Petition for Writ of Certiorari — Crump v. Best Temps

99 896 NOV 24 }999

OE Fare UF THE > ERK

No. 99-

IN THE

Supreme Court of the United States

MICHAEL CRUMP,

Petitioner,

V.

BEST TEMPS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE DELAWARE SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

———

NoeEL E. Primos

Counsel of Record

JOHN J. SCHMITTINGER

WALT F. SCHMITTINGER

SCHMITTINGER & RODRIGUEZ, P.A.

Attorneys for Petitioner

414 South State Street

P.O. Box 497

Dover, Delaware 19901

(302) 674-0140

155758 ©) Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

l

QUESTION PRESENTED

Does Delaware’s displaced worker doctrine violate the

Supremacy Clause of the United States Constitution and the

Fourteenth Amendment to the Constitution because it

requires an individual claiming total disability benefits under

the workers’ compensation laws of the State of Delaware to

waive his or her rights under the Americans With Disabilities

Act, 42 U.S.C. § 12101, er seq.?

i

TABLE OF CONTENTS

Page

Questeodt Presemted .....nisiduneses eee eer i

Table of Comtemmie oo .s.s sc duu se eee il

Table of Cited AmGROreaes ..0.66ccsccissctscses lil

Table Of AGROREION o.6si cn dsdgannst eee Vv

Optatons Bekee? oo oicp nee bee l

Statement of JurisGecthOM . . 5 ok kk ccs eens l

Constitutional and Statutory Provisions Involved . 2

Statement Of the Case ..kckssiciss eee 2

Reasons for Granting the Writ ................. 4

PERT rr ee 12

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TABLE OF CITED AUTHORITIES

Page

Cases:

Air Mod v. Newton, Del. Supr., 215 A.2d 434 (1965)

SUT al ee 0 hak ded a ee bok Ka ok wmvces 8

Ellison v. Software Spectrum, Inc., 85 F.3d 187

DM I pe ws cua oR a vb ee ec cack 7

Franklin Fabricators v. Irwin, Del. Supr., 306 A.2d

Nr doh b vek a ok k boon ch vn cok 4,5,10

Keeler v. Metal Masters, Del. Super., C.A. No.

97A-06-002, Terry, R.J. (December 31, 1997),

aff'd, 712 A.2d 1004 (Del. Se ex ace 3

Ray v. Glidden Co., 85 F.3d 227 (Sth Cir. 1996) .. 7

Schmitt v. Cecil Vault, Del. Super., C. A. No. 82A-

NO-12, Bifferato, J. (August 17, i) ere 5, 6,8

Statutes:

Cf Es ]

Se l

42 U.S.C. § 12101, er ee Nee aie grr a ade i

Oe 9

iv

Cited Authorities

Page

gk Eee ee > rer rs re en 7

Eek foe Br | aS eer rere 7

SP UE. © ER bk avs SA cA eked cass 2

United States Constitution:

CE Oe ei hou e kel ak bale ek be eas ea yp

Fourteenth Amendment ......................-. ee

Rule:

Es Ns a 2s cae Ke Te Eas wae oe ce ]

TABLE OF APPENDICES

Appendix A — Order Of The Supreme Court Of The

State Of Delaware Dated And Decided August 26,

i ER re re PEM Tey etn eee eas

Appendix B — Order Of The Superior Court Of The

State Of Delaware In And For Kent County Dated

And Decided March 9, 1999 ................

Appendix C — Decision Of The Industrial Accident

Board Of The State Of Delaware On Petition For

Termination Of Benefits Dated June 25, 1998 ..

Page

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3a

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Petitioner Michael Crump respectfully requests that a

Writ of Certiorari be issued to review the judgment of the

Delaware Supreme Court in this case.

OPINIONS BELOW

A copy of the unpublished order of the Delaware

Supreme Court in Crump v. Best Temps, No. 97, 1999

(Del. Aug. 26, 1999), is attached hereto (App. A).

The unpublished opinion of the Delaware Superior Court in

Crump v. Best Temps, C. A. No. 98A-06-002 HDR

(Del. Super. March 9, 1999), is also attached hereto (App.

B.). Finally, the unpublished opinion of the Industrial

Accident Board in Crump v. Best Temps, Hearing

No. 1108926 (Del. IAB June 25, 1998), is attached hereto

(App. C.).

STATEMENT OF JURISDICTION

The judgment of the Delaware Supreme Court was

entered on August 26, 1999.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(a).

Because the constitutionality of a judicial doctrine under

Delaware law, the displaced worker doctrine, is drawn into

question by this appeal, 28 U.S.C. § 2403(b) may apply.

Accordingly, this Petition shall be served on the Attorney

General of the State of Delaware pursuant to Supr. Ct. R.

29.4(c).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article VI of the United States Constitution provides in

relevant part: “This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof. . . shall be

the supreme Law of the Land; and the Judges in every State

shall be bound thereby, any Thing in the Constitution or Laws

of any State to the Contrary notwithstanding.”

The Fourteenth Amendment to the United States

Constitution provides in relevant part: ““No State shall make

or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property without

due process of law... .”

42 U.S.C. § 12112(d)(2)(A) provides in relevant part:

‘“.. .a covered entity shall not conduct a medical examination

or make inquiries of a job applicant as to whether such

applicant is an individual with a disability or as to the nature

or severity of such disability.”

STATEMENT OF THE CASE

The proceedings in this case began before the Industrial

Accident Board of the State of Delaware (hereinafter “IAB”

or “Board”’), the Delaware administrative agency with

primary jurisdiction over workplace injuries in the State of

Delaware. The instant case began with the Employer/

Respondent’s filing of a petition to terminate Mr. Crump’s

ongoing total disability benefits on January 15, 1998. That

petition came before the IAB at a hearing on June 16, 1998,

at which time Petitioner’s counsel raised the issue of conflict

3

between the Americans with Disaiblities Act, supra, and the

Displaced Worker Doctrine, and contended that the

Displaced Worker Doctrine was unconstitutional under the

Supremacy Clause of the United States Constitution.

See Trial Transcript at pp. 93, 139. Following the hearing,

the Board entered an order terminating Mr. Crump’s ongoing

total disability benefits, the Board having declined to pass

on the constitutionality argument. Michael Crump v. Best

Temps, 1AB Hearing No. 1108926 (June 16, 1998).

The Petitioner subsequently appealed the Board’s

decision terminating Petitioner’s ongoing total disability

benefits to the Superior Court of the State of Delaware.

Therein, the Petitioner asserted that the Displaced Worker

Doctrine, as applied in Delaware by the Industrial Accident

Board, violated due process and the Supremacy Clause of

the United States Constitution. The Superior Court,

referencing its earlier decision in Keeler v. Metal Masters.

Del. Super., C.A. No. 97A-06-002, Terry, R.J. (December

31, 1997), aff'd, 712 A.2d 1004 (Del. 1998), ruled that the

displaced worker doctrine and the ADA and the parallel

Delaware Statute, the Delaware Handicapped Persons

Employment Protection Act, do not conflict. /d. at 10. The

Superior Court affirmed the Board’s termination of Mr.

Crump’s total disability benefits.

Parenthetically, the Superior Court’s decision in Keeler.

supra, had been appealed to the Delaware Supreme Court,

which had ruled that the constitutional issue was not ripe for

decision because Mr. Keeler had not performed a reasonable

job search. Because the Court’s decision turned on the

Board’s credibility determination, which was affirmed. the

Court had declined to reach the constitutional issue presented.

Keeler v. Metal Masters, Del. Supr., 712 A.2d 1004, 1006

(1998).

4

Following the Superior Court’s decision in Crump v. Best

Temps, Mr. Crump took a further appeal to the Supreme

Court of the State of Delaware, again raising the conflict

between the Constitution and the Displaced Worker Doctrine.

The Delaware Supreme Court, after briefing and oral

argument, affirmed the Superior Court’s decision in a one-

page order that referenced “the reasons set forth in, [sic.]

the well-reasoned decision of the Superior Court. . . .” Crump

v. Best Temps, Del. Supr., No. 97, 1999, Walsh, J. (August

26, 1999).

Petitioner thereafter has filed the instant Petition for Writ

of Certiorari with the United States Supreme Court.

REASONS FOR GRANTING THE WRIT

The basis for the grant of a Writ of Certiorari in the

instant case is that the Delaware Supreme Court has decided

an important question of federal law that has not been, but

should be, settled by this Court. The issue presented by this

case involves the interaction between the Americans with

Disabilities Act and the judicially-created Displaced Worker

Doctrine under Delaware’s workers’ compensation law.

The leading case on the Displaced Worker Doctrine in

Delaware is Franklin Fabricators v. Irwin, Del. Supr., 306

A.2d 734 (1973). Therein, the Delaware Supreme Court

described the doctrine as follows:

If the evidence of degree of obvious physical

impairment, coupled with other factors such as

the injured employee’s mental capacity,

education, training, or age, places the employee

prima facie in the “odd-lot” category, as defined

3

in Hartnett and Ham, the burden is on the

employer, seeking to terminate total disability

compensation, to show the availability to the

employee of regular employment within the

employee’s capabilities. This was the situation in

Ham and Bigelow v. Sears, Roebuck & Company,

Del. Supr., 206 A.2d 906 (1969). If, on the other

hand, the evidence of degree of physical

impairment, coupled with the other specified

factors, does not obviously place the employee

prima facie in the “odd-lot” classification, the

primary burden is upon the employee to show that

he has made reasonable efforts to secure suitable

employment which have been unsuccessful

because of the injury; upon such prima facie

Showing of “odd-lot” classification, the Ham

burden of proof is imposed upon the employer,

seeking to terminate total disability compensation,

to show availability to the worker, thus

“displaced”, of regular employment within his

capabilities.

306 A.2d at 737.

The Superior Court further expounded on the methods

of proof available to a claimant under the Displaced Worker

Doctrine in Schmitt v. Cecil Vault, Del. Super., C. A. No.

82A-NO-12, Bifferato, J. (August 17, 1983). In Schmitt, the

claimant testified that he had made 2-4 job applications per

week and that he had been unsuccessful in obtaining

employment. The Court noted that presenting evidence that

prospective employers had said they would not hire the

claimant because of his handicap is not the sole means by

which the Claimant may satisfy the displaced worker burden

6

of proof. In addition, the Court held that “if a claimant makes

such efforts and informs prospective employers of his

physical impairment and is unsuccessful, it is reasonable to

infer from these facts that there is no reasonably stable market

for his services which are limited because of his injury.” /d.

(emphasis added).

The first method of proof referenced by the Court in

Schmitt, presenting evidence that prospective employers

testified that they would not hire the Claimant because of

his injury, is, as a practical matter, an impossibility.

Such admissions are not forthcoming from employers, and

particularly not under oath at a legal proceeding, as they

could subject the prospective employer to a charge of

employment discrimination under the Americans with

Disabilities Act and any corresponding state statute, such as

Delaware’s Handicapped Persons Employment Protection

Act. Thus, this method, while technically an available means

of proving the workers’ compensation claimant’s case, is

realistically not available to claimants.

The second method described in Schmitt, supra, is a job

search which includes disclosure by the claimant of his

physical impairment, which search is not successful in

obtaining employment for the Claimant. It is this sole

remaining means by which the Claimant may establish that

he is a displaced worker that violates the Supremacy Clause

of the United States Constitution by virtue of its conflict

with the Americans with Disabilities Act.

As an initial matter, the applicability of the Americans

with Disabilities Act to workers’ compensation claimants

generally, and to Petitioner in particular, is not a difficult

question. The Americans with Disabilities Act is drawn very

7

broadly, to encompass all individuals with a “disability.”

The term disability is defined very broadly under the statute:

(A) a physical or mental impairment that

substantially limits one or more of the major life

activities of such individual:

(B) arecord of such impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). Further, “major life activity” can

include not simply working, but also such activities as lifting,

reaching, sitting or standing. Ray v. Glidden Co., 85 F.3d

227 (Sth Cir. 1996). Under subsection (C) of § 12102(2), an

injured worker need not even have an impairment that would

qualify as a disability — he need only be thought of as having

such an impairment. Further, while an injury that precludes

one type of job does not constitute a substantial limitation

in the ability to work, the impairment that precludes that

type of work generally is sufficient to create such a limitation.

Ellison v. Software Spectrum, Inc., 85 F.3d 187 (Sth Cir.

1996). Indeed, the prospective employer’s perception that

such limitation exists is sufficient to afford the applicant the

protections of the ADA. Jd.

Specifically with reference to Mr. Crump, his injuries

are so substantial as to limit him to sedentary duty only,

even according to the Employer’s medical witness. It seems

self-evident that Mr. Crump would be protected by the

provisions of the ADA, pursuant to which even being

regarded as having an impairment of a major life activity is

sufficient to warrant protection under the statute.

8

Thus, under Delaware law, once a workers’

compensation claimant applies for jobs and discloses his

injury, if he is not hired, a presumption arises under Schmitt

that he was unsuccessful in his job search because of his

injury. Clearly, in the absence of disclosure of the Claimant’s

injuries and limitations, there can be no inference — the

prospective employer must know of the injury in order to

decline to hire the Claimant on that basis. Further, the

Claimant is required to disclose his injuries to prospective

employers, lest he be barred from receiving workers’

compensation benefits in the future. Air Mod v. Newton, Del.

Supr., 215 A.2d 434 (1965). As a result, under Delaware

workers’ compensation law, the Claimant is compelled to

make an election of remedies. He is forced to choose between

the ADA and DHPEPA, which afford him a greater

opportunity to return to work, and the Delaware workers’

compensation law, which affords him benefits if he is unable

to return to work because of his injury, but which denies

him the protections of the antidiscrimination statutes. This

requirement that the Claimant elect his remedies between

workers’ compensation and the Americans with Disabilities

Act works a deprivation of either the federally-protected

rights afforded by the antidiscrimination statutes or the

legislative remedy of workers’ compensation, the exclusivity

provisions of which bar any other action at common law

against the employer for the Claimant’s injuries.

The United States Congress has made legislative findings

concerning the existence of discrimination:

... [H]istorically, society has tended to isolate

and segregate individuals with disabilities, and,

despite some improvements, such forms of

discrimination against individuals with

9

disabilities continue to be a serious and pervasive

social problem;

... [Discrimination against individuals with

disabilities persists in such critical areas as

employment, housing, public accomodations,

education, transportation, communication,

recreation, institutionalization, health services,

voting, and access to public services;

* * *

... [I]ndividuals with disabilities continually

encounter various forms of discrimination,

including outright intentional exclusion, the

discriminatory effects of architectural,

transportation and communication barriers,

overprotective rules and policies, failure to make

modifications to existing facilities and practices,

exclusionary qualification standards and criteria,

segregation, and relegation to lesser services,

programs, activities, benefits, jobs, or other

opportunities;

. .. [C]ensus data, national polls, and other studies

have documented that people with disabilities, as

a group, occupy an inferior status in our society,

and are severely disadvantaged socially,

vocationally, economically and educationally. . .

42 U.S.C. § 12101(a). United States Congressional findings

recognize the pervasive existence of discrimination and

disparate treatment of those with physical disabilities and

limitations. Congress has specifically recognized that this

10

disparate treatment and outright discrimination exists in the

area of employment. However, notwithstanding these federal

findings, Delaware workers’ compensation claimants must

repeatedly prove the existence of this discrimination under

the Displaced Worker Doctrine, by demonstrating that they

have looked for work but been denied because of their injury,

in order to obtain or continue to obtain lost wage benefits

following an industrial injury.

The instant case is a perfect example of the injustice

that results from the conflict between the federal right granted

under the ADA and the Delaware Displaced Worker

Doctrine. The Industrial Accident Board found that Mr.

Crump was not prima facie displaced. The burden under

Irwin, supra, shifted to Mr. Crump to demonstrate that he

had looked for work but had been denied because of his

injury. Mr. Crump had a documented job search of literally

hundreds of job applications. Based on evidence of a job

search that was characterized by the Board as “extensive,”

the Board found that Mr. Crump had met his burden of

proving that he had looked for work but been denied because

of his injury. In order to obtain that result, Mr. Crump had

relinquished his rights under the Americans with Disabilities

Act: by disclosing his injury and limitations to the

prospective employers, Mr. Crump effectively waived the

protections afforded by the ADA which are intended to help

Mr. Crump reach parity and compete on an equal footing

with other, nondisabled applicants for those positions.

The Employer’s case involved a vocational specialist

who testified as to nine jobs she had found meeting Mr.

Crump’s qualifications and restrictions, that she believed

were available to Mr. Crump, but that none of these

employers had offered employment to Mr. Crump. She gave

1]

her opinion without ever having met the Claimant, so she

had no idea that Mr. Crump had a severe speech impediment

that would preclude any employment involving telephone

communications. After excluding those jobs from the labor

market survey, a mere four jobs remained which the Board

felt were appropriate for Mr. Crump. The Board terminated

Mr. Crump’s total disability benefits on the basis of those

four jobs.

The end result is that Mr. Crump has been forced to

abandon the protection afforded by the ADA in favor of his

worker’s compensation claim, for which he was successful

in meeting his burden, and yet he still has no job and no

workers’ compensation benefits. He has effectively been

denied the assistance of both systems, each of which has as

its primary purpose the protection of Mr. Crump and people

like him.

12

CONCLUSION

Delaware’s Displaced Worker Doctrine violates the

Americans with Disabilities Act and the Supremacy Clause

of the United States Constitution, in that it requires injured

workers to abandon the rights afforded by the ADA in the

pursuit of an action to recover workers’ compensation

benefits. The application of the Displaced Worker Doctrine

by the Delaware Industrial Accident Board and the Delaware

Superior and Supreme Courts abridges the workers’

compensation claimant’s federal right to equal protection of

the laws. The peculiar result in Delaware, as demonstrated

by the instant case, is that workers’ compensation claimants

who also fall within the protection of the Americans with

Disabilities Act and who should have the benefit of both

systems, are effectively afforded Jess protection, rather than

greater protection that should be afforded by coverage under

both statutes. It is this hardship that results from the conflict

between the Americans with Disabilities Act and the

Delaware Displaced Worker Doctrine that Petitioner seeks

to remedy by resort to this Petition for Certiorari. Petitioner

therefore humbly requests that the Court consider and grant

Petitioner’s application.

Respectfully submitted,

NoeEL E. Primos

Counsel of Record

JOHN J. SCHMITTINGER

WALT F. SCHMITTINGER

SCHMITTINGER & RODRIGUEZ, P.A.

Attorneys for Petitioner

414 South State Street

P.O. Box 497

Dover, Deiaware 19901

(302) 674-0140

APPENDIX

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APPENDIX A — ORDER OF THE SUPREME

COURT OF THE STATE OF DELAWARE DATED

AND DECIDED AUGUST 26, 1999

IN THE SUPREME COURT OF THE

STATE OF DELAWARE

No. 97, 1999

MICHAEL CRUMP,

Claimant Below.

Appellant,

V.

BEST TEMPS,

Employer Below.

Appellee

Court Below: Superior Court of the State of

Delaware in and for Kent County

C.A. No. 98A-06-002

Submitted: July 27, 1999

Decided: August 26, 1999

Before WALSH, HOLLAND, and BERGER, Justices.

ORDER

This 26th day of August 1999, upon consideration of

the briefs of the parties, we conclude that this appeal should

2a

Appendix A

be affirmed on the basis of, and for the reasons set forth in,

the well-reasoned decision of the Superior Court dated March

9, 1999.

NOW, THEREFORE, IT IS ORDERED that the

judgment of the Superior Court be, and the same hereby is,

AFFIRMED.

BY THE COURT:

s/ [illegible]

Justice

3a

APPENDIX B — ORDER OF THE SUPERIOR COURT

OF THE STATE OF DELAWARE IN AND FOR KENT

COUNTY DATED AND DECIDED MARCH 9, 1999

IN THE SUPERIOR COURT OF THE

STATE OF DELAWARE

IN AND FOR KENT COUNTY

C.A. No. 98A-06-002 HDR

MICHAEL CRUMP,

Claimant Below-

Appellant,

V.

BEST TEMPS,

Employer Below-

Appellee.

Submitted: January 4, 1999

Decided: March 9, 1999

* * +

RIDGELY, President Judge

ORDER

This 9th day of March, 1999, upon consideration of

briefs filed by counsel and the record below, it appears that:

4a

Appendix B

(1) Appellant, Michael Crump (“Crump”) filed this

appeal from the June 25, 1998 decision of the Industrial

Accident Board (“Board”) terminating his ongoing total

disability benefits.

(2) On August 8, 1997, while employed with Best

Temps, Crump fell while chipping ice out of a freezer and

sustained compensable injuries to his low back, hip and groin.

Shortly thereafter, Crump sought treatment from his

physician, Dr. Rudin. After examining the extent of Crump’s

injuries, Dr. Rudin instructed Crump not to return to work.

Thereafter, Crump began receiving total disability benefits.

(3) Prior to the August 1997 accident, Crump sustained

a serious injury to his lower back in October of 1993, while

in the employ of James Julian, Inc. As a result of the severity

of the injuries sustained, Crump underwent a lumbar fusion

at two levels which was performed by Dr. Rudin on

September 27, 1994.

In January of 1996, Dr. Rudin referred Crump for a

functional capacities evaluation in order to determine

Crump’s physical capabilities following the 1993 work

related injury. This test was performed nearly a year and a

half after Crump’s lumbar fusion surgery took place. At this

point, Crump was well past the time that ts generally

considered a good bench mark for considering an injury to

be permanent in that further improvement would not be

expected. Crump’s functional capacities evaluation

determined that he was limited to performing sedentary work

on a part-time basis. Thereafter, in 1996, Dr. Rudin released

Crump to return to light duty work on a trial basis in order

Sa

Appendix B

to determine how Crump was able to tolerate the physical

demands of light duty employment. In August of 1996,

Crump’s lost wage claim with the worker’s compensation

carrier for James Julian, Inc. was commuted for the lump

sum of $60,000.00 and he was compensated for a 30%

impairment to his low back as a result of his 1993 injury.

Crump next sought treatment from Dr. Rudin on

December 11, 1996, more than three years after his October

1993 injury. At this examination, Crump noted that he was

doing poorly in that he had attempted to return to work in

several different positions but, due to extensive back pain,

he was physically unable to work. Thereafter, Crump did

not seek further treatment from Dr. Rudin until after his

August 1997 accident.

Upon returning to Dr. Rudin, Crump stated that he had

been able to work pain free until the accident with Best

Temps occurred. This report contradicted the statements

made by Crump to Dr. Rudin during his December 11, 1996

visit, however. After examining Crump’s injuries, Dr. Rudin

noted a fracture of the femur and a lumbar strain which was

an exacerbation of Crump’s prior problem. Dr. Rudin started

Crump on physical therapy and instructed him not to return

to work. Shortly thereafter, Crump began receiving total

disability benefits.

(4) On January 15, 1998, Best Temps filed a petition to

terminate Crump’s total disability benefits on the basis that

Crump’s total disability had ended and he had been released

to return to work on a sedentary to light duty basis.

6a

Appendix B

At the hearing before the Board, Dr. Rudin and Dr. Case

offered testimony, through depositions, as to the extent of

Crump’s injuries. Specifically, Dr. Case testified that he

examined Crump on December 16, 1997 and March 24, 1998.

Based on these examinations and a review of Crump’s

medical records, Dr. Case concluded that Crump was still

having symptoms from his prior back injury at the time of

the August 1997 slip and fall. Although Crump reported an

increase in symptoms after his 1997 injury, there was no

disruption to the spine fusion as a result of the Best Temps

injury. Therefore, after the December 1997 examination, Dr.

Case recommended that Crump be restricted to obtaining

sedentary to light duty employment. However, at the March

1998 examination, Crump reported an increase in symptoms.

Dr. Case testified that Crump demonstrated a decreased range

of motion in his back in March of 1998 than he had displayed

at the December 1997 examination, despite having

participated in physical therapy. Based on Crump’s

subjective complaints, Dr. Case restricted Crump to

performing sedentary work only.

Similarly, Dr. Rudin offered testimony as to Crump’s

medical condition. Dr. Rudin testified that he has been

Crump’s treating physician since the 1993 industrial

accident. Dr. Rudin stated that in May of 1996 he released

Crump to perform sedentary to light duty work, however,

due to Crump’s increased complaints, Dr. Rudin considered

Crump totally disabled as of December, 1996. Dr. Rudin

testified that after the 1997 work accident he re-examined

Crump and diagnosed a fracture in the hip and a lumbar

sprain. Dr. Rudin stated that the lumbar sprain was an

exacerbation of Crump’s previous injury. Thereafter, in

7a

Appendix B

January of 1998, Dr. Rudin opined that Crump was not quite

back to his pre-accident condition. Moreover, Dr. Rudin

explained that in March of 1998, he examined Crump again

and determined that he was totally disabled. However, Dr.

Rudin indicated that Crump should be able to return to work

in two months with sedentary work restrictions. Lastly, Dr.

Rudin testified that Crump has a severe stuttering problem

in that he can barely complete a sentence without stuttering.

Dr. Rudin noted that Crump had been treated unsuccessfully

in the public school system for his speech impediment and

most recently sought treatment from Dr. Giletto.

In addition to the testimony offered by Drs. Case and

Rudin, Barbara Stevenson, a vocational rehabilitation

specialist testified regarding the results of her labor market

survey. Ms. Stevenson conducted a labor market survey in

order to determine the availability of suitable employment

for an individual with Crump’s capabilities. Ms. Stevenson

testified that she located nine sedentary entry-level positions

and one light duty position. However, at the time Ms.

Stevenson conducted her labor market survey, she was

unaware of the existence of Crump’s speech impediment.

Therefore, depending on the severity of the stutter, Ms.

Stevenson testified that five of the identified positions may

fall outside of Crump’s qualifications. Lastly, in explaining

the results of her labor market survey, Ms. Stevenson noted

that Delaware’s unemployment rate was at an all-time low

at under 5 percent. In light of her findings and the strength

of the Delaware job market, Ms. Stevenson opined that

Crump would be able to find a job paying at least minimum

wage, provided he conduct a bona fide job search in an effort

to obtain employment.

8a

Appendix B

In response, Crump testified that he was 33 years old,

has a high school education, has no experience with

computers or business machines and cannot type or take

shorthand. Crump stated that, although Dr. Rudin had advised

him not to work after his 1997 injury, he did conduct a

thorough job search, focusing mainly on management level

positions, but was unable to find employment due to his work

related injury. In support of his contention, Crump provided

the Board with a 188 page document compiling his job search

efforts including copies of his resume, completed

employment applications and newspaper advertisements for

job openings that he had responded to. Moreover, Crump

stated that there were four employers who specifically

refused to hire him because of his injury. Lastly, in support

of his position, Crump submitted into evidence letters from

several of the employers named in the labor market survey

implying that Ms. Stevenson did not comply with the

necessary requirements of performing a labor market survey.

(5) Based on the testimony and the evidence presented,

the Board determined that Crump was no longer totally

disabled. In reaching its decision, the Board relied on Dr.

Case’s testimony that Crump was capable of sedentary work

and, therefore, was medically capable of returning to work.

After making this determination, the Board shifted the burden

of proof from Best Temps to Crump to demonstrate that he

is vocationally displaced, either because he is prima facie a

displaced worker or because he made a reasonable job search

that failed because of his work related injury.

Although the Board questioned the sincerity of Crump’s

job search efforts, the Board determined that, based on the

9a

Appendix B

number of contacts Crump made to employers looking for

work and the number of applications he submitted, Crump

conducted a reasonable job search that was unsuccessful

because of his work related injury. Once Crump met this

burden, the Board, once again, shifted the burden to Best

Temps to show the availability of employment within

Crump’s restrictions. The Board focused on the testimony

of Ms. Stevenson and concluded that, based on the low

unemployment rate throughout Delaware, the results of the

labor market survey and the supporting testimony, Best

Temps satisfied its burden of proving the availability of

employment within Crump’s restrictions and, therefore,

Crump was not entitled to continue receiving total disability

compensation. Thus, the Board granted Best Temps petition

to terminate and declined to award Crump any temporary

partial disability benefits on the basis that Crump suffered

no diminution of his earning capacity. Thereafter, Crump

filed this appeal.

(6) On appeal, Crump contends that in placing the

burden of proof upon him to demonstrate that he made

reasonable efforts to secure employment which were

unsuccessful because of his injury the Board essentially

forced him to relinquish his rights under the Americans with

Disability Acts (“ADA”) and the Delaware Handicapped

Persons’ Employment Protections Act (“DHPEPA”) to

decline to advise prospective employers of his limitations.

Based on this assertion, Crump argues that the displaced

worker doctrine is in conflict with the ADA and DHPEPA

and thus, must be discarded or amended to conform to the

Federal Act. Additionally, Crump maintains that the Board’s

decision is not supported by substantial evidence in that Best

10a

Appendix B

Temps failed to adequately prove that jobs were available to

Crump. Moreover, Crump argues that the Board’s decision

is against the great weight of the evidence since Crump has

demonstrated an extensive job search which was accepted

by the Board. Therefore, based on the record below, Crump

maintains that the Board’s decision is not supported by

substantial evidence and, therefore, must be reversed.

(7) In response, Best Temps contends that the Board’s

decision is supported by substantial evidence in that, after

considering the conflicting medical testimony, the Board

accepted Dr. Case’s conclusion that Crump was physically

capable of performing sedentary work and that he was no

longer physically disabled. Additionally, the testimony of

Ms. Stevenson regarding the number of jobs available to an

individual with Crump’s medical restrictions was sufficient

to support the bward’s decision that jobs were available to

Crump within his restrictions. Furthermore, Best Temps

contends that substantial evidence exists to support the

Board’s decision that Crump was not a prima facie displaced

worker since Crump possesses a varied employment

background and has ample management experience. Thus,

Best Temps maintains that Crump is not entitled to receive

total disability benefits. Lastly, Best Temps contends that

the displaced worker doctrine does not conflict with the ADA

or the DHPEPA in that those statutes do not bar an individual

from proving that he has conducted a reasonable job search.

Therefore, for the reasons stated above, Best Temps contends

that the decision of the Board is supported by substantial

evidence and thus, must be affirmed.

(8) Upon an appeal from a decision of the Industrial

Accident Board, the role of this Court is to determine whether

lla

Appendix B

substantial evidence exists on the record to support the

Board’s decision and if the decision is free from legal error.!

Substantial evidence means such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.’ If there is substantial supporting evidence for

the Board’s decision and no mistake in law, the decision

will be affirmed.’ This Court does not weigh the evidence,

determine questions of credibility, or make its own factual

findings.* It merely determines if the evidence is legally

adequate to support the Board’s factual findings.°

(9) It is well settled in Delaware that “[t]he function of

reconciling inconsistent testimony or determining credibility

is exclusively reserved for the Board.’ Additionally, “i]t

1. General Motors Corp. v. Freeman, Del. Supr., 164 A.2d

686, 688 (1960); Johnson v. Chrysler Corp., Del. Supr., 213 A.2d

64, 66 (1965); General Motors Corp. v. Jarrell, Del. Super., 493

A.2d 978, 980 (1985).

2. Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., Del.

Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del.

Super., 517 A.2d 295, 297 (1986), app. dism., Del. Supr., 515 A.2d

397 (1986).

3. Longobardi v. Unemployment Ins. Appeal Bd., Del. Super.,

287 A.2d 690, 692 (1971), aff'd, Del. Supr., 293 A.2d 295 (1972).

4. Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66

(1965).

5. 29 Del. C. § 10142(d).

6. Simmons v. Delaware State Hospital, Del. Supr., 660 A.2d

384, 388 (1995) (citing Breeding v. Contractors-One-Inc., Del.

Supr., 549 A.2d 1102, 1106 (1988)).

12a

Appendix B

is entirely proper and appropriate for the Board to accept

the medical testimony of one expert witness over that of

another.”’ Therefore, in reaching its decision, the Board’s

acceptance of Dr. Case’s testimony regarding the extent of

Crump’s disability was completely within the Board’s

discretion and thus, not contrary to law.

Moreover, in reaching its conclusion, the Board relied

on the testimony of Ms. Stevenson and concluded that Best

Temps had met its burden of demonstrating the availability

of employment within Crump’s capabilities. The Board’s

decision was based on the low unemployment rate throughout

Delaware, the results of the labor market survey and the

supporting testimony of Ms. Stevenson. Therefore, there is

substantial evidence in the record to support the Board’s

decision.

(10) Lastly, in Keeler v. Metal Masters Inc., the Court

addressed the displaced worker doctrine in the context of

the ADA and DHPEPA. In deciding the same issue as

presented in this case, the Court determined that “[t]he

displaced worker doctrine and the ADA and DHPEPA do

not clash.’* In reaching its decision, the Court noted that

“{a]lthough the claimant must prove that he conducted a

reasonable job search, he is not prevented from doing so by

7. Simmons, 660 A.2d at 388 (citing General Motors Corp. v.

Veasey, Del. Supr., 371 A.2d 1074 (1977), overruled on other

grounds by, Duvall v. Charles Connell Roofing, Del. Supr., 564

A.2d 1132 (1980)).

8. Keeler v. Metal Masters Inc., Del. Super., C.A. No. 97A-

06-002, Terry, R.J. (Dec. 31, 1997) (Opinion).

l3a

Appendix B

the anti-discrimination statutes. The existence of a job

applicant’s disability can properly be considered under the

anti-discrimination statutes and in a proper case a claimant

can meet his burden of proof under the Workmen’s

Compensation laws either by direct or inferential evidence.’”

For the reasons stated above, this Court finds that

substantial evidence exists to support the Board’s decision

terminating Crump’s total disability benefits and further that

there was no legal error.

NOW, THEREFORE, IT IS ORDERED that the

decision of the Industrial Accident Board is AFFIRMED.

s/ [illegible]

President Judge

9. Id.

l4a

APPENDIX C — DECISION OF THE INDUSTRIAL

ACCIDENT BOARD OF THE STATE OF DELAWARE

ON PETITION FOR TERMINATION OF BENEFITS

DATED JUNE 25, 1998

BEFORE THE INDUSTRIAL ACCIDENT BOARD

OF THE STATE OF DELAWARE

Hearing No. 1108926

MICHAEL CRUMP,

Employee,

v.

BEST TEMPS,

Employer.

DECISION ON PETITION

FOR TERMINATION OF BENEFITS

Pursuant to due notice of time and place of hearing

served on all parties in interest, the above-stated cause came

before the Industrial Accident Board on June 16, 1998, in

the Hearing Room of the Board, Milford, Delaware.

PRESENT:

IRVING S. LEVITT

R. HOWARD SEWARD

* * *

lSa

Appendix C

NATURE AND STAGE OF THE PROCEEDINGS

On January 15, 1998, Best Temps filed a Petition for

Termination of Benefits seeking to terminate the total

disability benefits of Michael Crump (“Claimant”) stemming

from an August 8, 1997 work accident.

SUMMARY OF THE EVIDENCE

Claimant, age thirty-three, testified that in October 1992

he injured his back while working as a laborer for an

employer other than Best Temps. As a result of that injury,

Dr. Rudin performed lumbar fusion surgery. In April 1995,

Dr. Freedman assessed a 43 percent permanent impairment

to Claimant’s low back. Pursuant to a compensation

agreement, Claimant was paid workers’ compensation

benefits for a 30 percent permanent impairment of his low

back. In December 1996 Claimant reported to Dr. Rudin that.

despite several attempts, he was unable to work. As a result.

Dr. Rudin recommended that he refrain from working.

Several months later, Claimant returned to work for Best

Temps, as a laborer at the Dover Air Force Base. His next

assignment, through Best Temps, was at Quality Kitchen

On August 8, 1997, Claimant slipped and fell while w orking

in a freezer. He hurt his back, hip, and groin. Currently,

Claimant experiences throbbing pain every day and

sometimes cannot get out of bed for morning physical therapy

appointments. He also has had muscle spasms since the

August 1997 work accident. Before the August 1997 work

accident, Claimant was doing well.

loa

Appendix C

Claimant testified that Dr. Rudin has advised Claimant

not to work. Claimant has looked for work anyway, because

he needs the income. Claimant provided the Board with a

188-page document entitled “Look for Work Efforts.”

(Claimant’s Exhibit No. 6.) It included his resume, copies

of completed applications, and copies of newspaper

advertisements for job openings that he has answered. In his

job search, Claimant has focused mainly on management

jobs. Claimant’s work experience includes positions as a

restaurant manager for three and one-half years and as a

supervisor for a cleaning service for six years. He has a high

school diploma.

Claimant stutters. He received treatment for his stutter

throughout his school years but it did not help. Claimant

does not have a driver’s license.

Jerry L. Case, a board certified orthopedic surgeon,

testified by deposition on behalf of Best Temps. Dr. Case

examined Claimant on December 16, 1997, and March 24,

1998, and reviewed his medical records. The August 1997

work accident caused a minor hip fracture that had healed

by the December 1997 examination. From the medical

records, Dr. Case concluded that Claimant was still having

symptoms from his prior back injury at the time of the August

1997 slip and fall. Prior to the August 1997 work accident,

Claimant was on ongoing light duty work restrictions.

After the August 1997 fall, Claimant reported increased

symptoms but there was no disruption of the spine fusion.

After the December 1997 examination, Dr. Case

recommended sedentary to light duty restrictions. However,

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Appendix C

at the March 1998 examination, Claimant reported an

increase in symptoms and, as a result, Dr. Case increased

the work restrictions to sedentary duty. Claimant’s

examination and his interim history did not support an

increase in complaints. Consequently, Dr. Case questioned

Claimant’s credibility.

Barbara Stevenson, a vocational rehabilitation specialist,

testified on behalf of Best Temps. Ms. Stevenson completed

a labor market survey to determine the availability of suitable

employment for Claimant. (Employer’s Exhibit No. 2.) At

the time of the 1997 work accident, Claimant earned $5.00

per hour, which was the prevailing minimum wage rate. Ms.

Stevenson identified nine sedentary entry-level positions and

one light duty position. At the time Ms. Stevenson completed

the survey, she was unaware of Claimant’s speech

impediment. Depending on the severity of the stutter, five

of the identified positions may fall outside of Claimant’s

qualifications. Ms. Stevenson testified that the Delaware

unemployment rate is below 5 percent and is at an all-time

low.

Bruce J. Rudin, M.D., a board certified orthopedic

surgeon, testified by deposition on behalf of Claimant. Dr.

Rudin first saw Claimant in April 1994 following his first

work accident and has treated Claimant since that time. In

May 1996, Dr. Rudin released Claimant to sedentary to light

duty work but in December 1996 Dr. Rudin considered

Claimant totally disabled because of increased complaints.

After the August 1997 work accident, Dr. Rudin diagnosed

a lumbar sprain, an exacerbation of his previous condition,

and a fracture in the hip. In January 1998, Dr. Rudin believed

18a

Appendix C

that Claimant was “not quite back to baseline.” Dr. Rudin

last saw Claimant in March 1998 and he provided him with

a total disability note indicating that Claimant should be able

to return to work in two months. Claimant most likely will

not be able to perform more than a sedentary position.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Total Disability

Best Temps has the burden of proving, by a

preponderance of the evidence, that Claimant is no longer

totally disabled. For the following reasons, the Board finds

that Best Temps has met that burden.

Best Temps must first show that Claimant’s August 1997

work injury no longer incapacitates him from work. At the

time of the accident, Claimant was on ongoing light duty

work restrictions. In December 1997, Dr. Case placed

Claimant on sedentary to light duty work restrictions and

then, in March 1998, Dr. Case increased his work restrictions

to sedentary duty based on an increase of subjective

complaints. In March 1998, despite finding that Claimant’s

condition had almost returned to his baseline, Dr. Rudin

believed that Claimant was totally disabled. He

recommended that Claimant refrain from working for two

more months and then return to Dr. Rudin for a re-evaluation.

Any update from Dr. Rudin since that time was not made

part of the record. At the hearing, Claimant limped but was

able to walk. Based on Dr. Rudin’s opinion that Claimant

was almost back to baseline and based on the Board’s

observations at the hearing, the Board accepts Dr. Case’s

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Appendix C

testimony that Claimant is at least capable of sedentary work.

Therefore, the Board finds that Claimant is medically capable

of returning to work.

Because Best Temps has shown that Claimant is no

longer totally incapacitated, the burden shifts to Claimant to

show that he is vocationally displaced, either because he is

prima facie a “displaced worker” or because he made a

reasonable job search that failed because of his work injury.

Torres v. Allen Family Foods, Del. Supr., 672 A.2d 26, 30

(1996). In this case, because Claimant had ongoing light duty

work restrictions prior to his work injury, Claimant’s job

search must fail because of the increase in work restrictions

attributable to his August 1997 work accident. If Claimant

makes such a showing, then the burden shifts back to Best

Temps to show the availability of work within Claimant’s

capabilities. Jd.

Claimant submitted copies of notes and applications

indicative of an extensive job search. The Board, though,

has some concerns regarding the sincerity of Claimant’s

efforts. For example, Claimant’s resume does not reflect his

over nine years of management experience. Instead, Claimant

focused on his experience as a laborer, despite his work

restrictions, which he identified on his resume. However,

based on the number of contacts he made to employers

looking for workers and the number of applications he

submitted, the Board finds that Claimant made a reasonable

job search that failed because of his work injury.

Because he made a reasonable job search, Best Temps

must show the availability of suitable employment. Ms.

20a

Appendix C

Stevenson identified nine sedentary positions and offered

testimony regarding the current availability of entry-level

positions and Delaware's low unemployment rate. Ms.

Stevenson asserted that five of the identified positions were

questionable, depending on the severity of Claimant’s speech

impediment. The Board agrees that Claimant may not be

capable of positions that consist primarily of telephone

communications with customers but finds that his speech

impediment would not disqualify him from work that requires

substantial communication with coworkers and/or limited

communication with the public. Regarding the labor market

survey, Claimant certainly is capable of performing the

security guard, surveillance operator, and management

trainee positions. After all, Claimant’s stutter did not prevent

him from working, at the management level, for over nine

years.

Therefore, based on the low unemployment rate

throughout Delaware and based on the labor market survey

and supporting testimony, the Board finds that Claimant is

not vocationally displaced. Because Claimant is not

medically totally disabled and is not vocationally displaced,

the Board finds that Claimant is not totally disabled.

Partial Disability

In cases involving petitions to terminate total disability,

the employer must show that the claimant is not partially

disabled where there is evidence that there is a continued

disability that could reasonably affect the claimant’s earning

capacity. Waddell v. Chrysler Corp., Del. Super., C.A. No.

82A-MY-4, Bifferato, J., slip op. at 5 (June 7, 1983). Based

21a

Appendix C

on Claimant’s subjective complaints, both Dr. Rudin and

Dr. Case found a continuing disability that increased

Claimant’s work restrictions beyond his preexisting light

duty status. Since the increase in work restrictions could

reasonably affect Claimant's earning capacity, Best Temps

must show that Claimant is not partially disabled.

Claimant earned the prevailing minimum wage rate, or

$5.00 per hour, at the time of the August 1997 work accident.

Therefore, as long as Claimant is capable of full time work

in some capacity and such work is available, then Claimant

has suffered no loss of earning capacity and is not entitled

to partial disability benefits. The Board has accepted Dr.

Case’s work restrictions and has found that Claimant is at

least capable of sedentary work. In addition, the Board has

found that entry-level sedentary employment is available.

Consequently, because such employment pays at least

minimum wage, Claimant has suffered no wage loss and is

not partially disabled.

STATEMENT OF THE DETERMINATION

For the foregoing reasons, the Board GRANTS Best

Temps’ Petition for Termination of Benefits as of the date

of filing.

22a

Appendix C

IT IS SO ORDERED THIS 25 DAY OF JUNE, 1998.

INDUSTRIAL ACCIDENT

BOARD

s/ Irving S. Levitt

Irving S. Levitt

s/ R. Howard Seward

R. Howard Seward