Guardado v. Roos Foods, Inc.

SUPERIOR COURT OF THE STATE OF DELAWARE RICHARD F. STOKES SUSSEX COUNTY COURTHOUSE JUDGE 1 THE CIRCLE, sUITE 2 GEORGETOWN, DE 19947 TELEPHONE (302) 856-5264 February 7, 2018 Walt F. Schmittinger, Esq. Schmittinger & Rodriguez, P.A. 414 S. State Street P.O. Box 497 Dover, Delaware 19903 Andrew J. Carmine, Esq. Elzufon Austin & Mondell, P.A. 300 Delaware Avenue, Suite 1700 P.O. Box 1630 Wilmington, Delaware 19899 RE: Magdalena Guardaa'o v. R00s Foods, Inc., C.A. No.: Sl7A-05-003 RFS Dear Counsel: This is my decision on Magdalena Guardado’s (“Guardado”) appeal of the Industrial Accident Board’s decision terminating her total disability benefits.l Guardado was employed by Roos Foods, Inc. (“Roos Foods”) for approximately five years. During that time Guardado was employed as a machine manager On June 22, 2010, Guardado was involved in a work-related accident. Guardado injured her left wrist when she slipped on the tloor. Guardado was out of work until the summer of 2013 when she was placed on total disability. On June 18, 2014, lThe Board also denied Guardado’s claim for partial disability benefits, attomey’s fees, and medical witness fees. Claimant does not contest in her brief the denial of the partial disability benefits, attomey’s fees, or medical witness fees. As such, they will not be addressed l Guardado underwent surgery, consisting of a left wrist fusion performed by Dr. Richard DuShuttle. Dr. Dushuttle released Guardado to light-duty, one-handed work on August 7, 2014. Roos Food filed a Petition for Termination of Benefits on November 7, 2014, arguing that Guardado was no longer totally disabled and was physically able to return to work. The Board held a hearing on March 24, 2015. Dr. Eric Schwartz, who testified on behalf of the employer, agreed that Guardado could return to work in a one-handed light duty capacity. Roos Food also offered the testimony of Ellen Lock, a vocational case manager. Ms. Lock prepared a labor market survey in which she identified eight specific jobs which she believed Guardado could perform. Lock was aware of Guardado’s job history, her inability to speak English, educational history, and her physical limitations with her left hand. Lock was not aware of Guardado’s legal inability to work in the United States. Lock acknowledged that two of the jobs in the labor market survey were probably not suitable for Guardado due to her physical limitations Dr. DuShuttle, who testified on behalf of Guardado, stated that the impairment to the left hand is permanent. Dr. DuShuttle believes that Guardado’s use of her left hand is only good for simple activities, such as grasping light objects and assisting her right hand. Guardado testified before the Board. Guardado was 38 years old at the time of the first hearing. She was born in El Salvador and came to the United States in 2004. Guardado’s work history was limited to her job with Roos Food. She testified that she obtained the equivalent of a high school diploma in her native El Salvador. Guardado further testified that she does not speak or ...

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