The Power of Sua Sponte…IAB Raises Displaced Worker Doctrine and the Superior Court Remands for More
I have something big on the docket this week so this is what we would call a post on the fly. Better to blog with brevity that not blog at all, right?
The cases du jour were brought to my attention by Tracey Wilkerson of Coventry over dinner last week. Not only is Tracey my vocational rehab expert of choice, but she is also all over the case law . . . a woman after my own heart.
So here is what we have:
Ralph Burkovich v. Haines Fabrication and Machine, IAB Hr’g No. 1360672 (Oct. 2, 2013) and the appellate version, Haines Fabrication and Machine v. Burkovich, C.A. No. S13A-10-004 (Del. Super. Ct. June 20, 2014) (Graves, J.).
So what’s the big deal?
The Employer convened a Termination Hearing on the basis claimant could work in some capacity, and the doctors agreed on that score. Claimant argued that he was medically totally disabled. No one raised displaced worker. Not on the Pretrial, not on the Stipulation of Facts . . . not in the Opening or the Closing Statements. This doctrine did not make even a cameo appearance at this Hearing.
Of course what does the Board do but find the Claimant displaced sua sponte. I will leave it to you to review the evidence that compelled that conclusion. The Employer appeals. And as you will discover, the Superior Court remands this matter back to the IAB for further Hearing to allow both sides to develop the displaced worker theory . . . out of fairness. (To whom?)
Make of all this what you will. I find it worth commenting on, abbreviated though my comments might be. If you are the Employer, proceed at your peril and be reminded that our IAB has all sorts of magical powers under the guise of sua sponte. If you are the Claimant, the best I can offer is that, per our Superior Court, the defense striking the box on the Pretrial that says “displaced worker doctrine does not apply” does not count as raising the doctrine on the Claimant’s behalf.
Irreverently yours,
Cassandra Roberts
