Phillips v. Delhaize America, Inc., C.A. No. 06A-09-001 (Del. Super. 7/20/2007), C.A. No. 06A-09-001.

CourtSuperior Court of Delaware
Writing for the CourtE. Scott Bradley
PartiesRE: Melvin Phillips v. Delhaize America, Inc. t/a Food Lion
Docket NumberC.A. No. 06A-09-001.
Decision Date20 July 2007

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RE: Melvin Phillips
Delhaize America, Inc. t/a Food Lion
C.A. No. 06A-09-001.
Superior Court of Delaware, Sussex County.
Date Submitted: April 2, 2007.
July 20, 2007.

Eric M. Doroshow, Esquire, Nicole M. Evans, Esquire, Doroshow, Pasquale, Krawitz & Bhaya, Milford, DE.

William D. Rimmer, Esquire, Robert J. Deary, Esquire, Heckler & Frabizzio, Wilmington, DE.


Dear Counsel:

This is my decision on the appeal filed by Melvin Phillips ("Phillips") of the Industrial Accident Board's ("Board") decision terminating his total disability benefits. Phillips is a full-time night manager for Delhaize America, Inc., which does business as Food Lion ("Food Lion"). He injured his back while lifting boxes of juice containers on July 7, 2005. Phillips filed a Petition to Determine Compensation Due with the Board on September 30, 2005. A hearing officer held a hearing on Phillips' petition on April 7, 2006. The Board issued its written decision on April 21, 2006, finding Phillips' injury compensable and granting him total disability benefits.

Phillips' doctor, Dr. Mohammad Mehdi, released him to return to light-duty work on June 6, 2006. Phillips worked 11.73 hours in Food Lion's temporary alternate duty program from June 12, 2006 through June 17, 2006. Phillips was cleaning shelves, but stopped working because his back

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hurt from bending over to clean the shelves. Food Lion stopped paying total disability benefits to Phillips on June 17, 2006.

Phillips was scheduled for a medical examination with Food Lion's doctor on July 24, 2006. When he did not appear, Food Lion's counsel wrote to the Board on July 24, 2006, asking it to hold an immediate "Legal Hearing" so that Phillips could be sanctioned for not going to the medical examination. Dr. Peter Coveleski put Phillips on no-work status on July 27, 2006. Food Lion started to file a Petition for Termination of Benefits with the Board on July 21, 2006, but was unable to do so because it never perfected service of the petition on Phillips. Phillips' counsel sent a Huffman demand to Food Lion's counsel on July 28, 2006. She also told Food Lion's counsel that Phillips had not signed the Final Receipt because Dr. Coveleski had put him back on no-work status. Food Lion's counsel wrote to Phillips' counsel on August 1, 2006, telling her that Food Lion was entitled to a Final Receipt because Phillips had gone back to work. He also told Phillips' counsel that she should file a Petition for Additional Compensation Due if she felt that Phillips was entitled to additional benefits. Lastly, he told Phillips' counsel that he would take all the issues up with the Board at the Legal Hearing. Food Lion scheduled Phillips for another medical examination on August 7, 2006. When he did not appear, Food Lion's counsel called Phillips' counsel on August 8, 2006, and wrote a confirming letter the same day. Food Lion's counsel demanded that the Final Receipt be signed and repeated his position that Phillips would have to file a Petition for Additional Compensation Due if he thought he was entitled to additional benefits. The Legal Hearing was continued from August 9, 2006 to August 16, 2006. Phillips' counsel wrote the Board on August 15, 2006, taking the position that the Legal Hearing should be limited to any sanctions for Phillips' failure to attend the medical examinations. The Board held a Legal Hearing on August 16, 2006. Food Lion's counsel presented

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the Board with a Termination Order, arguing that Phillips consented to the termination of his total disability benefits by returning to work on June 12, 2006. Phillips' counsel argued that Food Lion should file a Petition to Terminate Benefits in accordance with 29 Del.C. § 2347 if it wanted to terminate Phillips' total disability payments. The Board signed Food Lion's Termination Order, reasoning that by returning to work Phillips consented to the termination of his total disability benefits. The Board also granted Food Lion's request to sanction Phillips for not going to the medical examinations. Phillips then filed an appeal with this Court of the Board's decision to terminate his total disability benefits.


The Supreme Court and this Court repeatedly have emphasized the limited appellate review of the factual findings of an administrative agency. The function of the Superior Court on appeal from a decision of the Industrial Accident Board is to determine whether the agency's decision is supported by substantial evidence and whether the agency made any errors of law.1 Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.2 The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings.3 It merely determines if the evidence is legally adequate...

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