Bender v. Deflon Anderson Corp.

• Decision Date: 06 November 1972
• Docket Number: No. 5290,1971,5290
• Citation: 298 A.2d 346
• Court: Delaware Superior Court
• Parties: Michael J. BENDER, Claimant-Appellant, v. DEFLON ANDERSON CORPORATION, Employer, and Aetna Casualty & Surety Co., Insurer, Appellees. Civ. A

Page 346

298 A.2d 346

Michael J. BENDER, Claimant-Appellant, v. DEFLON ANDERSON CORPORATION, Employer, and Aetna Casualty &

Surety Co., Insurer, Appellees.

Civ. A No. 5290, 1971.

Superior Court of Delaware, New Castle County.

Nov. 6, 1972.

John M. Bader, Bader, Dorsey & Kreshtool, Wilmington, for claimant-appellant.

Max S. Bell, Jr., Richards, Layton & Finger, Wilmington, for appellees.

OPINION

WALSH, Judge.

This appeal from the Industrial Accident Board (hereinafter 'the Board') raises the issue of the Board's authority to require an injured employee, receiving total disability benefits, to submit to vocational rehabilitation as a condition of continuing benefits.

The facts are not in serious dispute. The claimant, Michael J. Bender, (hereinafter 'the claimant') sustained a serious leg injury on January 18, 1967 when he fell from a scaffold while working as a carpenter for Deflon Anderson Corporation (hereinafter 'the employer'). On February 13, 1967 claimant and employer entered into a compensation agreement, which was later approved by the Board, providing total disability benefits pursuant to 19 Del.C. § 2324. On February 11, 1970, the employer filed a petition with the Board seeking to terminate compensation benefits because of claimant's failure to pursue a rehabilitation program. At a legal conference before the Board on May 6, 1970, at which claimant was not present, claimant's then counsel agreed to encourage claimant to engage in rehabilitation. Apparently no effort toward rehabilitation was forthcoming on the part of the claimant and the matter was again before the Board at employer's request on September 13, 1971. At this hearing claimant, who was not represented by counsel, argued that any vocational rehabilitation efforts would be futile and despite the medical recommendation that it should be explored, the claimant contended that the Board should not require the effort. However, at the conclusion of this hearing, the claimant agreed to 'accept rehabilitation' and make 'a genuine effort in that direction, but it will not pan out'. Based on the representation of the claimant the Board entered its findings and order on October 6, 1971, requiring claimant to 'adhere' to its order dated May 13, 1970 and directing claimant 'to report to vocational rehabilatation (sic) for evaluation and treatment in order to have compensation reinstated.' Apparently, claimant later changed his mind since he filed an appeal to this Court on October 19, 1971.

Claimant argues that the Board does not have authority to make an award conditional upon submission to vocational rehabilitation and, even if such authority existed, The Board failed to determine as a premise to the exercise of such authority that the rehabilitation services were available and would probably be effective in claimant's situation. Employer counters that the Board acted properly in attempting to ameliorate claimant's disability by requiring him to explore the avenue of vocational rehabilitation and claimant's deliberate refusal to permit evaluation for that purpose justified the Board's action in suspending his benefits.

The right of an employer to require an injured employee to avail himself of reasonable medical treatment as a means of improving or restoring his injury is statutorily...