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[T] Flax v. State6/29/2004
Submitted: April 2, 2004
ORDER
This 29th day of June 2004, upon consideration of the parties' briefs and the record below, it appears to the Court that:
(1) The appellant, William Flax, filed this appeal from the Superior Court's order affirming a decision of the Industrial Accident Board (the Board). The Board denied Flax's petition for additional compensation due. We find no merit to Flax's appeal. Accordingly, we affirm the Superior Court's judgment.
(2) The record reflects that Flax was employed by the State of Delaware Division of Family Services. On February 22, 2001, Flax was involved in a single vehicle accident while driving a State automobile. Flax suffered an injury to his low back. Flax did not dispute that, between 1994 and 2000, he had been involved in five previous accidents, all of which resulted in injury to his low back. Up to the time of the 2001 accident, Flax was in active treatment for his low back pain from those prior accidents, and the treatment included taking prescription pain medications. Flax did not return to work following the 2001 accident upon the advice of his physiatrist, Dr. Sternberg. After the accident, Flax received PIP benefits from the State, which included lost wages and medical payments.
(3) In May 2001, Flax filed a petition with the Industrial Accident Board to determine his right to workers compensation benefits. Initially, the State disputed that Flax was involved in a work-related accident. The Board therefore, scheduled a hearing on Flax's petition. Prior to the hearing, the State agreed that the accident was compensable for the purposes of reasonable and necessary medical expenses only. Flax's then-counsel informed Flax that a hearing before the Board was no longer necessary given Flax's receipt of wage benefits through the State's PIP coverage and the State's agreement as to the compensability of the accident.
(4) In August 2001, the State requested Flax to be examined by a neurologist, Dr. Kamali. Dr. Kamali's examination found no signs of muscle spasms, atrophy, or weakness or any other neurological problem. Following the examination, Dr. Kamali reported that Flax was capable of returning to work full-time with the restriction that he not lift anything over fifteen pounds. In October 2001, the State wrote to Flax indicating that there was a job available for him with the restriction specified by Dr. Kamali. Flax contacted the State and was told the available position, in fact, was his former position, which involved significant amounts of driving. Flax did not return to work at that time because driving long distances was contrary to Dr. Sternberg's restrictions.
(5) By September 10, 2001, Flax had reached the $25,000 policy limit on the State's PIP coverage. In May 2002, the State informed Flax that he had exhausted his paid leave and would be placed on an unpaid leave of absence. Flax then filed a petition with the Board to determine additional compensation due for a claimed period of total disability from September 10, 2001, the date PIP benefits were exhausted, through the end of March 2002. After a hearing on October 7, 2002, the Board denied Flax's petition on the ground that Flax had failed to prove he was totally disabled from any and all employment during the claimed period. The Board, however, did award Flax his claim for medical expenses as well as attorneys fees and medical witness fees.
(6) Flax appealed to the Superior Court. The Superior Court, in a detailed decision, found substantial evidence to support the Board's ultimate conclusion that Flax had failed to establish his total disability during the claimed period. Accordingly, the Superior
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