Opinion
C.A. No. K19A-07-001 WLW
01-04-2021
JOHN BRISTOR, Claimant Below-Appellant, v. DOVER DOWNS, INC., Employer Below-Appellee.
Candace E. Holmes, Esquire and Walt F. Schmittinger, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorneys for Claimant Below-Appellant. John J. Ellis, Esquire of Heckler & Frabizzio, Wilmington, Delaware; attorney for Employer Below-Appellee.
ORDER
Upon Appellee's Motion for Reargument
DENIED. Candace E. Holmes, Esquire and Walt F. Schmittinger, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorneys for Claimant Below-Appellant. John J. Ellis, Esquire of Heckler & Frabizzio, Wilmington, Delaware; attorney for Employer Below-Appellee. WITHAM, R.J.
Before the Court is Employer Below-Appellee Dover Downs' (hereafter "Dover Downs") Motion for Reargument and Claimant Below-Appellant Jason Bristor's (hereafter "Bristor") response in opposition. The Court carefully reviewed the parties' submissions, the record of this case, the arguments of counsel on October 6, 2020, and the applicable legal authority. It appears to the Court that:
Factual and Procedural Background
1. On July 11, 2010, Bristor sustained a compensable work injury while working for Dover Downs as a security guard. On November 7, 2018, Bristor filed with the Industrial Accident Board (hereafter "the IAB") a Petition to Determine Additional Compensation Due seeking compensability of treatment he already received from Dr. Jason Scopp, M.D. on April 14, 2017, and authorized for more treatments recommended by his doctor. On March 25, 2019, Bristor filed an Amendment to his Petition, which consisted of an additional Exhibit (hereafter "Exhibit C"). Exhibit C, which was dated March 20, 2019, presented Dr. Scopp's log of Bristor's treatments and also included a handwritten note indicting that the bill for April 14, 2017, remained outstanding. The hearing was originally scheduled for April 29, 2019, but was later rescheduled for June 24, 2019, due to a conflict in the IAB's calendar.
See Opening Brief of the Claimant Below-Appellant ("Opening Brief") at 2.
Id.
Id.
See Id.
Id.
2. During the hearing, Bristor presented Dr. Scopp's testimony and also argued that the bill for April 14, 2017, remained outstanding. Dover Downs argued that the bill was paid and presented a payment log to confirm its position. Following the hearing, the IAB denied Bristor's Petition and found that Bristor did not meet his burden of proof to demonstrate that the bill remained outstanding. Bristor then brought this case to the Superior Court to challenge the IAB's determination, and Dover Downs responded in opposition. Dover Downs also filed a Motion to Strike a portion of Bristor's submission that references Exhibit C, as well as the Exhibit itself, based on the assertion that the IAB did not consider the Exhibit. Bristor opposed the Motion arguing that the Exhibit should not be stricken because it was part of the record and, therefore, it was, or should have been, considered. This Court reversed the IAB's decision and remanded the case back for reconsideration and/or clarification as to whether the Exhibit was used in the IAB's decision and, if so, why it was outweighed by the Dover Downs' payment ledger. On October 16, 2020, this Court heard oral arguments from both parties, and, on October 26, 2020, Bristor filed for attorneys' fees with this Court.
Id. at 2-3.
See Id. at 2. The payment log was not authenticated, but the IAB agreed to consider it and to give it the weight it deserved under the circumstances.
See Id. at 6.
Id.
See Employer Below-Appellee's Motion to Strike ("Mot. To Strike").
See Claimant Below-Appellant's Response to Employer Below-Appellee's Motion to Strike ("Response to Mot.").
Parties' Contentions
3. Dover Downs claims that Exhibit C was never properly before the IAB, and it would have been an error for the IAB to consider it. Dover Downs relies on 29 Del. C. § 10161(e), which states that a panel's decision must be based on the evidence presented at the hearing. Accordingly, Dover Downs argues that Exhibit C was never admitted into evidence. Bristor argues that Dover Downs is simply rehashing the argument already decided by the Court. Bristor further argues that 29 Del. C. § 10161(e) does not apply to the IAB's hearings. Additionally, Bristor points out that 29 Del. C. § 10127 allows the IAB to consider correspondence submitted by a party.
Employer-Below Appellee Motion for Reargument ("Mot. For Rearg.") at ¶ 3.
Id.
Claimant Below-Appellant's Response to Employer Below-Appellee's Motion for Reargument ("Response to Mot. For Rearg.") at ¶ 3.
Id. at ¶ 4.
Id. at ¶ 6.
Standard of Review
4. A motion for reargument pursuant to Superior Court Civil Rule 59(e) will be granted only if "the Court has overlooked a controlling precedent or legal principles, or the Court has misapprehended the law or facts such as would have changed the outcome of the underlying decision." A motion for reargument is not a chance for a party to rehash prior argument that the Court already decided or "to present new arguments not previously raised."
Strong v. Wells Fargo Bank, 2013 WL 1228028 at *1 (Del. Super. Jan. 3, 2013) (quoting Kennedy v. Invacare, Inc., 2006 WL 488590 at *1 (Del. Super. Jan. 31, 2006)).
Id. (quoting Kennedy, 2006 WL 488590 at *1).
Discussion
5. Dover Downs in this case failed to establish that the Court overlooked a legal principal or misapprehended a fact. "The agency shall make its decision based upon the entire record of the case and upon the summaries and recommendations of its subordinates." It remains unclear whether the IAB considered Exhibit C at the hearing. Furthermore, it remains unclear to the Court whether the bill in question has been paid in full by Dover Downs. This confusion must be addressed and decided at the Board level, which is why the Court remanded this case.
6. The Court disagrees with Dover Downs in the assertion that the IAB could not have considered the Exhibit based on 29 Del. C. § 10161(e). The Court further disagrees with Dover Downs in the assertion that 29 Del. C. § 10127 stands for the proposition that Exhibit C was not admitted into evidence. Section 10161(e) does state that decisions "must be based on evidence presented at the hearing," but that same section also requires that those same decisions be "supported by substantial evidence in the record." Exhibit C in this case appears to be a part of the correspondence between the IAB and the parties, which is covered by 29 Del. C. § 10127. The Court agrees with Bristor and views Dover Downs' Motion as a repetitive submission that focuses on whether the IAB could have considered Exhibit C during the hearing. This question has been already addressed, and the Court will not entertain another iteration of the same song.
7. As to Bristor's appeal for attorneys' fees, this Court relies on 19 Del. C. § 2350(f) which gives this Court discretion to award such fees upon two conditions: 1) that the claimant appeals an IAB decision to the Superior Court and 2) from an appeal of the Superior Court to the Supreme Court where the claimant has won his hearing before the IAB and is affirmed on appeal. Bristor's case satisfies the first condition. There was an appeal of an IAB decision to this Court, however, that appeal resulted in a remand to the IAB and not an affirmation of the claimant's position. At this time, an award of attorneys' fees would be premature.
19 Del. C. § 2350(f). --------
Conclusion
8. WHEREFORE, for all the reasons stated above, this Court DENIES Employer Below-Appellant Dover Downs' Motion for Reargument and this Court does not retain jurisdiction in this matter.
IT IS SO ORDERED.
/s/ William L . Witham, Jr.
Hon. William L. Witham, Jr.
Resident Judge WLW/dmh