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Case History Document



Jarman v. Willow Grove Meats
Entered By: Marc C Gabriel/LymeNetDate Created: 3-39-94
Document Type: Decision
Title: Case Decision: Jarman v. Willow Grove Meats
FRED JARMAN, Employee-Below/Appellant, v. WILLOW GROVE MEATS, Employer-Below/Appellee.

JARMAN v. WILLOW GROVE MEATS

C.A. No. 93A-07-001

SUPERIOR COURT OF DELAWARE, KENT


January 5, 1994, Submitted
March 30, 1994, Decided

PRIOR HISTORY: [*1]

ON APPEAL FROM A DECISION OF THE INDUSTRIAL ACCIDENT BOARD

DISPOSITION: AFFIRMED

COUNSEL: Stephen A. Hampton of Grady & Hampton, P.A., 6 North
Bradford Street, Dover, Delaware 19901. Attorney for Appellant.

Anthony M. Frabizzio of Heckler & Cattie, P.O. Box 128, Wilmington,
Delaware 19899. Attorney for Appellee.

JUDGES: STEELE

OPINIONBY: MYRON T. STEELE

OPINION: STEELE, R.J.

MEMORANDUM OPINION

I. PROCEDURAL POSTURE OF THE CASE

Fred Jarman ("Appellant") appeals the March 10, 1993 decision of
the Industrial Accident Board ("Board") which granted Willow Grove
Meats' ("Employer") Petition to Review Compensation and terminated
Appellant's total disability status. The Board concluded the
Appellant no longer qualified as a prima facie displaced worker;
rather, his present condition involved only a temporary, partial
disability. Therefore, pursuant to 19 Del. C. @ 2347, n1 the Board
reduced the amount of Appellant's worker's compensation.

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n1 19 Del. C. @ 2347 states on the application of any party in
interest on the ground that the incapacity of the injured employee
has subsequently terminated, increased, diminished or recurred . . .
the Board may at any time, but not oftener than once in 6 months,
review any agreement or award. On such review, the Board may make
an award ending, diminishing, increasing or renewing the compensation
previously agreed upon or awarded . . .

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[*2]

II. STATEMENT OF FACTS

In November of 1988, Appellant sustained a compensable occupation
disease (Lyme Disease) while employed by Willow Grove Meats, Inc.
The Appellant entered into a voluntary compensation agreement with
his Employer and received total disability benefits from November
7, 1988 to December 5, 1988 and from January 29, 1989 until the
Employer filed a Petition to Review Compensation on November 26,
1991. The Petition alleged the Appellant had the ability to return
to work and had failed or refused to procure gainful employment.

On March 10, 1993, the Board conducted a Hearing to determine the
status of Appellant's disability. The Employer produced many
witnesses and extensive evidence to support its position the
Appellant had the ability to return to work. In response, the
Appellant, his mother, and his wife testified as to the Appellant's
disability.

Dr. Thomas Fekete, a specialist in infectious diseases at Temple
University Health Sciences Center, testified at two depositions on
behalf of the Employer in this case. n2 Dr. Fekete testified he
examined the Appellant and determined he contracted Lyme Disease
(DF1-16). He prescribed a course of antibiotic treatment [*3]
and then reexamined the Appellant (DF1-14,17). Dr. Fekete concluded
although the Appellant still had some incapacity related to the Lyme
Disease, many of his symptoms were caused by other, unrelated
factors such as the Appellant's 1989 back injury, diabetes, carpal
tunnel syndrome, history of depression, and the Appellant's obesity
(DF1-21,27,93,94). Dr. Fekete further confirmed based upon his
objective findings and examinations, the Appellant had the ability
to perform sedentary work (DF1-29-30)(DF2-2).

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n2 Dr. Fekete testified at two depositions concerning the
Appellant's treatment for Lyme Disease. The transcripts from these
proceedings were presented as evidence, and made part of the Board's
record during the IAB Hearing. DF1-# refers to the pages of the
transcript of Dr. Fekete's first deposition taken on November 10,
1992. DF2-# refers to the pages of the transcript of Dr. Fekete's
second deposition taken on March 4, 1993.

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Although Dr. Fekete admitted his initial report indicated the
Appellant did not have the [*4] ability to work, he clarified his
report and stated the Appellant could not work at his former,
physically intense occupation (DF1-66-67). Dr. Fekete reviewed the
jobs identified in the labor market survey submitted by the
vocational rehabilitation specialist and identified approximately
seventeen sedentary jobs he believed the Appellant had the ability
to perform (DF1-98-102).

Dr. David E. Raskin, a psychiatrist, testified at the Board's
Hearing on behalf of the Employer and stated he examined the
Appellant on January 7, 1993 (R-9). n3 Dr. Raskin's examination
determined the Appellant suffered from a depressive disorder (R-12).
Dr. Raskin conceded due to the Appellant's irritability he should
avoid work in any job where he had direct contact with people (R-16).
However, Dr. Raskin also stated the Appellant's psychological status
did not totally disable him from work and identified seven jobs in a
labor market survey the Appellant could perform despite his
psychological disorder (R-14-18).

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n3 References to the transcript of the Board's March 10, 1993
trial are cited as R-#.

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[*5]

The Board also considered the testimony of Mr. George Rummell, a
vocational rehabilitation specialist from Crawford & Company. Mr.
Rummell testified he met with the Appellant to assess his employment
skills (R-32). He reviewed the Appellant's educational background,
previous work experience, his reading, mathematical, and language
skills, his medical condition, and the medical restrictions of Dr.
Bishoff, the Appellant's initial treating physician (R-33-35).
Mr. Rummell also determined the Appellant had his GED, had an average
intelligence, average reading and math skills, served in the Coast
Guard, and worked in various labor intensive jobs (R-33-35).

Mr. Rummell determined the Appellant could perform sedentary
employment and identified approximately seventeen jobs suitable for
the Appellant (R-36-39,45,46). He personally viewed these job sites
to confirm they fell within the Appellant's physical restrictions and
work capabilities (R-47). Mr. Rummell also contacted the Appellant's
treating physician, Dr. Bishoff, who approved a number of the
positions as within the Appellant's work capabilities (R-40).

Mr. Rummell testified he sent the Appellant by certified mall
notification of [*6] these jobs along with Dr. Bishoff's approval
(R-38,39,40). He also offered to assist the Appellant in preparing a
resume and keeping a job log in order to enhance his employment
efforts (R-41,42). The Appellant failed to apply for any of the jobs
listed in Mr. Rummel's survey. The Appellant also refused Mr.
Rummel's help in preparing a resume or maintaining a job log
(R-39,41,42).

Dr. Joseph B. Keys, a psychologist from the Delaware Disability
Determination Service, testified at a deposition on behalf of the
Employer. n4 He stated he evaluated the Appellant and concluded
although his reading and mathematical skills appeared somewhat
limited, the Appellant could perform a number of jobs which only
require unskilled or semi-skilled labor (DK-27,36). Dr. Keyes also
testified the Appellant has some emotional problems which might cause
him difficulties in occupational relationships. However, Dr. Keyes
believed the Appellant had the ability to return to the work force
and recommended psychological treatment for his depression (DK-15,16).

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n4 Dr. Keyes testified at a deposition on February 10, 1993.
The transcript from this deposition was presented as evidence, and
made part of the Board's record during the IAB Hearing. DK-# refers
to the pages of this transcript.

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[*7]

Ms. Martha Scherer, a physical therapist from the Delaware
Curative Workshop, testified at a deposition she met with the
Appellant twice and performed a Cybex evaluation (DS-13,15). n5
Ms. Scherer stated although the Appellant has a number of physical
difficulties, he does not have a total disability and has the
capacity to perform some type of job (DS-57,59).

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n5 Martha Scherer testified at a deposition on February 4, 1993.
The transcript from this deposition was presented as evidence, and
made part of the Board's record during the IAB Hearing. DS-# refers
to the pages of this transcript.

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The Employer also presented testimony of Mr. Christopher Dush, a
licensed private investigator hired by the Employer to conduct
surveillance of the Appellant. Mr. Dush testified he began
surveillance of the Defendant on June 12, 1992 (R-110). He also
presented videotapes taken June 13, 1992 and June 18, 1992 which
depicted the Appellant adjusting a swing, carrying a ladder, working
on the roof of a house, and performing general [*8] construction
for Busy Bee Construction Company (R-113-115,132).

After the Employer presented its witnesses, the Appellant, his
mother, and his sister testified on his behalf. The Appellant
claimed since contracting Lyme Disease he constantly feels tired and
has cramping throughout his body (R-295). The Appellant also stated
the Lyme Disease has caused him to experience mood swings and become
violent for no apparent reason (R-299). The Appellant contends these
physical ailments have rendered him totally incapable from performing
any job.

Appellant admitted he received notice from Mr. Rummell about
potential employment opportunities (R-331). However, Appellant
asserted his former attorney told him not to apply for these jobs.
Appellant further testified even if his attorney recommended he apply
for the positions identified by Mr. Rummell, he did not believe he
had the capability to perform any of these jobs (R-332).

The Appellant also addressed the videotape which showed him
performing various activities and construction work. Appellant
admitted he occasionally helped his father-in-law with construction
work when "stuff needed to be done" (R-300,301). However, Appellant
contends after [*9] performing the construction work, his arms and
hands swelled, and he could not participate in any activities the next
day (R-302).

Appellant testified about his educational background and prior work
experience. The Employer questioned the Appellant about his extensive
absenteeism during his high school years and his failure to complete
his high school education (R-319). The Employer, over objection by
Appellant's attorney, also questioned the Appellant about a Family
Court hearing concerning unpaid child support in which the Appellant
became belligerent with a bailiff and his ex-wife (R-324,325).
This hearing occurred before the Appellant contracted Lyme Disease,
and apparently the Employer's questions attempted to show the
Appellant had a short temper and irritability prior to contracting
Lyme Disease.

Mrs. Millie Jarman, the Appellant's mother, testified on behalf of
her son. She stated since the Appellant contracted Lyme Disease he
has very little endurance, cramping all over his body, and frequent
mood swings (R-246, 247, 251). Mrs. Millie Jarman also testified
the Appellant, before contracting this disease, worked two or three
jobs and as much as 70 hours per week (R-243, 244).
[*10]

Mrs. Millie Jarman also admitted she knew the Appellant had done a
little carpentry work around the house (R-259). However, she claimed
every time the Appellant performed carpentry work, he remained bed
ridden for many days (R-256). Finally, Mrs. Millie Jarman admitted
since her son contracted Lyme Disease, she only occasionally visits
with him (R-266).

Mrs. Lori Jarman, the Appellant's wife, also testified on behalf
of the Appellant. She stated since the Appellant contracted Lyme
Disease he has erratic sleeping patterns and experiences cramping
and muscles spasms (R-278, 279). She testified on a typical day, the
Appellant wakes up at 10:00 a.m., fixes himself breakfast, watches
television, plays Nintendo, takes an afternoon nap, and then if he is
watching his son, will take him to school (R-285).

Mrs. Lori Jarman also stated she knew the placement agency had
offered the Appellant two jobs, but the Appellant, on his lawyer's
advice, did not apply for those jobs (R-276). She also testified the
Appellant performed some construction work on their house and helped
her father work on another house (R-282).

At the conclusion of the Hearing, the Board issued a written
opinion in which it [*11] evaluated all the testimony and
determined the Appellant was not prima facie displaced. The Board
stated the Appellant was young and had transferrable job skills.
The Board also recognized because the Appellant could no longer
perform heavy work, he had suffered a loss of earning capacity.
Therefore, the Board reduced the amount of Appellant's worker's
compensation from total disability to a temporary, partial disability.

III. STANDARD OF REVIEW

On appeal from a decision of the Industrial Accident Board, the
Court must ascertain whether the Board's conclusions are supported by
substantial evidence and free from legal error. A. Mazzetti & Sons,
Inc. v. Ruffin, Del. Supr., 437 A.2d 1120, 1122 (1981). Substantial
evidence is relevant evidence a reasonable mind might accept as
adequate to support a conclusion. Olney v. Cooch, Del. Supr., 425
A.2d 610, 614 (1981).

It is within the discretion of the Board, not the Court, to weigh
the credibility of witnesses and to resolve conflicting testimony.
Breeding v. Contractors-One-Inc., Del. Supr., 549 A.2d 1102, 1104
(1988). Consequently, if there [*12] is substantial evidence and
no legal error, the Court will affirm the Board's decision. General
Motors Corp. v. Freeman, Del. Supr., 53 Del. 74, 164 A.2d 686, 689
(1960).

To modify a voluntary compensation agreement based on total
disability, the Employer must offer proof of a diminution of the
disability. Downes v. State, Del. Super., C.A. No. 92A-03-006,
Graves, J. (Dec. 18, 1992) Letter Op. at 3. The Delaware Supreme
Court has provided the analytical frame work for these determinations:

In the ordinary total disability termination case the employer should
initially be required to show that the employee is not completely
incapacitated for work, and in demonstrating medical employability,
will have, as a practical matter, the opportunity to show by the
factors of physical impairment, mental capacity, training, age, etc.,
that the employee is not in the 'odd-lot' category. In response, the
employee may present his evidence that he is prima facie in the
'odd-lot' category, and if appropriate, his evidence of reasonable
efforts to secure employment which have been unsuccessful because of
the injury. In rebuttal, the employer [*13] may present evidence
of the availability of regular employment within the employee's
capabilities as well as any other rebuttal evidence. Surrebuttal may
be permitted to show non-availability of regular employment.

Howell v. Supermarkets General Corporation, Del. Supr., 340 A.2d 833,
835 (1975) (citing Chrysler Corporation v. Duff, Del. Supr., 314 A.2d
915, 918, n. 1 (1974)).

IV. DISCUSSION

A. Substantial Evidence Analysis

Appellant claims the Board's decision modifying his total
disability status is not supported by substantial evidence. First,
the Appellant argues the testimony of Dr. Fekete and Dr. Raskin did
not constitute substantial evidence the Appellant did not have a
total, medical disability. Second, the Appellant argues the Employer
did not present substantial evidence of the availability of work in
the local economy suitable for the Appellant. Therefore, there was not
substantial evidence to support the Board's decision the Appellant did
not fall within the "odd-lot" or "total disability" category.

In determining whether an Appellant falls within the "odd lot"
category the Board must consider [*14] not only medical and
physical factors, but also such factors such as employee's age,
education, background, experience, and emotional stability, the
nature of work performable under physical impairment and the
availability of such work. Ham v. Chrysler Corporation, Del.
Supr., 231 A.2d 258, 261 (1967).

1. Medical Evidence

The Court finds the Appellant's argument to be without merit.
Substantial evidence supports the Board's decision the Appellant had
the medical and physical ability to return to work in some capacity.

Dr. Fekete, a specialist in infectious diseases at Temple
University Health Sciences Center, testified at two depositions on
behalf of the Employer. He examined and treated the Defendant. Dr.
Fekete also testified he has treated numerous patients with Lyme
Disease. Based on his examination, training, and experience, Dr.
Fekete believed the Appellant could return to work in some capacity.

Additionally, Dr. Raskin, a psychiatrist, testified he examined
the Appellant and determined he suffered from a depressive disorder.
Although Dr. Raskin stated the Appellant should avoid a job where he
had direct contact with people, based on his [*15] examination of
the Appellant, his training and experience, he agreed with Dr. Fekete
the Appellant had the ability to work in some capacity.

Aside from the medical testimony of these two expert witnesses,
the Court finds the Board considered the testimony of other experts
who examined the Appellant and determined he had the ability to
return to work. Ms. Martha Scherer, a physical therapist, and Dr.
Joseph Keyes, a psychologist, both presented evidence concerning
the Appellant's ability to return to work. These experts agreed
the Appellant has restrictions on his ability to work because of
his weakened condition, irritability and mood swings. However, both
agree the Appellant can work in a sedentary, unskilled or semi-
skilled capacity. Finally, the Board considered evidence from Dr.
Bishoff, the Appellant's treating physician, which indicated he could
return to work.

The Appellant did not present any expert medical testimony to
refute the Employer's evidence. The Appellant relied on cross
examination of the Employer's expert witnesses and the testimony of
the Appellant to show the Appellant had a total disability. It
becomes apparent through this testimony and cross examination the
[*16] only witness who believes the Appellant cannot work is the
Appellant himself. The Court recognizes these expert medical
witnesses may have disagreed as to what restrictions apply to
Appellant's work ability. However, it is within the discretion of
the Board's to accept the testimony of one medical expert over
another. DiSabatino Brothers, Inc. v. Wortman, Del. Supr., 453 A.2d
102, 1060 (1982). Therefore, the Court finds substantial medical
evidence exists to support the Board's decision the Appellant is not
totally disabled from work.

In addition to the expert medical testimony, the Court finds the
Board considered evidence the Appellant did not fall within the "odd
lot" or "total disability" category as required by Ham. Mr. Rummell
testified although the Appellant had dropped out of high school in
the tenth grade, he later received his GED. The evidence indicates
the Appellant has an average IQ as well as average reading and
mathematical skills.

The evidence also indicates the Appellant has a diverse employment
background. He served in the United States Coast Guard and since
then has worked in various labor intensive jobs. Mr. Rummell and
Dr. [*17] Keyes both testified based on Appellant's relatively
young age of 24, education, and average intelligence, he has the
ability to return to work in some capacity.

Based on this evidence, the Board concluded the Appellant did not
fall within the "odd lot" or "total disability" category and was
medically able to return to work. The Court finds the testimony of
these witnesses constitutes substantial evidence to support the
Board's decision the Appellant is not only medically able to return
to work, but his age, education, experience, and emotional stability
confirm the Appellant no longer qualifies as a prima facie displaced
worker.

2. Availability of Suitable Employment

The Court also finds without merit the Appellant's claim the
Employer did not present substantial evidence of the availability of
work in the local economy. Mr. Rummell testified he conducted an
extensive labor market survey to determine whether or not jobs
existed in the local economy which Appellant could perform and
obtain. This survey identified at least 13 jobs available to the
Appellant on either a full-time or part-time basis. Mr. Rummell
conferred with each of the prospective employers to determine
whether [*18] they would accept an application from someone with
the background and medical capabilities of the Appellant.
Additionally, Mr. Rummell testified he personally viewed these jobs
to confirm they fell within the Appellant's physical restrictions and
work capabilities. Finally, Mr. Rummell procured authorization from
the Appellant's treating physician for a number of these jobs.
The Court finds this evidence provides a sufficient basis to support
the Board's conclusion regular employment was available within the
Appellant's restrictions. See Aaron v. Liddicoat Construction Co.,
C.A. No. 92A-04-005, Cooch, J. (Nov. 6, 1992) Mem. Op. at 11.

Under Delaware law, once an employer has established a claimant
does not qualify as a prima facie displaced worker, and evidences the
availability of regular employment suitable for the claimant, the
burden shifts to the claimant to present his evidence that he is
prima facie in the 'odd-lot' category, and if appropriate, his
evidence of reasonable efforts to secure employment which have been
unsuccessful because of the injury. Franklin Fabricators v. Irwin,
Del. Supr., 306 A.2d 734, 737 (1973).

In the case [*19] at bar, the Appellant presented no testimony
his injury had prevented him from procuring employment. In fact,
the Appellant admitted he had not looked for any work since leaving
Willow Grove Meats. Additionally, Appellant admitted he did not
apply for the jobs submitted to him by Mr. Rummell and approved by
his treating physician. Appellant also refused to accept help from
Mr. Rummell in preparing a resume or keeping a job log.

Based on Mr. Rummel's testimony and the Appellant's complete lack
of any reasonable effort to procure employment, the Board concluded
the Appellant had the ability to perform sedentary work in the
regular labor force and suitable employment was available to the
Appellant. The Court finds this determination is supported by
substantial evidence.

B. Legal Error Analysis

Appellant claims the Board committed legal error when it modified
his total disability status. First, the Appellant argues the Board
erred when it relied on the testimony of Christopher Dush to assess
the Appellant's credibility. Second, Appellant claims the Board erred
when it refused to consider relevant evidence from the Social
Security Administration. Third, Appellant contends the Board [*20]
committed legal error when it considered prejudicial and irrelevant
evidence in reaching its decision.

1. Judgment of Witness Credibility

The Appellant contends the Board's committed legal error when it
relied on the testimony and videotapes of Christopher Dush to assess
the Appellant's credibility. The Court finds this argument without
merit.

It is clearly within the discretion of the Board, not the Court,
to weigh the credibility of witnesses and resolve conflicting
testimony. Johnson v. Chrysler Corp., Del. Supr., 59 Del. 48, 213
A.2d 64 (1965). In the case at bar, the Employer hired Mr. Dush as
a private investigator to videotape the Appellant performing
construction work and various other activities. The Board properly
admitted these videotapes into evidence. Mr. Dush testified at the
Board's Hearing, and the Appellant had the opportunity to cross
examine him. Additionally, the Appellant admitted he performed these
activities and knew Mr. Dush had videotaped him. Therefore, the
Court finds the Board did not commit legal error by relying on the
factual testimony of Mr. Dush in assessing the Appellant's
credibility.

2. The [*21] Board's Failure to Consider Relevant Evidence

The Appellant next argues the Board committed legal error when it
refused to consider evidence the Social Security Administration had
determined the Appellant totally disabled for purposes of its
administrative agency's benefits. The Court also finds this argument
without merit.

"The object of the rules of evidence is to admit evidence which is
reliable and relevant and to exclude that which is unreliable,
irrelevant, or prejudicial." Dorsey v. Chrysler Motors Corp., Del.
Super., C.A. No. 92A-09-021, Goldstein, J. (Apr. 19, 1993) ORDER at
9. Absent an abuse of discretion, the Court defers to the Board's
evidentiary decisions in most cases. Thomas v. West Dover Butcher
Shop, Del. Super., C.A. No. 88-MY-8, Babiarz, J. (March 14, 1989)
Mem Op. at 5.

In the case at bar, the Appellant claims evidence from the Social
Security Administration had relevance to the issue of total
disability before the Industrial Accident Board. The Court finds the
standard used by the Social Security Administration in determining
whether or not an individual has a total disability under 20 CFR @
404.1505(a) substantially differs from the standard utilized [*22]
by the Industrial Accident Board in 19 Del. C. @ 2347. Consequently,
since it was within the Board's discretion to exclude this evidence
as irrelevant and prejudicial, the Board did not commit legal error.

3. The Board's Consideration of Irrelevant and Prejudicial Evidence

The Appellant next contends the Board committed legal error when it
considered prejudicial and irrelevant evidence in reaching its
decision on the Appellant's disability status. This alleged
prejudicial evidence consists of testimony concerning the Appellant's
excessive absenteeism during high school and testimony concerning the
Appellant's behavior during a Family Court proceeding for unpaid
child support.

In response to Appellant's argument concerning the high school
records, the Court finds this claim without merit. The transcript of
the Board's March 10, 1993 Hearing indicates the Employer introduced
evidence of Appellant's high school record. However, it appears to
the Court the Appellant did not object to the admission of this
evidence. The Appellant now argues the Board should not have
admitted this evidence because of its irrelevant and prejudicial
nature.

The Courts of Delaware have held evidentiary [*23] issues not
raised at the trial level shall not be heard on appeal. See Mooney
v. Benson Management Co., Del. Super., 451 A.2d 839, 840 (1982) rev'd
on other grounds, 466 A.2d 1209 (1983). Therefore, the Court finds
because the Appellant did not object to this evidence during the
Board's Hearing, he cannot now raise this issue on appeal.

In response to Appellant's argument concerning the Family Court
hearing, the Court finds this claim also without merit. The record
indicates the Employer, over Appellant's objection, introduced
evidence of Appellant's belligerent behavior during a Family Court
proceeding for unpaid child support. Appellant contends this
evidence has an irrelevant and prejudicial nature and should have
been excluded by the Board.

The Appellant relies on the Delaware Superior Court case Dorsey v.
Chrysler Motors Corp, supra, as authority for its assertion the
Board abused its discretion by admitting this evidence. The Court
finds the facts in Dorsey distinguishable from the case at bar.
Dorsey involved an Industrial Accident Board hearing in which the
employer introduced testimony from two police [*24] officers
concerning Dorsey's illegal liquor operations. The facts in Dorsey
indicate the Board specifically referred to this evidence in its
opinion. The Superior Court held the consideration of this
evidence constituted an abuse of discretion by the Board. Id. at 7.

In the case at bar, the Board's opinion does not indicate it
considered the evidence of the Family Court proceeding in reaching
its decision the Appellant no longer had a total disability.
Additionally, the Court finds an admission of evidence concerning
belligerent behavior does not rise to the level of prejudice found
in Dorsey where the Board specifically considered police testimony of
the claimant's illegal acts.

The Court also recognizes due to the informal nature of the
Board's hearings, the Board has some latitude in applying the rules
of evidence. Thus, the Court will defer to the Board's evidentiary
decisions in most cases, absent an abuse of discretion. Thomas v.
West Dover Butcher Shop, supra, at 5.

It appears to the Court the Board did not rely on the Family Court
proceeding in reaching its decision. Substantial evidence exists
apart from the Family Court proceeding to support the Board's
conclusion [*25] in any event. Therefore, its admission into
evidence only constitutes harmless error if error at all.

V. CONCLUSION

After careful review of the transcript, record, and the Board's
opinion in this appeal, the Court concludes the Board's
determination the Appellant no longer qualifies as a prima facie
displaced worker is supported by substantial evidence.
Additionally, the Board's consideration of the evidence and evaluation
of the witnesses' credibility did not constitute an error of law.

For the reasons stated above, the decision of the Industrial
Accident Board is affirmed.

IT IS SO ORDERED.

Myron T. Steele

Resident Judge

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