Opinion
Nos. 97A-01-018-WCC, C.A. No. 97A-Q6-014-WCC.
Submitted: October 20, 1998.
Decided: November 30, 1999.
James J. Hanley, Esquire; 820 North French Street, Wilmington, DE 19801. Attorney for Industrial Accident Board Second Injury and Contingency Fund, Appellant.
Beth H. Christman, Esquire; 222 Delaware Avenue, Suite 1220, P.O. Box 1276, Wilmington, DE 19899. Attorney for Photo Color, Inc., Employer-Appellee.
James J. Maxwell, Esquire; 820 North French Street, Sixth Floor, Wilmington, DE 19801. Attorney for Industrial Accident Board Second Injury and Contingency Fund, Appellant.
Robert H. Richter, Esquire; 919 N. Market Street, #1300, Wilmington, DE 19801. Attorney for Tober Agnew Construction, Employer-Appellee.
OPINION
The Division of Industrial Affairs ("Division"), on behalf of the Industrial Accident Board Second Injury and Contingency Fund ("Fund"), separately appealed two decisions made by the Industrial Accident Board ("Board"). These two appeal cases have been consolidated for purposes of addressing whether the Division has a right to appeal a Board decision.
In the appeal against Photo Color Inc. and Frank Francis, the Fund, represented by James Hanley, Esquire, argued in its supplemental legal memorandum that the Fund was a party and, as such, had a right to appeal. In the appeal against Tober Agnew Construction and Kenneth Bleeker, the Fund, represented by James Maxwell, Esquire, argued that the Division is the party possessing a right of appeal from the Board on behalf of the Fund. In the Oral Argument on July 8, 1998, Mr. Hanley, speaking on behalf of the Appellants in both appeals, stated that the Division is the real party in interest. As such, the Court will address the issue of whether the Division has a right to appeal.
A. FACTS
On December 17, 1992, Frank Francis, a delivery driver for Photo Color, Inc. ("Photo Color"), was injured in a work-related accident while driving his employer's vehicle and suffered back and neck pain. When intolerable pain forced Mr. Francis to stop working, Photo Color paid Mr. Francis disability pursuant to an agreement reached by the parties. However, because Mr. Francis had sustained back and neck injuries in multiple car accidents prior to his work-related accident, Photo Color petitioned the Board for reimbursement from the Fund under 19 Del. C. § 2327 on May 2, 1995. The Board held a hearing on September 12, 1996, and on January 6, 1997, the Board granted Photo Color's request for reimbursement for payments made to Mr. Francis after December 17, 1993. On January 27, 1997, the Fund appealed the Board's decision arguing that it erred as a matter of law.In the second case, Mr. Bleeker, as a laborer for Tober Agnew Construction ("Tober Agnew"), fell thirteen to sixteen feet from a scaffolding on September 3, 1994 and sustained a head injury and multiple bone fractures. Tober Agnew agreed to pay Mr. Bleeker $346.17 per week. But, because Mr. Bleeker had suffered from a previous head injury at the time of his 1994 work-related fall, Tober Agnew petitioned the Board on June 5, 1996 for reimbursement from the Fund under 19 Del. C. § 2327 for a portion of the payments made to Mr. Bleeker. On May 15, 1997, the Board granted Tober Agnew's petition for reimbursement, and the Division appealed the Board's decision in the interest of the Fund. In response, Tober Agnew filed a Motion to Affirm.
See supra note 2.
See supra note 1.
After reviewing the briefs in both appeals, the Court requested supplemental briefing and held an Oral Argument on the issue of whether the Division has a right to appeal.
See supra note 1.
B. DISCUSSION
Delaware's appellate jurisdiction is limited by the Delaware Constitution and statutes. In 1996, the Delaware Supreme Court reiterated this basic principle in New Castle County v. Chrysler Corporation when it stated that a party may not appeal an administrative board decision to this Court "unless the statute [or the Constitution] governing the matter has conferred a right to do so." In the instant case, the Court is confronted with the issue of whether the Division has a right to appeal a Board's decision. Unfortunately, the answer to this question cannot be resolved by a simple review of the statutory language granting that right because such explicit language does not exist. Years of piecemeal legislative changes from commissions to boards to executive departments have left the statutory framework in disarray. Thus, begins the Court's hunt through a jungle of administrative and legislative history in search of an appellate right.
Del. Super., 681 A.2d 1077, 1080 (1995), aff'd, Del. Supr., No. 384, 1995, Walsh, J., (March 8, 1996) (ORDER) (holding that since there was no statute granting the County a right of appeal of a Board of Assessment Review decision, the County was barred from appealing to Superior Court).
Id. (citing Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., Del. Supr., 636 A.2d 892, 900 (1994)). See also 10 Del. C. § 541; Del. Const. art. IV, § 7.
The General Assembly gave this Court jurisdiction to hear Board appeals in 19 Del. C. § 2350. But, the legislature limited this statutory right of appeal by restricting who may bring such action in 19 Del. C. § 2349, which provides:
Del. C. § 2350(a) states in part: "[t]he Superior Court shall have jurisdiction to hear and determine all appeals taken pursuant to this chapter."
[a]n award of the Board, in the absence of fraud, shall be final and conclusive between the parties, except as provided in § 2347 of this title, unless within 20 days after a copy thereof has been sent to the parties, either party appeals to the Superior Court for the county in which the injury occurred or, if the injury occurred out of the State, to the Superior Court in and for the county in which the hearing was had.
19 Del. C. § 2349 has been subsequently amended. But, its changes affect all awards issued by the Board after July 13, 1998. Therefore, these amendments are inapplicable to the case at hand.
Applying the limitation set forth above, one would think that the Court's search is over. Because the captions of the two proceedings before the Board were Frank Francis v. Photo Color, Inc. and Kenneth Bleeker v. Tober Agnew Construction, the Division was not a named party and thus, under this statute, appears to have no appeal right. But, unfortunately, the answer is not that simple. The Court must explore and venture through the many paths entwined in this statutory jungle before reaching a conclusion.
In addition to the rules for the Board set forth in Title 19, the practices and procedures of Delaware's various administrative boards, which includes the Board, are also controlled by the umbrella statute found in Chapter 101 of Title 29, commonly referred to as the Administrative Procedures Act ("APA"). Thus, it is imperative to review these statutes as the Court searches for appellant authority. Section 29 Del. C. § 10142 of Title 29 sets forth the procedure for judicial review of case decisions made by governmental boards and provides in part that:
Any party against whom a case decision has been decided may appeal such decision to the Court.
29 Del. C. § 10142 (a) (emphasis added).
Again, the Court is faced with the question of whether the Division fits the definition of "party," and if so, whether a case decision has been decided against it. Fortunately, the APA provides the Court with some direction by defining "party" as:
each person or agency named or admitted in an agency proceeding as a party, or properly seeking and entitled as of right to be admitted as a party to an agency proceeding.
29 Del. C. § 10102 (6) (emphasis added).
Therefore, according to the definition, the Court must first decide if the Division is a "person" or "agency." While "person" is not specifically defined in the statute, it has been commonly defined as, "a human being (i.e., natural person), though by statutory term may include labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers." It is clear that the Division does not fit within this definition. Thus, the Court will next explore the path of "agency."
BLACK'S LAW DICTIONARY 1142 (6th ed. 1990).
"Agency" is defined in the APA as:
any authority, department, instrumentality, commission, officer, board or other unit of the state govemment authorized by law to make regulations, decide cases or issue licences. Agency does not include the General Assembly, courts, municipalities, counties, school districts and other political subdivisions, joint state-federal, interstate or intermunicipal authorities and their agencies.
As the definition indicates, the Court must review the Division's duties and responsibilities in deciding whether "agency" fits. The governing statute defining the Division's duties is 29 Del. C. § 8510, which states:
(a) The Division of Industrial Affairs is established and shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions heretofore vested in:
(1) The Department of Labor and Industrial Relations, the Labor Commission, the State Child labor Inspector, the Labor Inspector and the State Mediation Service pursuant to Chapters 1 (except § 104 Title 19) and 5 of Title 19;
(2) The Department of Labor and Industrial Relations and the State Apprenticeship and Training Council pursuant to Chapter 2 of Title 19;
(3) The Labor Commission of Delaware and the Division Against Discrimination pursuant to Chapter 7 of Title 19;
(4) The Department of Labor and Industrial Relations pursuant to Chapters 8, 9 and 11 of Title 19.
(b) The administrative, ministerial, fiscal and clerical functions of the Industrial Accident Board, set forth in Chapter 23 of Title 19, shall be performed by the Division of Industrial Affairs.
29 Del. C. § 8510. The delegation concerning 29 Del. C. § 8510 (b) has been changed according to the revised 19 Del. C. § 2396 (b), effective December 1997, which provides, "[the Department [of Labor] shall perform the administrative, ministerial, fiscal and clerical functions of the Workers' Compensation Fund [the Fund]." This delegation to the Department, however, is inapplicable to the case at hand because the appeal occurred prior to this effective date. But, the change would not affect the decision in this case.
According to 29 Del. C. § 8510 (a), the Division is responsible for performing the powers and duties of the Department of Labor and other commissions and councils as set forth in various chapters of Title 19. Among many others, these duties include making rules and regulations. Therefore, the Court believes it is fair to conclude that the Division has some regulatory and licensing authority and thus, would fit within the "agency" definition found in the APA. As such, the first prong of the "party" definition under 29 Del. C. § 10102 (6) has been met.
Despite the Appellants' abandonment of the argument in the Oral Argument, the Court notes that the "Fund" also does not qualify as a "person or agency" as defined above even though the "Fund" is arguably present in the proceeding before the Board. In addition, no express right to appeal has been given to the "Fund" in any statute. For these reasons, the "Fund" has no right to appeal the Board's decision.
See also Subsequent Injury Fund v. Pack, Md. Ct. App., 242 A.2d 506 (1968) (holding that Maryland's Subsequent Injury Fund is not a person nor an agency, but rather, it is a glomerate of money that has no right of appeal because the legislature had not formulated one).
The trail now turns to the second part of the definition, which requires that the agency meet one of the following categories:
(a) it is a named or admitted as a party; or
(b) if properly sought, was entitled as of right to be admitted as a party.
There is nothing in the record to reflect that the Division has been named or was specifically admitted as a party to either of the proceedings below. As such, if the Division is to meet the APA definition of "party," it must establish that it "[sought] and [is] entitled as of right to be admitted."
Id.
The Division asserts that it performs the administrative, ministerial, fiscal and clerical functions of the Board as authorized by 29 Del. C. § 8510 (b), and due to the Board's jurisdiction over the Fund provided in Chapter 21 of Title l9, the Division operates as the Fund's guardian. Under this fiduciary duty, the Division asserts that it must be involved in the defense of the Fund's case before the Board, and as the only entity concerned with the appropriate use of the Fund's resources, it has an implied right to appear before the Board.
Effective December 1997, Chapter 21 was repealed and the provisions concerning the Board are now set forth in 19 Del. C. § 2301A-D.
In considering the Division's arguments, the Court must first closely examine the Division's duties to the Board. According to 29 Del. C. § 8510 (b), the Division's duties relate to management, executive duties, government expenditures, revenues and debts, and clerical work. But since the enactment of these responsibilities, the Division has assumed a more active management function in regards to requests for Fund payments, which has logically led to a more significant role of assistance to the Board. That is, prior to 1994, requests for disbursements from the Fund were handled informally without hearings or the requirement of the presentation of evidence. A stipulation would merely be presented to the Board by the employer with a doctor's report attached, and since the requests were unopposed, the Board would immediately approve the petitions. Believing that this procedure was undermining their administrative and management functions and, perhaps, the future integrity of the Fund, the Division instituted procedures through its own initiative in 1994 that allowed it to receive all applications for reimbursement or payment from the Fund and review them to ensure compliance with 19 Del. C. § 2327. In recent years, this has evolved into a statutory requirement that a Deputy Attorney General must represent the Fund in any proceeding that exposed it to liability. As such, the critical question is whether these practices and procedures, which have been established in good faith and with good intentions, provide a basis for entitlement to the Division to be admitted as a party.
See AMERICAN HERITAGE DICTIONARY 22, 355, 686, 1150 (3d ed. 1992) (which defines administrative, clerical, fiscal and ministerial).
While no such authority for this practice was provided to the Division, it argues that this practice was authorized by the duties in 29 Del. C. § 8501 (b).
Effective December 1997, a Deputy Attorney General must represent the Fund in any proceedings that expose the Fund to liability. 19 Del. C. § 2396 (b). But, this was not a requirement mandated at the time of these proceedings.
Unfortunately, the Court finds no such basis. Despite the Division's active role, which it created through its own initiative, the legislature did not grant the Division any decisive power over the Fund. In fact, the Division needs the Board's approval to make disbursements from the Fund. The Division's primary responsibilities are to first ensure that the case is in an appropriate administrative posture so that the Board can make a fully informed decision and, secondly, to make distribution from the Fund if instructed to do so by the Board. Therefore, although the Division classifies its role as guardian over the Fund, it is better classified as a liaison, providing bookkeeping, accounting and auditing services to ensure compliance with statutory procedures that would assist the Board in making a decision. The Division is the middleman or g o between and is simply required to follow the Board's directions and decisions.
For additional support to its argument, the Division relies on State v. Minner, which addressed whether the Department of Labor had a right to appeal an Unemployment Insurance Appeals Board decision. In Minner, the Court held that, because the Department of Labor was charged with the basic administration of the Unemployment Compensation Fund, its responsibilities could not be successfully completed without access to the appellate process. As such, the Court concluded that the Department of Labor was entitled to a right to appeal decisions of the board in employer assessments-to-the-Fund cases. Here, the Division argues that similarly to Minner, it has an appeal right based on its administrative responsibilities to the Board and denial of this right would violate public policy.
Del. Supr., 448 A.2d 227 (1982).
Id. at 230.
The Court believes that the Division's reliance on State v. Minner, supra, is misplaced because it is factually and procedurally distinguishable to the present case. In Minner, the employer protested a special assessment to the Unemployment Compensation Fund and was denied relief by the Department of Labor. Consequently, the employer appealed to the Unemployment Insurance Appeals Board, which excused the employer from paying the special assessment. As a result, the Department of Labor appealed the board decision to this Court, whereupon the employer argued that the Department of Labor lacked authority to appeal such decision. While the Delaware Supreme Court in Minner found that the Department of Labor was entitled as of right to appeal a decision of the Unemployment Insurance Appeals Board, it limited its holding to appeals for employer assessment decisions and would not rule on appeals of the Board on compensation claims. Minner is also distinguishable to the instant case because in Minner, the Department of Labor defended an administrative decision that it had made. In the instant case, as mentioned above, the Division had no decision making power in regards to the Fund and therefore made no decisions, which were ultimately appealed to the Board. Unlike the Department of Labor in Minner, the Division made no decision, which it was entitled to defend.
The Department's responsibility over the administration of the Unemployment Compensation Fund in Minner is governed by 19 Del. C. § 3312, which grants the Department authority to prescribe regulations and advocate policy. It provides that "[a]ll benefits shall be paid through employment offices, in accordance with such regulations as the Department prescribes." 19 Del. C. § 3312.
Minner, 448 A.2d at 230 n. 4. The Court stated: "We note that we limit our decision to the Department's right to appeal employer assessment decisions. We leave for another day the question of the Department's right to appeal rulings of the Board on compensation claims."
The Court also notes that the General Assembly amended many of the Title 19 statutes in the Workers' Compensation Act, which became effective in December 1997 Although 19 Del. C. § 2349, which provides that "either party" may appeal the Board's decision, was revised, its amendments did not include an express appeal right to the Division. In addition, as mentioned previously, the General Assembly formalized the practice of representation for the Fund during Board proceedings in Section 2396 by mandating that the Fund be represented by a Deputy Attorney General in any proceedings where the Fund is exposed to liability. But, at the same time, the legislature neglected to provide an appeal right to the Fund or the Division. As a result, this deliberate exclusion cannot simply be ignored by the Court.
In addition to other amendments, the "Industrial Accident Board Second Injury and Contingency Fund" was substituted with "Workers' Compensation Fund."
See supra note 10.
This new representation requirement in conjunction with a deliberate absence of any express appeal right can be interpreted in a number of ways, none of which are favorable to the Division. It is axiomatic that when a person is admitted as a party in a legal proceeding, they are entitled as of right to be represented by an attorney. As such, this statute indicates that neither the Fund nor the Division is a party with a right of appeal because a statutory grant of counsel would not be necessary if the Fund was admitted to the proceeding. In addition, the Court in Subsequent Injury Fund v. Pack, Md. Ct. App., 242 A.2d 506 (1968), which addressed whether Maryland's Subsequent Injury Fund had a right to appeal, also suggested that providing the Fund with representation by an Attorney General at a hearing where the Fund was involved afforded it with `due process.'
Furthermore, as the Maryland Court of Appeals noted in Subsequent Injury Fund v. Pack, the Court cannot impliedly read a right of appeal into the statute. "If greater safeguards are needed to protect the Fund from invasion by unwarranted awards, it is within the province of the Legislature, and not the courts, to provide such protection." As such, if the Division wants the authorization to appeal a Board's decision, it must go to the General Assembly for such request.
See supra note 30.
Pack, 242 A.2d at 511. As a result of the Pack decision, the Maryland legislature responded by expanding the appeal right to include the Fund. See Subsequent Injury Fund v. Ehrman, Md. Ct. Sp. App., 599 A.2d 875, 878 (1992).
Apparently, this is the first case in which the issue of this Court's jurisdiction over appeals by the Division of a Board decision has been squarely presented. Due to the lack of an explicit statutory right and legislative initiative, the Court finds that the Division has, for now, no right to appeal the Board's decision. The decision in this case has been difficult for the Court due to its belief that the Division and its counsel have critical and appropriate roles before the Board. They play a critical role in ensuring a full presentation of the matter to the Board so that it can make an informed decision. The Court believes that they should have a right to participate in any proceeding in which a Fund disbursement is at issue and should be vested with the ability to appeal any decision that they believe is adverse to the Fund's welfare. But a Court's personal beliefs are not an appropriate basis on which to find a legal conclusion nor should the Court imply a right when the General Assembly has not clearly articulated one. While this Court realizes that its decision today may be perceived as undermining the executive branch's authority to manage the Fund, it reminds the parties that the legislature has decided to maintain an administrative board structure to ensure the Fund's integrity and has not transferred that responsibility to the executive branch. At the moment, the Board is entrusted with deciding the proper use of the Fund. As such, the Court is bound by the language of the applicable statutes enacted by the General Assembly and by the Delaware Supreme Court's holding in Chrysler, supra. Consideration of whether the Division should possess a right of appeal may only be undertaken by the General Assembly, whose attention is respectfully directed toward this issue.
See supra note 7 and accompanying text.
See supra note 7.
C. CONCLUSION
For the reasons set forth above, this Court holds that the Division of Industrial Affairs does not have a right to appeal an Industrial Accident Board decision. As such, the appeals from the Board's decisions are DISMISSED. Tober Agnew's Motion to Affirm is rendered moot by this decision. ____________________________ Judge William C. Carpenter Jr.