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San Del Packing Company v. Garrison8/31/2000
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The Board determined that Garrison failed to conduct a reasonable search. The Board found that Garrison no longer qualified as a displaced worker. Therefore, the Board granted San Del Packing's petition to terminate Garrison's total disability benefits.
Subpoenas Erroneously Denied
Due process requires that a claimant be permitted to subpoena witnesses in order to effectively develop his or her case and to cross-examine the employer's witnesses. In Torres, this Court held that the Board must respect the decision of a party to use the subpoena process provided for in the Delaware Workers' Compensation Statute. Since the decision to call a witness is not one for the Board to make, when the claimant's counsel is satisfied that a witness is needed, the Board cannot refuse to issue a subpoena. In Garrison's case, it is undisputed that the Board erred, as a matter of law, by not issuing the subpoenas requested by Garrison's attorney.
Subpoena Error Not Harmless
San Del Packing argues that the Board's legal error, in refusing to issue the subpoenas requested by Garrison, was harmless. San Del Packing relies upon Torres in support of that contention. In Torres, the Board's legally erroneous failure to issue subpoenas was held to be harmless because "inquiry into the availability of jobs was irrelevant . . . since the Board had not concluded that [Torres] had established that she was a displaced worker."
At issue in this appeal is San Del Packing's second petition to terminate Garrison's total disability benefits. Garrison's situation is distinguishable from the facts in Torres because the Board held that Garrison had conclusively established she was a displaced worker in 1993. Therefore, the basis for San Del Packing's second petition was its contention that Garrison's status as a displaced worked had changed.
The Board must comply with reasonable requests for the issuance of subpoenas. When San Del Packing sought to terminate Garrison's benefits in 1996, the burden of proof was upon San Del Packing to demonstrate the current availability of employment within Garrison's capabilities. It was reasonable and logical for Garrison to want to cross-examine the persons who San Del Packing contended had a job available for her in 1995 and 1996, especially since there had been no change in her medical condition since 1993.
The exclusion of relevant, material, and competent evidence by the Board is grounds for reversal, if that refusal is prejudicial.
Since Garrison had previously established her status as a displaced worker to the Board's satisfaction in 1993, due process required that Garrison have the opportunity to exercise her right to subpoena and cross-examine the employers identified by San Del Packing Company as having jobs for her in 1995 and 1996. The Board's refusal to issue the subpoenas requested by Garrison was not harmless error.
Conclusion
The judgment of the Superior Court is AFFIRMED.
Page 1 2 Delaware Personal Injury Attorneys
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