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San Del Packing Company v. Garrison8/31/2000
Submitted: June 20, 2000
Upon appeal from the Superior Court. AFFIRMED.
This is an appeal from a final judgment by the Superior Court. The Superior Court reversed a decision of the Industrial Accident Board that granted the petition of the employer-appellant, San Del Packing Company, to terminate its total disability payments to the claimant-appellee, Thelma Garrison. The Superior Court reversed the Board's decision, under the authority of our decision in Torres v. Allen Family Foods, because the Board should have issued the subpoenas requested by the claimant's attorney.
In this appeal, the employer acknowledges that the Board committed legal error by not issuing the subpoenas. The employer argues, however, that legal error was harmless. We disagree. Accordingly, we have concluded that the judgment of the Superior Court must be affirmed.
Facts
On August 24, 1990, Thelma Garrison suffered a compensable back injury while employed with San Del Packing Company. Thereafter, the Board approved a settlement agreement between Garrison and San Del Packing providing for total disability compensation to be paid to Garrison at a rate of $130.67 per week. Garrison was subsequently treated by Dr. Rowe, who performed surgery in 1991 to correct a herniated disk. Although the surgery provided some benefit, Garrison continued to suffer from lower back pain.
On October 4, 1993, San Del filed a petition to review its compensation agreement with Garrison. At the hearing, Dr. Rowe and Dr. Case testified as to the extent of Garrison's injuries. Garrison testified that before her injury , she had worked only as an unskilled laborer, had an eighth grade education and had no training with computers or other office equipment. Garrison also testified that she had engaged in an intensive job search but was unable to obtain employment. The Board concluded that Garrison qualified as a displaced worker and was entitled to receive total disability benefits.
On September 16, 1996, San Del again moved to terminate Garrison's total disability benefits on the ground that Garrison was not totally disabled and failed to conduct a reasonable job search. Prior to the hearing, Garrison requested the Board to issue subpoenas to the persons named in San Del Packing's labor market survey. The Board refused to issue the subpoenas requested by Garrison because she failed to state specific reasons for the necessity of the proposed witnesses' testimony.
The Board conducted a hearing on San Del Packing's second petition to terminate Garrison's benefits. San Del Packing presented a rehabilitation expert who testified that she conducted a survey between February 1995 and July 1996, locating 37 full or part-time positions available for a person with Garrison's limited qualifications. The rehabilitation expert opined that Garrison failed to conduct an adequate job search in that she applied for positions that were no longer available or that were outside of her educational abilities or her geographical scope.
In response to San Del Packing's petition, Garrison presented evidence to support her contention that she was still a displaced worker. Garrison testified that she was unable to obtain employment after conducting a reasonable job search. According to Garrison, throughout 1994 and 1995, she conducted an extensive job search consisting of: sending out resumes and cover letters through her attorney's office; pursuing employment advertisements in the newspaper; and checking the job listings in San Del Packing's labor market survey. Dr. Rowe and Dr. Case testified that Garrison's medical condition had not changed since the Board's 1993 decision.<
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