Okay, y’all have heard me talk about “Chris Baum Cherishables”….. and for anyone who doesn’t know who Chris is (because, perhaps, you have been living under a rock) , he is the Chief Hearing Officer for our Industrial Accident Board. My post of 8/5/14 prompted Chris to reply on behalf of the Board and as is usually the case with anything that emits from Chris’ keyboard, his commentary is instructive. Here is what Chris had to say (posted with his permission);
On the question of displaced worker being considered sua sponte by the Board, I think it should be pointed out that the Board is put into something of an awkward position in these cases. The recent Burkovich decision references Peuchen, Inc. v. Heluck, 391 A.2d 220 (Del. Super. 1978). In Peuchen, the displaced worker doctrine was not raised or addressed by the parties either before or during the hearing. In the Board’s decision, however, the Board raised the doctrine sua sponte and found both that the claimant was displaced and that the employer had failed to show the availability of regular employment within the employee’s capabilities. The Superior Court remanded the case to the Board to allow the employer the opportunity to present evidence on the issue. Peuchen, 391 A.2d at 224.
However, when the parties have failed to adequately raise the displaced worker doctrine and the Board has not addressed it, the Superior Court has also remanded the case. See, e.g., Bailey v. Milford Memorial Hospital, Del. Super., C.A. No. 94A-03-001, Graves, J. (November 30, 1995)(case remanded for Board to make an express determination when claimant did not plead displaced worker and, over objection, Board permitted evidence on issue to be submitted but then did not address the doctrine in its decision); Hebb v. Swindell-Dressler Inc., 394 A.2d 249, 251 (Del. Super. 1978)(when neither the parties nor the Board addressed the issue, but there was evidence from which the Board could have found employee was displaced, case remanded for Board to make an express determination).
Thus, it seems that, if the issue of displaced worker is not properly raised by the parties, the case may be remanded to this Board whether the Board addresses it (as in Peuchen) or not (as in Bailey and Hebb). It truly is a situation where the Board cannot win.
I was tickled pink to have Chris today as our guest blogger. For those of you who don’t know what a “Chris Baum Cherishable” is.…..it is a mini-treatise full of excellent ingredients that both enlightens and inspires. It is something absolutely delicious if you are a committed comp practitioner. A lot like that chocolate cake pictured above.
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
For more information about LexisNexis products and solutions connect with us through our corporate site