BABLARZ, JUDGE.
Appellant-Employee Terry Jamieson appeals a decision of the Industrial Accident Board regarding the Board's denial of Mr. Jamieson's partial disability claim made to Appellee-Employer General Motors Corporation. Because it is manifest on the face of the Appellant's brief that there is substantial evidence to support the Board's findings, and the Board's findings are free from errors of law, the Motion is DENIED.
I. FACTS
Mr. Jamieson was employed by the General Motors Corporation ("GM") as a millwright. His job consisted of welding, fitting, and moving machinery.
On July 29, 1998, Mr. Jamieson was installing a water cooler when the cooler toppled over and struck his right hand. That day, Mr. Jamieson was treated by Dr. Mohainmad Kamali for a fractured wrist. On August 5, 1998, Mr. Jamieson complained to Dr. Kamali of numbness and he was given a physician's note stating that he was unable to use his right hand until further notice. On September 2, 1998, Mr. Jamieson's cast was removed and he was told to return to work in two weeks, On September 16, 1998, Mr. Jamieson was told by Dr. Kamali that he could resume light work duty with instructions to lift no more than five pounds with his right arm. Mr. Jamieson was restricted to light work duty for several months. On January 20, 1999, Dr. Kamali permitted Mr. Jamieson to return to full work duty.
The Industrial Accident Board ("the Board") heard testimony that millwrights were customarily offered to work overtime hours both before and after July 29, 1998. The Board heard testimony from a GM millwright advisor who assigned jobs to other millwrights that generally light duty restricted workers did not receive as many offers of overtime as full duty workers. The Board also heard testimony that overtime work was only offered to those workers who were physically capable of doing the work, and that Mr. Jamieson was unable to perform some of the overtime work that was available to him while he was on light work duty status.
Mr. Jamieson claims that during his period of light work duty restrictions from August 12, 1998, through January 20, 1999, he was limited to a 40-hour work week and he was not offered the option to work overtime. Mr. Jamieson claims that he "has worked regular and consistent overtime since January 20, 1999." There was testimony that Mr. Jamieson was offered and refused overtime work on at least one occasion.
On May 5, 1999, the Board ruled that Mr. Jamieson was entitled to total disability benefits from July 29, 1998 until August 11, 1998, and that he was not entitled to partial disability benefits from August 12, 1998 until January 20, 1999, the date that he was permitted to return to full work duty status by Dr. Kamali. On June 30, 1999, Mr. Jamieson filed an appeal to this Court.
II. STANDARD OF REVIEW
On appeal from a decision of the Board, the function of a reviewing court is to determine whether the Board's decision is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. The Court's review of alleged errors of law by the Board is plenary.
29 Del. C. § 10142 (d); General Motors Corp. v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960); Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965).
Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., Del. Supr., 636 A.2d 892, 899 (1994) (quoting Olney v. Cooch, Del. Supr, 425 A.2d 610, 614 (1981)).
Johnson, 213 A.2d at 66.
Brooks v. Johnson, Del. Supr., 506 A.2d 1001, 1002 (1989) (citing Nardo v. Nardo, Del. Supr., 209 A.2d 905 (1965)).
III. DISCUSSION
The issue on appeal is whether the loss of overtime hours, resulting from a work related injury, may be recouped solely through an employer's overtime equalization policy to the exclusion of partial disability benefits under 19 Del. C. § 2325 of the Delaware Workers' Compensation Statute. The Court answers in the affirmative.
The Industrial Accident Board determined that Mr. Jamieson was not entitled to partial disability benefits because while he "basically did not receive overtime while he was on light duty, he has not `lost' that overtime. It has merely been delayed."
On appeal, Mr. Jamieson argues that the Board erred as a matter of law in denying him partial disability benefits while he was placed on light duty restrictions and not offered the option to work overtime hours. Mr. Jamieson argues that he has suffered losses of actual wages and earning capacity, and is therefore entitled to partial disability benefits under 19 Del. C. § 2325 for the period of August 12, 1998, through January 20, 1999. Mr. Jamieson argues that GM's overtime policy is not guaranteed to cover the lost overtime wages nor is such a policy contemplated by 19 Del. C. § 2325.
19 Del. C. § 2325 states:
For injuries resulting in partial disability for work, except the particular cases mentioned in subsections (a)-(g) of § 2326 of this title, the compensation to be paid shall be 66 2/3 percent of the difference between the wages received by the injured employee before the injury and the earning power of the employee thereafter; but such compensation shall not be more than 66 2/3% of the average weekly wage per week as announced by the Secretary of Labor for the last calendar year for which a determination of the average weekly wage has been made. This compensation shall be paid during the period of such partial disability for work, not, however, beyond 300 weeks. In construing the words "earning power of the employee thereafter" as those words appear in this section, the Board shall take into consideration the value of gratuities, board, lodging and similar advantages received by the employee in subsequent employment.
GM concedes that but for its overtime equalization policy, Mr. Jamieson would be entitled to recover partial disability benefits for the period that he was placed on light duty. However, GM argues that its overtime equalization policy will compensate Mr. Jamieson for any loss of overtime by giving him a priority over all other millwrights for future overtime hours, and that an award of partial disability benefits now would be tantamount to a double recovery. Thus, GM argues that its internal overtime policy precludes a finding that Mr. Jamieson suffered a loss of earnings qualifying him for partial disability benefits under 19 Del. C. § 2325.
GM's overtime equalization policy establishes a hierarchy of employees to be selected for overtime work based upon the number of overtime hours that they have been offered in the past. An equalization chart lists employees available for overtime. The worker at the top of the chart (also referred to as the "71 chart") has been offered the least amount of overtime hours, and is the first person to be offered the opportunity to work future overtime hours. The employee either accepts or rejects the offer of overtime until the quota of needed millwrights is met (usually three or four are required per overtime shift). The employee is credited for the offer of overtime whether he or she accepts or rejects the hours. This credit inversely affects the employee's ranking on the equalization chart.
The Board found that during Mr. Jamieson's period of light duty, there was some decrease in the amount of overtime offered to all of the millwrights, due in part to a strike and in part to a diminished need for extra labor hours. As of the Board's decision on May 5, 1999, Mr. Jamieson was at the top of the current 71 chart since he had been offered very little overtime hours while he was on light duty. The Board reasoned that while Mr. Jamieson did not receive much overtime while on light duty, he did not actually "lose" any overtime hours; rather, the hours were postponed until he was physically fit to work overtime. In other words, GM's overtime equalization policy preserves Mr. Jamieson's privilege to work overtime by giving him guaranteed priority over all other eligible workers on the 71 chart, until such time that he equals the credited overtime hours of the other millwrights.
The Court agrees with GM that Mr. Jamieson did not suffer a loss of earning power as contemplated by 19 Del. C. § 2325. The purpose of § 2325 is to reimburse the employee for lost earnings. Earning power is earning capacity; that is, a person's ability to earn. Earning power is not synonymous to wages received.
Chrysler Corp. v. Chambers, Del. Super., 288 A.2d 450, 452, aff'd Del. Supr., 299 A.2d 431 (1972).
Hall v. Bell Atlantic Delaware. Inc., Del. Super., C.A. No. 97A-10-019, 1998 WL 960686, at *3 Quillen, J. (Dec. 16, 1998); Chrysler Corp. v. Williams, Del. Super., 282 A.2d 629, 631 (1971), aff'd, 293 A.2d 803 (1972).
Hal 1998 WL 960686, at *3 (citing Ruddy v. Griffith, Del. Supr., 237 A.2d 700, 703 (1968)).
Mr. Jamieson accurately summarizes Hall v. Bell Atlantic Delaware Inc., but he is incorrect in stating that the Board has failed to properly follow it. There, the Court held that a loss of earning power may be shown by a claimant who has worked overtime in the past but as the result of a work-related injury can no longer work overtime, or overtime is unavailable. Hall dealt with an injured employee placed on light duty who sought partial disability benefits based on lost overtime, where there was no evidence of a cessation to his light duty restrictions nor an overtime equalization policy in place for the claimant to recover his missed overtime opportunities. In Hall the overtime hours could truly be considered a loss of earning power, perhaps permanently as of the date of the hearing.
Likewise, the cases of Globe Union v. Baker, Del. Super., 310 A.2d 883 (1973) and Macmicking v. State of Delaware, IAB Hearing Nos. 958248, 956621, and 931167 (Oct. 20, 1993) are distinguishable from the present case. In neither case were the claimants given opportunities to recover lost overtime hours or wages while placed on light or diminished duty restrictions through an overtime equalization policy.
In the present controversy, Mr. Jamieson's earning power or capacity is not by any means lost forever. It may have been limited or delayed during his months of light duty restrictions, but the hours are not permanently forfeited. Indeed, Mr. Jamieson's ability to earn overtime pay is greater than the majority of GM employees until such time that his overtime hours equal that which he was denied. GM's overtime equalization policy gives Mr. Jamieson a fair opportunity to reclaim those missed overtime hours by guaranteeing that he "will be able to make up the overtime in the future on a preferential basis." As such, it would be inequitable to award Mr. Jamieson partial disability payments for overtime hours when he is already being given preference to reclaim the same overtime hours.
Appellee's Answering Brief at 12.
IV. CONCLUSION
For the reasons stated herein, the decision of the Industrial Accident Board denying Terry Jamieson partial disability benefits is AFFIRMED.
IT IS SO ORDERED. _____________________ John E. Babiarz, Jr.
JEB, jr/SR/BJW Original to Prothonotary