Hebb v. Swindell-Dressler, Inc., SWINDELL-DRESSLE

• Decision Date: 12 September 1978
• Docket Number: INC,SWINDELL-DRESSLE
• Citation: 394 A.2d 249
• Parties: Kenneth HEBB, Plaintiff Below, Employee, Appellant, v., Defendant Below, Employer, Appellee.
• Court: Delaware Superior Court

Page 249

394 A.2d 249

Kenneth HEBB, Plaintiff Below, Employee, Appellant, v. SWINDELL-DRESSLER, INC., Defendant Below, Employer, Appellee.

Superior Court of Delaware, New Castle County.

Submitted May 23, 1978.

Decided Sept. 12, 1978.

Harvey B. Rubenstein, Wilmington, for plaintiff below, employee, appellant.

Robert W. Ralston of Prickett, Ward, Burt & Sanders, Wilmington, for defendant below, employer, appellee.

O'HARA, Judge.

This matter is before the Court on appeal from a decision of the Industrial Accident Board ("Board"). The claimant, Kenneth Hebb, is a skilled iron worker with twenty-seven years of experience. He was injured in an industrial accident on August 4, 1968 while in the employ of Swindell-Dressler, Inc. ("employer"). Following the accident he received temporary total disability benefits for short periods over the next several years. In addition, the claimant also received compensation for a twenty percent permanent partial disability pursuant to an agreement with his employer for a weakened condition of his left arm.

In October, 1975, claimant succeeded in obtaining a position as an iron worker with Coatesville Contractors despite his arm problem. However, due to the disability he was unable to perform his job without assistance. Shortly after he was hired the claimant was laid off in an economy move by the company employing Coatesville Contractors on a construction project. However, the evidence indicates that, given his considerable work experience, the claimant would have been retained as an employee despite the layoff, had he not been burdened with the disability.

On June 14, 1977, claimant petitioned the Board for a reinstatement of total disability benefits as of October 10, 1975, the date of his dismissal. He also sought an increase in permanent partial disability. The Board denied both requests and the ensuing appeal was brought.

The function of this Court in reviewing a decision of the Board is to determine whether the decision is supported by substantial evidence. General Motors Corporation v. Freeman, Del.Supr., 164 A.2d 686 (1960).

With respect to the claimant's request for an increase in permanent partial disability, the medical evidence is conclusive. The testimony presented to the Board, including that of the claimant's own physician, indicates that there has been no deterioration in his condition. Therefore, the claimant is not entitled to an increase in benefits and the Board's holding on the issue of permanent disability must be upheld.

On the issue of the claimant's request for temporary total disability, the claimant argues that he is a displaced worker and as such the burden of proof before the Board was on his employer to show the availability of regular employment within the claimant's capabilities. The employer, on the other hand, contends that under the holding in Display Art Studios, Inc. v. Chester, C.A.No. 5232, 1975, Letter Opinion, Stiftel, P. J., May 20, 1976, the facts of this case do not warrant a finding that the claimant was a displaced worker. The employer also contends that since this is a situation wherein the employee is seeking to have his disability benefits reinstated rather than a suit by the employer to terminate benefits, the burden of proof was on the claimant to establish that there was no employment available to him, regardless of the application of the displaced worker doctrine. For that reason the employer maintains that the instant case is distinguishable from those wherein an employer sought to terminate a displaced employee's benefits. Cf. Franklin Fabricators v. Irwin, Del.Supr., 306 A.2d 734 (1973); Ham v. Chrysler Corporation, Del.Supr., 231 A.2d 258 (1967); M. A. Hartnett, Inc. v. Coleman, Del.Supr., 226 A.2d 910 (1967). In such cases the burden of proof is clearly upon the employer.

An examination of the record shows that neither party presented its position to the Board in terms of the displaced worker doctrine. Nor does it appear that the Board's decision approached the matter from that standpoint. In its decision the Board did make the following finding:

"Iron working is such a laborious employment, we are of the opinion that anyone who can do even "light iron working" could perform regular employment in the nonunion working labor force. We do not believe the claimant has been denied employment, other than that as an iron worker, because of his industrial accident."

Although this language would indicate that the Board did not consider the claimant to be displaced, the Board never expressly reached that conclusion. In previous instances where the Board and the parties...