SUPERIOR COURT OF THE STATE OF DELAWARE E. SCOTT BRADLEY 1 The Circle, Suite 2 JUDGE GEORGETOWN, DE 19947 January 26, 2016 H. Garrett Baker, Esquire Walt F. Schmittinger, Esquire Elissa A. Greenberg, Esquire Schmittinger and Rodriguez, P.A. Andrew J. Carmine, Esquire 414 South State Street Elzufon Austin Tarlov & Mondell, P.A. Dover, DE 19903 300 Delaware Ave., Suite 1700 Wilmington, DE 19802 RE: Roos Foods v. Magdalena Guardado C.A. No.: S15A-05-002-ESB

Dear Counsel: This is my decision on Roos Foods’ app eal of the Industrial Accident Board’s denial of its Petition for Termination of Benefits for Magdelena Guardado. Guardado worked for Roos Foods for approximately fi ve years. Guardado performed a variety of tasks for Roos Foods, but spent most of her time operating a machine that made cream. Guardado was involved in a comp ensable work-related accident on June 22, 2010. Guardado injured her left wrist when she slipped on the floor at work. Guardado was in and out of work until the summer of 2013 when she was placed on total disability. Dr. Richard P. DuShuttle surgically fused Guardado’s wrist on June 18, 2014. Dr. DuShuttle released Guardado to light-duty, one-handed work on August2 7, 2014. Notwithstanding that, Guardado has not been able to find a job. Guardado is 38-years-old. Guardado was born in El Salvador and came to the United States in 2004. Guardado earned the equivalent of a high school degree in El Salvador, but has no other skills or training a nd her work history consists of just the five years she spent at Roos Foods. Guar dado only speaks Spanish and is not able to work legally in the United States. Roos Foods filed a Petition for Termin ation of Benefits on November 7, 2014, arguing that Guardado was no longer totally di sabled and was physically able to return to work. The Board held a hearing on March 24, 2015. The Board denied Roos Foods’ Petition for Termination of Benefits on April 7, 2015, concluding that Guardado was a prima facie displaced worker and that Roos Foods had not shown that there was work available for Guardado given her capabilities a nd limitations. Roos Foods then filed this appeal. I have conc luded that the Board’s decision is supported by substantial evidence and free from legal error. STANDARD OF REVIEW The Supreme Court and this Court re peatedly have emphasized the limited appellate review of the fact ual findings of an administrative agency. The function of the Superior Court on appeal from a decisi on of the Industrial Accident Board is to determine whether the agency’s decision is supported by substantial evidence and1 General Motors v. McNemar , 202 A.2d 803, 805 (Del. 1964); General Motors v. Freeman , 164 A.2d 686 (Del. 1960).

2 Oceanport Ind. v. Wilmington Stevedores , 636 A.2d 892, 899 (Del. 1994); Battista v. Chrysler Corp. , 517 A.2d 295, 297 (Del. Super. 1986), app. dism. , 515 A.2d 397 (Del. 1986)(TABLE).

3 Johnson v. Chrysler Corp. , 213 A.2d 64, 66 (Del. 1965).

4 29 Del.C. § 10142(d).

5 Person-Gaines v. Pepco Holdings Inc. , 981 A.2d 1159, 1161 (Del. 2009).

6 Dallachiesa v. General Motors Corp. , 140 A.2d 137 (Del. Super. 1958).

7 Howell v. Supermarkets General Corp. , 340 A.2d 833, 835 (Del. 1975). 3 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 wei gh the evidence, determine questions of credibility, or make its own factual findings. 3 It merely determines if the evidence is legally adequate to support the agency's factual findings. 4 We review errors of law de novo

. 5 Absent an error of law, the Board' s decision will not be disturbed where there is substantial evidence to support its conclusions. 6 DISCUSSION Normally, in a total disability case, the employer is initially required to show that the claimant is not totally in capacitated (i.e., demonstrate “medical employability”). 7 The claimant is then required to rebut that showing, by showing that he or she is a prima facie displaced worker, or submit evidence of reasonable, yet8 Id.

9 Id.

10 Campos v. Daisy Construction Company , 107 A.3d 570 (Del. 2014). 4 unsuccessful, efforts to secure employment which have been unsuccessful because of the injury (i.e., actual displacement”). 8 As a rebuttal, the employer may then present evidence showing that there are regul ar employment opportunities within the claimant’s capabilities. 9 The Workers’ Compensation Act provide s that employees who have suffered a loss in earning power following a workplace injury are entitled to benefits, and this inquiry requires consideration of the empl oyee’s individual circumstances. The Board made three findings in reaching its decision denying Roos Foods’ Petition for Termination of Benefits. First, the Board found that Roos Foods met its initial burden by showing that Guardado was medically em ployable. Second, the Board found that Guardado rebutted that presumption by showing that she was prima facie displaced based upon her individual circumstances. Thir d, the Board found that Roos Foods did not present evidence showing that there were regular employment opportunities within Guardado’s capabilities and limitations. Roos Foods argues that the Board erred 1) in relying on Guardado’s undocumented worker status to conclude that she is a prima facie displaced worker, 2) in applying the Campos 10decision to the prima facie11 Torres v. Allen Family Foods, 672 A. 2d 26, 30 (Del. 1996) citing Ham v. Chrsyler Corp. 231 A.2d 258, 261 (Del. 1967). 5 displaced worker analysis, and 3) in not requiring Guardado’s displacement to be casually related to her accident at work, but instead basing it on her citizenship status. I. Medically Employable The Board’s finding that Guardado is medically employable is based upon substantial evidence and free from legal error. In a stipulation of facts, signed by the parties, both Dr. DuShuttle and Dr. Eric T. Schwartz concluded that Guardado is physically capable of returning to work w ith restrictions. Both doctors agree that Guardado can do one-handed light-duty work with her right hand and use her injured left hand as an “assistance hand.” This evidence is uncontradicted and clearly established that Guardado is medically employable. II. Displaced Worker The Board’s finding the Guardado is a prima facie displaced worker is based upon substantial evidence and free from legal e rror. “A worker is displaced if she is so handicapped by a compensable injury that [s]he will no longer be employed regularly in any well known branch of th e competitive labor market and will require a specially-created job if [s] he is to be steadily employed.” 11 An injured worker can be considered displaced either on a prima facie basis or through showing “actual”12 Chrysler Corp., v. Duff , 314 A.2d 915, 916 (Del. 1973).

13 See Vasquez v. Abex Corp ., 618 A.2d 91 (Del. 1992)(TABLE), 1992 WL 397454, at *2 (Del. Nov. 5, 1992). 6 displacement. The Board found that becau se Guardado only applied for a few jobs there was no basis to find “actual” displacemen t. Therefore, the Board had to consider whether Guardado was displaced on a prima facie basis. The critical elements to be considered in finding prima facie displacement are a person’ s age, mental capacity, education, and training. 12 Under normal circumstances, to qualify as a prima facie displaced worker, one must have only workedas an unskilled laborer in the general labor field. 13 Guardado’s job at Roos Foods was classified as an unskilled job in production assembly. The undisputed testimony before the Boar d established that Guardado 1) is 38- years-old, 2) is unskilled, 3) only speaks Spanish, 4) has the equivalent of a high school diploma from El Salvador, 5) can only use her right hand for light-duty work and left hand as an “assistance hand,” 6) has only worked for five years, and 7) is an undocumented worker unable to work legally in the United States. The Board recited these facts in its written opinion with th e primary focus being on the fact that Guardado was an undocumented worker. Even without Guardado’s undocumented status, the evidence certainly supports the Board’s finding that she fits into the prima facie displaced category. Guardado is almo st middle-aged and has no education14 Chrysler Corporation v. Duff , 314 A.2d 915, 916-17 (Del. 1973). 7 beyond high school in El Salvador. Guardado has no real workplace training, very little work experience, does not speak Englis h, is unskilled in the labor market, and has work restrictions that limit her to light-duty work with one hand. These undisputed facts certainly portray a woma n disqualified from regular employment in any well-known branch of the competitive labor market. When you add in the fact that she can not work legally in this c ountry, then her difficulties in obtaining work become even greater. There is no doubt that Guardado, with her capabilities and limitations, is going to have a very difficult time finding a job. III. Availability of Regular Employment The Board’s finding that Roos Foods fa iled to provide a labor market survey showing that there were jobs available to Guardado that took into consideration all of her capabilities and limitations is based upon substantial ev idence and free from legal error. “If the evidence of degree of obvious physical impairment, coupled with other factors such as the injured employee’s ment al capacity, education, training, or age, places the employee prima facie in the “odd-lot” category, as defined in Hartnett and Ham , the burden is on the employer, seeking to terminate total disability compensation, to show the availability to the employee of regular employment with the employee’s capabilities. 14 As the Superior Court stated in Abex , “Common sense15 Campos v. Daisy Construction Company, 107 A.3d 570, 576 (Del. 2014) citing Abex v. Brinkley , 252 A.2d 552, 553 (Del. Super. 1969). 8 and everyday experience tells us that a pe rson with given physical disabilities may be physically capable of performing certain “available” work, but because of [her] disability may be unacceptable to an employer and thus unable to secure such work ... Jobs must be realistically “within r each” of the disabled person ... A showing of physical ability to perform certain appropria te jobs and general availability of such jobs is ... an insufficient showing of the availability of said jobs to a particular claimant.” 15 Ellen Lock, a vocational rehabilitation witness for Roos Foods, performed a labor market survey. Lock testified thatthe survey was a representative sample of positions available to Guardado. Lock wa s aware of Guardado’s job history, her inability to speak English, educational hi story, and her physical limitations. Lock identified eight potential positions in her labor market survey th at she claimed were suitable for Guardado. Lock acknowledged that two of the jobs that Dr. Schwartz took issue with were probably not suitabl e for Guardado. Lock was not aware of Guardado’s legal inability to work in the United States. Lock stated it would be relevant to employers, but she did not ask them if they would hire an undocumented worker. Therefore, there is no evidence in the record that there are jobs are available16 Campos v. Daisy Construction Company , 107 A.3d 570, 572 (Del. 2014). 9 to Guardado with her qualifications and limitations. The Board found that while Guardado was medically able to work with restrictions, she belonged in the “odd-lo t” category because of her individual circumstances, thus shifting the burden to Roos Foods to show the availability of regular employment. The Board found that Roos Foods could not carry its burden to show that work was available to Guar dado with her qualifi cations and limitations because Roos Foods’ own witness could not te stify that there was any work available for Guardado in light of her undocumented status. Roos Foods argues that the Board’s c onsideration of Guardado’s immigration status was inappropriate and unrelated to her accident at work. The Delaware Supreme Court in Campos , a total disability case, addre ssed this, stating that federal restrictions that prevent employers fro m hiring undocumented workers may make it more difficult for an employer to prove job availability, but any difficulty is appropriately borne by the employer, who must take the employee as it hired [her]. 16 Guardado was an undocumented worker when she was hired by Roos Foods. Roos Foods could have prevented the problems it now complains of if it had only checked Guardado’s immigration status before it hire d her. Roos Foods, as the Supreme Court ruled in Campos , must take Guardado as it hired her. The fact that Guardado may10 have difficulty getting another job because of her age, low education level, lack of skills and work experience, physical limitati ons and immigration status is something that Roos Foods must accept. CONCLUSION The Board’s finding that 1) Guardado was medically able to work with restrictions, 2) was a prima facie displaced worker, and 3) Roos Foods did not establish that work was available to Guardado within her restrictions and qualifications is based upon substantial ev idence in the record and free from legal

error. The Industrial Accident Board’s decision is AFFIRMED

. IT IS SO ORDERED

. Very truly yours, /s/ E. Scott Bradley E. Scott Bradley ESB/sal oc: Prothonotary