M. A. Hartnett, Inc. v. Coleman

• Decision Date: 08 February 1967
• Citation: 226 A.2d 910
• Parties: M. A. HARTNETT, INC., Employer Below, Appellant, v. James COLEMAN, Claimant Below, Appellee.
• Court: Supreme Court of Delaware

Page 910

226 A.2d 910

M. A. HARTNETT, INC., Employer Below, Appellant, v. James COLEMAN, Claimant Below, Appellee.

Supreme Court of Delaware.

Feb. 8, 1967.

Upon appeal from Superior Court. Affirmed.

Richard I. G. Jones, of Prickett & Prickett, Wilmington, for employer below, appellant.

Wilfred J. Smith, Jr., Wilmington, for claimant below, appellee.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

HERRMANN, Justice:

We are called upon in this appeal to define the term 'total disability' as used in the Delaware Workmen's Compensation Law, 19 Del.C. § 2324. The specific question presented is whether there was substantial evidence to support the finding of the Industrial Accident Board that the claimant's total disability had terminated.

James Coleman, the claimant, was a laborer and had been such all of his adult life. He had never attended school and was illiterate; he was untrained for any other work. In 1958 while employed by M. A. Hartnett, Inc. (hereinafter 'Hartnett'), Coleman suffered back injuries compensable under the Delaware Workmen's Compensation Law. A compensation agreement was made, based upon temporary total disability. During the ensuing years, Coleman attempted to obtain employment on several occasions: He obtained work with a road construction firm, flagging traffic and sweeping dirt and dust from the new road; but because of back pain and inability to sit or stand long, he was unable to perform this work and was obliged to terminate the employment after about two weeks. He drove a truck from time to time but, because of his back, he was obliged to quit early on some days and was unable to work at all on others; for these reasons he was unable to hold that job. He also attended a job-retraining center and was assigned to the work of sorting and counting spoons; but he was dismissed on the first day because of pain resulting from continuous sitting. There is no showing of any other employment during the five year period following the injury.

In 1963, when Coleman was about 49 years of age, Hartnett petitioned the Industrial Accident Board to review the compensation agreement on the ground that Coleman's total disability had terminated. After a hearing, the Board found that Coleman 'was not totally disabled from any type of employment but that he was restricted as to the type of work he could do.' Coleman appealed and the Superior Court reversed the Board on the ground of insufficient evidence to support the Board's finding. Thereupon, Hartnett took this appeal.

The scope of review of factual findings of the Industrial Accident Board was stated by this Court in General Motors v. Freeman, 3 Storey 74, 164 A.2d 686 (1960) as follows:

'The position of the Superior Court and of this Court on appeal is to determine only whether or not there was substantial evidence to support the findings of the Board.'

Some evidence, or Any evidence, may be insufficient to support the factual findings of the Board. The evidence must be substantial; and it is the duty of the reviewing court to weigh and evaluate the evidence for sufficiency to support the findings. Nardo v. Nardo, Del., 209 A.2d 905 (1965). ¹

With this as the measure of our function on this appeal, we have reviewed the evidence which was before the Board. There were two witnesses: Coleman and a neurosurgeon.

Coleman testified that he would be willing to try, but was unable to say that he could fulfill, a 'flag job' suggested by Hartnett's attorney, where he 'could sit down and stand up from time to time'; that he could see no reason why he could not 'sit in a chair and flag the truck'; that he would try to 'run an elevator or something like that', but could not say that he was able to do so.

The physician testified that Coleman was totally 'incapacitated for any work of a laboring nature' including driving a heavy truck; that a job not involving lifting or standing or back bending 'ought not to be beyond the difficulty of this man.' Examples of jobs suggested by Hartnett's counsel for the doctor's consideration included driving a light car, operating an elevator, cleaning chickens, sorting fruit, and inspecting eggs. Although he confessed ignorance of the details of the requirements of such work, it was the doctor's opinion that Coleman could probably perform 'such light work' as long as he could avoid reaching, bending, lifting, twisting, straining or sitting or standing too long in one position. The doctor conceded that it would be difficult for a man of Coleman's background and qualifications to find any employment where he would not be called upon to do at least one of these things. He also conceded that he had no personal knowledge whether anyone would hire a man, of Coleman's qualifications, so handicapped.

The foregoing was the sum and substance of the evidence before the Board upon the basis of which it found that Coleman's total disability had terminated. The evidence is not substantial enough, in our opinion, to warrant the finding. Coleman's testimony amounted to little more than an expression of his willingness to try different types of work suggested by opposing counsel. For present purposes, his testimony may be disregarded. As to the doctor's testimony, it alone is insufficient to carry Hartnett's burden of proof. See C. F. Braun & Co. v. Mason, 3 Storey 279, 168 A.2d 105 (1961).

Generally speaking, the physician's testimony was too vague and uncertain to merit the classification of 'substantial evidence.' The general tone and nature of his testimony is...