adopt. Accordingly, the Board’s decision is REVERSED, and the matter
REMANDED to the Board.
II. FACTUAL AND PROCEDURAL CONTEXT
The Board’s decision sets out the procedural posture of the case. O’Neal was
involved in a compensable work related accident on March 31, 2017 while working
for Ruan as a truck driver.2 As a result of the accident, O’Neal received workers’
compensation benefits, including payment for five surgeries and other related
1 Counsel identifies their client as Ruan Transport Corporation, while the Notice of Appeal identifies the Appellee as Ruan Transportation. 2 Decision on Petition for Review Termination, at 2 (Nov. 18, 2021). 2 medical expenses as well as compensation for lost wages. 3 At the time of the
accident, O’Neal’s average weekly wage was $1,096.62.4 Following the accident,
he received temporary total disability benefits of $689.45 per week paid by the
Workers’ Compensation Fund.5
On March 5, 2021, Ruan filed a Petition for Review seeking to terminate
O’Neal’s entitlement to total disability benefits, arguing that O’Neal was physically
capable of returning to work in a capacity that approximates his pre-accident
compensation.6 O’Neal opposed termination, claiming that he was an actual and
prima facie displaced worker entitled to receive ongoing benefits.7
The Board held a hearing on November 8, 2021. O’Neal did not dispute that
he had been released to sedentary to light duty work by his surgeon, Mark Eskander,
M.D. on July 1, 2021.8 After hearing testimony from Barbara Riley, Ph.D., who was
called by Ruan as a vocational expert, and by O’Neal, the Board determined that
O’Neal failed to demonstrate that that he had conducted a reasonable job search
within his limitations, or that he was a prima facie displaced worker.9 As a result,
3 Id. 4 Id. 5 Id. 6 Id. 7 Id. 8 O’Neal’s Op. Br., at 1, D.I. 9. 9 Decision on Petition for Review Termination, at 13-15 (Nov. 18, 2021). 3 the Board granted Ruan’s Petition for Termination.10 The Board then evaluated
O’Neal’s likely wages upon his return to work based on jobs identified by Dr. Riley
in her Labor Market Survey from July 1, 2021 forward.11 The Board identified “a
total of seven sedentary positions with the following employers: AAA Club
Alliance, Sobieski Services, CAPP USA, Inc., LinCare, Inc., Mid Atlantic
Packaging, TC – The Cellular Connection, Winner Ford Hyundai, and TTEC.”12
The Board determined that these jobs provided average weekly wages from $865.77
to $1,166.02.13 The Board bore in mind that due to his absence from the labor force
for a number of years, O’Neal was likely to start at the lower end of the pay scale.14
The Board noted that all of these jobs were sedentary and if O’Neal expanded his
job search to the higher end of his physical capabilities, - light duty - he might earn
more.15 Accordingly, the Board found that the average of the two ranges - $1,015.89
- was the best indicator of O’Neal’s earning potential should he re-enter the labor
force, resulting in a partial disability payment of $53.82.16
10 Id., at 15. 11 Id. 12 Id. Although the Board’s decision referenced seven positions, it listed eight employers. One – AAA Club Alliance – was a part time position. The other seven were full time. The Board only considered full time positions. 13 Id. 14 Id. 15 Id. 16 Id., at 15-16. The figure of $1,015.89 is $80.73 less than his wages of $1,096.62. Two-thirds of $ $80.73 is $50.82. 4 III. THE PARTIES’ CONTENTIONS
O’Neal disputes the Board’s determination that his earning capacity is
$1,1015.89 per week, contending there was no vocational evidence to support that
wage.17 More particularly, he contends that of the seven jobs that Dr. Riley
identified in her Labor Market Survey, only four remained available as of the date
of the hearing.18 The average weekly compensation for those jobs ranged from a
low of $738.63 to a high of $979.04, and it is from that range that the Board should
have made its calculation.19
In response, Ruan argues that the Board’s determination that O’Neal’s earning
potential was $1,015.89 is supported by substantial evidence. Citing Guyer v. Atl.
Realty Mgmt.20 Ruan contends that the Board properly considered all seven jobs in
the Labor Market Survey, since they all were available contemporaneously with the
time O’Neal was capable of working.21
In reply, O’Neal assumes that it was not error for the Board to consider all
seven jobs and not limit itself to the four that were available at the time of the
17 O’Neal’s Op. Br., at 5, D.I. 9. 18 Id., at 7. 19 Id. 20 2013 WL 178730, at *5 (Del. Super. Ct. Apr. 24, 2013). 21 Ruan’s Ans. Br., at 11, D.I. 10. 5 hearing.22 Nonetheless, he argues that, even adopting the Board’s methodology, the
Board miscalculated.23 Using only the highest wage for each of the jobs Dr. Riley
identified, the total of the earnings for those positions is $6,996.15, yielding a high
end average of $999.45, not $1,166.02 as the Board concluded.24 Further, the
Board’s determination departs from Dr. Riley’s conclusion that the average weekly
compensation for full-time work would be between $687.79 and $880.93.25
IV. STANDARD OF REVIEW
The Board’s decision must be affirmed so long as it is supported by substantial
evidence and is free from legal error.26 Substantial evidence is that which a
reasonable mind might accept as adequate to support a conclusion.27 While a
preponderance of evidence is not necessary, substantial evidence means “more than
a mere scintilla.”28 Questions of law are reviewed de novo,29 but because the Court
does not weigh evidence, determine questions of credibility, or make its own factual
22 O’Neal’s Reply Br. at 3, D.I. 13. 23 Id., at 5. 24 Id. 25 Id. 26 Conagra/Pilgrim’s Pride, Inc. v. Green, 2008 WL 2429113, at *2 (Del. June 17, 2008). 27 Kelley v. Perdue Farms,
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
WILLIAM O’NEAL, ) ) Employee-Below, Appellant, ) C.A. No. N21A-12-004 FWW ) v. ) ) RUAN TRANSPORTATION, ) ) Employer-Below, Appellee. )
Submitted: May13, 2022 Decided: June 2, 2022
MEMORANDUM OPINION
On Appeal from the Industrial Accident Board: REVERSED and REMANDED.
Kenneth F. Carmine, Esquire, LAW OFFICES KENNETH F. CARMINE, P.A. 1719 Delaware Avenue, P.O. Box 30409, Wilmington, DE 19806; Attorney for Appellant William O’Neal.
Nathan V. Gin, Esquire, Vance E. Davis, Esquire, 300 Delaware Avenue, 17th Floor, P.O. Box 1630, Wilmington, DE 19899; Attorneys for Appellee Ruan Transport Corporation.
WHARTON, J. I. INTRODUCTION
William O’Neal (“O’Neal”) filed a Notice of Appeal on December 12, 2021
seeking a review of the November 18, 2021 decision by the Industrial Accident
Board (“Board”). The Board considered Ruan Transportation’s1 (“Ruan”) Petition
for Review of an Agreement as to Compensation, and determined that O’Neal, who
previously had been determined to be totally disabled, was able to return to work as
of July 1, 2021 with an earnings capacity of $1,015.89. The single issue O’Neal
raises in his appeal is whether that figure is supported by substantial evidence. Upon
consideration of the pleadings before the Court and the record below, the Court finds
that the Board’ calculation of O’Neal’s earnings capacity is not supported by
substantial evidence and is inconsistent with the methodology the Board purported
to adopt. Accordingly, the Board’s decision is REVERSED, and the matter
REMANDED to the Board.
II. FACTUAL AND PROCEDURAL CONTEXT
The Board’s decision sets out the procedural posture of the case. O’Neal was
involved in a compensable work related accident on March 31, 2017 while working
for Ruan as a truck driver.2 As a result of the accident, O’Neal received workers’
compensation benefits, including payment for five surgeries and other related
1 Counsel identifies their client as Ruan Transport Corporation, while the Notice of Appeal identifies the Appellee as Ruan Transportation. 2 Decision on Petition for Review Termination, at 2 (Nov. 18, 2021). 2 medical expenses as well as compensation for lost wages. 3 At the time of the
accident, O’Neal’s average weekly wage was $1,096.62.4 Following the accident,
he received temporary total disability benefits of $689.45 per week paid by the
Workers’ Compensation Fund.5
On March 5, 2021, Ruan filed a Petition for Review seeking to terminate
O’Neal’s entitlement to total disability benefits, arguing that O’Neal was physically
capable of returning to work in a capacity that approximates his pre-accident
compensation.6 O’Neal opposed termination, claiming that he was an actual and
prima facie displaced worker entitled to receive ongoing benefits.7
The Board held a hearing on November 8, 2021. O’Neal did not dispute that
he had been released to sedentary to light duty work by his surgeon, Mark Eskander,
M.D. on July 1, 2021.8 After hearing testimony from Barbara Riley, Ph.D., who was
called by Ruan as a vocational expert, and by O’Neal, the Board determined that
O’Neal failed to demonstrate that that he had conducted a reasonable job search
within his limitations, or that he was a prima facie displaced worker.9 As a result,
3 Id. 4 Id. 5 Id. 6 Id. 7 Id. 8 O’Neal’s Op. Br., at 1, D.I. 9. 9 Decision on Petition for Review Termination, at 13-15 (Nov. 18, 2021). 3 the Board granted Ruan’s Petition for Termination.10 The Board then evaluated
O’Neal’s likely wages upon his return to work based on jobs identified by Dr. Riley
in her Labor Market Survey from July 1, 2021 forward.11 The Board identified “a
total of seven sedentary positions with the following employers: AAA Club
Alliance, Sobieski Services, CAPP USA, Inc., LinCare, Inc., Mid Atlantic
Packaging, TC – The Cellular Connection, Winner Ford Hyundai, and TTEC.”12
The Board determined that these jobs provided average weekly wages from $865.77
to $1,166.02.13 The Board bore in mind that due to his absence from the labor force
for a number of years, O’Neal was likely to start at the lower end of the pay scale.14
The Board noted that all of these jobs were sedentary and if O’Neal expanded his
job search to the higher end of his physical capabilities, - light duty - he might earn
more.15 Accordingly, the Board found that the average of the two ranges - $1,015.89
- was the best indicator of O’Neal’s earning potential should he re-enter the labor
force, resulting in a partial disability payment of $53.82.16
10 Id., at 15. 11 Id. 12 Id. Although the Board’s decision referenced seven positions, it listed eight employers. One – AAA Club Alliance – was a part time position. The other seven were full time. The Board only considered full time positions. 13 Id. 14 Id. 15 Id. 16 Id., at 15-16. The figure of $1,015.89 is $80.73 less than his wages of $1,096.62. Two-thirds of $ $80.73 is $50.82. 4 III. THE PARTIES’ CONTENTIONS
O’Neal disputes the Board’s determination that his earning capacity is
$1,1015.89 per week, contending there was no vocational evidence to support that
wage.17 More particularly, he contends that of the seven jobs that Dr. Riley
identified in her Labor Market Survey, only four remained available as of the date
of the hearing.18 The average weekly compensation for those jobs ranged from a
low of $738.63 to a high of $979.04, and it is from that range that the Board should
have made its calculation.19
In response, Ruan argues that the Board’s determination that O’Neal’s earning
potential was $1,015.89 is supported by substantial evidence. Citing Guyer v. Atl.
Realty Mgmt.20 Ruan contends that the Board properly considered all seven jobs in
the Labor Market Survey, since they all were available contemporaneously with the
time O’Neal was capable of working.21
In reply, O’Neal assumes that it was not error for the Board to consider all
seven jobs and not limit itself to the four that were available at the time of the
17 O’Neal’s Op. Br., at 5, D.I. 9. 18 Id., at 7. 19 Id. 20 2013 WL 178730, at *5 (Del. Super. Ct. Apr. 24, 2013). 21 Ruan’s Ans. Br., at 11, D.I. 10. 5 hearing.22 Nonetheless, he argues that, even adopting the Board’s methodology, the
Board miscalculated.23 Using only the highest wage for each of the jobs Dr. Riley
identified, the total of the earnings for those positions is $6,996.15, yielding a high
end average of $999.45, not $1,166.02 as the Board concluded.24 Further, the
Board’s determination departs from Dr. Riley’s conclusion that the average weekly
compensation for full-time work would be between $687.79 and $880.93.25
IV. STANDARD OF REVIEW
The Board’s decision must be affirmed so long as it is supported by substantial
evidence and is free from legal error.26 Substantial evidence is that which a
reasonable mind might accept as adequate to support a conclusion.27 While a
preponderance of evidence is not necessary, substantial evidence means “more than
a mere scintilla.”28 Questions of law are reviewed de novo,29 but because the Court
does not weigh evidence, determine questions of credibility, or make its own factual
22 O’Neal’s Reply Br. at 3, D.I. 13. 23 Id., at 5. 24 Id. 25 Id. 26 Conagra/Pilgrim’s Pride, Inc. v. Green, 2008 WL 2429113, at *2 (Del. June 17, 2008). 27 Kelley v. Perdue Farms, 123 A.3d 150, 153 (Del. Super. 2015) (citing Person- Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009)). 28 Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988). 29 Kelley, 123 A.3d at 152–53 (citing Vincent v. E. Shore Markets, 970 A.2d 160, 163 (Del. 2009)). 6 findings,30 it must uphold the decision of the Board unless the Court finds that the
Board’s decision “exceeds the bounds of reason given the circumstances.”31
V. DISCUSSION
In its Decision, the Board properly took into consideration the seven full-time
positions identified by Dr. Riley that were contemporaneously available from July
1, 2021 until the date of the hearing.32 The Court finds that the Board also properly
exercised its discretion in considering O’Neal’s absence from the work force in
recognizing that he might have to start on the low end of the pay scale. The Court
also finds that the Board properly found that O’Neal could increase his earning
capacity by expanding his search to the higher end of his physical capabilities.
While the latter two discretionary determinations above are subjective and
necessarily import a degree of imprecision into the final calculation, it is where the
Board attempts to be precise that it goes astray. In making its calculation based on
the seven full-time positions identified by Dr. Riley as contemporaneously available
after July 1st, the Board states that those positions “provide average weekly wages
ranging from $865.77 on the low end to $1166.02 on the high end.”33 Unfortunately,
30 Bullock v. K-Mart Corp., 1995 WL 339025, at *2 (Del. Super. May 5, 1995) (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66–67 (Del. 1965)). 31 Bromwell v. Chrysler LLC, 2010 WL 4513086, at *3 (Del. Super. Oct. 28, 2010) (quoting Bolden v. Kraft Foods, 2005 WL 3526324, at *3 (Del. Dec. 21, 2005)). 32 Decision on Petition for Review Determination, at 15 (Nov. 18, 2021); See Guyer, at *5. 33 Id., at 15. 7 the Board does not show its work. By the Court’s calculation the total of the high
end wages for the seven jobs is $6,996.15.34 Dividing that total by seven yields an
average high end wage of $999.45, and not the Board’s high end average of
$1,166.02.35 Similarly, the total for the low end wages is $5,194.61.36 Dividing that
by seven results in a low end average of $742.09, and not Board’s figure of $865.77.
Thus, by the Court’s calculations, the average weekly wage range from July 1 st until
November 8th would be $742.09 to $999.45, instead of the Board’s range of $865.77
to $1,166.02.37 Averaging the high and low totals as the Board did produces a
weekly earnings potential of $870.77, not $1,015 as the Board calculated. Thus,
O’Neal’s weekly earnings loss is $1,096.62 minus $870.77, or $225.85, instead of
$80.73. Applying the two-thirds partial disability calculation as the Board did yields
a partial disability payment of $150.57, instead of the Board’s partial disability
payment of $53.82.
34 $720.00 (Sobieski Services) + $1,800.00 (CAP USA, Inc.) + $600.00 (LinCare, Inc.) + $600.00 (Mid Atlantic Packaging) + $1,250.00 (TCC – The Cellular Connection) + $1,346.15 (Winner Ford Hyundai) + $680.00 ((TTEC) = $6,996.15 35 The Court reaches the same high end average as O’Neal does. 36 $720.00 (Sobieski Services) + $1,000.00 (CAP USA, Inc.) + $600.00 (LinCare, Inc.) + $560.00 (Mid Atlantic Packaging) + $865.38 (TCC – The Cellular Connection) + $769.23 (Winner Ford Hyundai) + $680 (TTEC) = $5,194.61. 37 The Court does not accept Dr. Riley range of $687.79 to $880.93, with an average of $784.36 because those numbers were not limited to the seven positions available after July 1, 2021. 8 Because the Court cannot divine substantial evidence upon which the Board
based its calculation of O’Neal’s partial disability benefits, the Board’s conclusion
that he is entitled to partial disability benefits at the rate of $53.82 is REVERSED.
The matter is REMANDED to the Board for it to either to support its calculations
or enter an Order consistent with the Court’s calculations.
VI. CONCLUSION
For the foregoing reasons, the Board’s decision is REVERSED and
REMANDED for further proceedings consistent with this Order.
IT IS SO ORDERED.
/s/ Ferris W. Wharton Ferris W. Wharton, J.