Governor Bacon Health Center v. Noll

• Decision Date: 09 January 1974
• Parties: GOVERNOR BACON HEALTH CENTER v. Helen M. NOLL.
• Court: Delaware Superior Court

Page 601

315 A.2d 601

GOVERNOR BACON HEALTH CENTER v. Helen M. NOLL.

Superior Court of Delaware, New Castle County.

Jan. 9, 1974.

Howard M. Berg, of Berg, Komissaroff & Sawyer, Wilmington, for employer-appellant.

Oliver V. Suddard, Wilmington, for employee-appellee.

OPINION

CHRISTIE, Judge.

Governor Bacon Health Center, the employer, brings this case before the Court on appeal from a decision of the Industrial Accident Board which denied the employer's petition to terminate the total disability benefits currently being paid to the claimant, Helen Noll.

The claimant, a registered nurse, became totally disabled as a result of a personal injury which occurred on June 20, 1968, when she attempted to lift a patient into a wheelchair. An agreement for the payment of total disability compensation commencing July 18, 1968, was subsequently entered into by the claimant and the insurance carrier of Governor Bacon Health Center. A separate agreement was also entered into whereby the claimant would receive compensation for a period of one hundred twenty weeks commencing November 18, 1970, for a forty percent permanent partial disability to her back. ¹

On February 22, 1971, the employer filed a petition to terminate the claimant's total disability benefits. The Industrial Accident Board denied the petition on the ground that the employer had failed to meet its burden of showing the availability of employment to the claimant. On appeal, this Court subsequently affirmed the decision of the Board. See Governor Bacon Health Center v. Noll, Del.Super., Civil Action No. 5280, 1971, an unreported opinion dated November 13, 1972.

On August 15, 1972, the employer filed a second petition with the Board to terminate the claimant's total disability benefits. Following a hearing which was held on March 21, 1973, the Board denied the employer's petition on the ground that it had once again failed to meet its burden of showing that there was employment available to the claimant. It is this decision of the Board which this Court must now consider on appeal.

Attacking the decision of the Board, the employer contends that it was error for the Board to place the burden of proof on the employer without first ruling that the claimant was a displaced worker.

Initially, it should be noted that despite its contention that the total disability of the claimant has terminated, the employer has not alleged any change in the physical condition of the claimant. Although in the case of a petition to terminate total disability benefits an employer generally has the burden of establishing at the outset that the claimant is not completely incapacitated for work, in this case the parties have agreed that the forty percent permanent partial disability to the claimant's back is the extent or her physical disability.

Once it has been established, as it has in this case, that the claimant is not totally disabled physically, the question may arise whether or not the claimant is nevertheless totally disabled economically. It is established in Delaware that a worker 'may be totally disabled economically, and within the meaning of the Workmen's Compensation Law, although only partially disabled physically.' Ham v. Chrysler Corporation, Del.Supr., 231 A.2d 258, 261 (1967). If a claimant is unable to secure employment because of his condition, 'medical evidence that he could perform such work, if he could get it, will not detract from his status of total disability.' M. A. Hartnett, Inc. v. Coleman, Del.Supr., 226 A.2d 910, 913 (1967).

When a determination must be made as to whether or not a claimant is totally disabled economically, the 'odd-lot' doctrine, or the 'displaced worker' concept, is generally utilized.

A 'displaced worker' is one who falls within the 'odd-lot' category. , the term relates 'to a worker who, while not completely incapacitated for work, is so handicapped by a compensable injury that he will no longer be employed regularly in any well known branch of the competitive labor market and will require a specially-created job if he is to be steadily employed.' Ham, supra, 231 A.2d at p. 261.

The burden-of-proof rule in cases where the employer seeks to terminate total disability benefits is generally stated in the following terms: a displaced worker 'must be deemed totally disabled, within the meaning of the Workmen's Compensation Law, unless the employer is able to show the availability of regular employment within the claimant's capabilities.' Ham, supra, 231 A.2d at p. 262.

As indicated earlier, the Board denied the employer's petition on the ground that the employer had failed to meet its burden of showing the availability of employment to the claimant. The Board stated:

'(T)he cases are clear that when there is a petition to terminate the compensation of a displaced worker or of one totally disabled, 'the employer has the burden of proving the availability of regular employment within the employee's capabilities and that total disability, once established, is deemed to continue until such availability is proved.' * * * If the displaced worker concept and the totally disabled worker concept are distinctions without a difference, then so be it.'

It is apparent that the Board would place the Ham burden of proof on the employer in every case in which the employer seeks to terminate total disability benefits. As recently clarified by the Supreme Court, however, the burden-of-proof rule of the Ham case is not intended to apply in every case in which the employer seeks to terminate total disability benefits but rather only in 'displaced worker' cases. ² Franklin Fabricators v. Irwin, Del.Supr., 306 A.2d 734 (1973).

In placing the burden of proof on the employer, the Board, relying upon the Superior Court's decision in Duff v. Chrysler Corporation, Del.Super., 301 A.2d 309 (1972), assumed that a 'totally disabled worker' is also a 'displaced worker.' As subsequently announced by the Supreme Court, however, in its reversal of the decision in the Duff case, Supra, it is erroneous to equate the concepts of the totally disabled worker and the displaced worker. Chrysler Corporation v. Duff, Del.Supr., 314 A.2d 915 (1973).

The burden-of-proof rule, as amplified by the Court in the Franklin Fabricators case, Supra, is 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 . . . the burden is on the employer, seeking to terminate total disability compensation, to show the availability to the employee of regualr employment within the employee's capabilities. * * * 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 'ood-lot' category, 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...