Opinion
C.A. No. 01A-06-004 JRS
Submitted: December 17, 2001
Decided: February 26, 2002
On appeal from the Industrial Accident Board. Reversed and Remanded.
ORDER
This 26th day of February, 2002, upon consideration of the appeal of Kenneth Shortess ("Mr. Shortess") from the decision of the Industrial Accident Board ("the Board") denying his request for a continuance of the hearing on his Petition to Determine Additional Compensation Due, and the parties' briefs, it appears to the Court that:
1. Mr. Shortess sustained a compensable injury on March 2, 1990, while he was employed by New Castle County. On December 20, 2000, Mr. Shortess filed a Petition to Determine Additional Compensation Due ("the Petition") to recover transportation expenses incurred while seeking medical treatment and medical expenses from New Castle County.
Mr. Shortess utilized a preprinted form as his Petition to Determine Additional Compensation Due. The name and address of Kenneth F. Carmine, Esquire was preprinted on the form. There is some dispute as to whether Mr. Carmine ever represented Mr. Shortess. Mr. Shortess alleges that Mr. Carmine never represented him and that he simply utilized the form that was given to him. New Castle County alleges that at the time the Petition was filed, Mr. Carmine represented Mr. Shortess. In either event, it does not appear that the Board's decision was influenced in any way by Mr. Carmine's involvement, or lack thereof, in this case. Moreover, the resolution of this factual dispute is not relevant to the Court's determination here.
2. On May 4, 2001, Mr. Shortess, acting pro se, wrote to the Board to request a continuance of his hearing scheduled for June 1, 2001. He indicated that his previous attorney, Mr. Fink, had been suspended from practice and that he had been unable to find an attorney to accept his case despite his diligent efforts.
Mr. Fink was suspended from the practice of law by Order dated March 7, 2000. In the Matter of Fink, Del. Supr., No. 90, 2000 (March 7, 2000) (ORDER). Mr. Shortess filed his Petition on December 20, 2000.
3. Thereafter, Mr. Shortess retained his current counsel to represent him. The Board held a hearing on May 24, 2001 to address Mr. Shortess' failure to respond to discovery requests from New Castle County. The Board had not ruled upon Mr. Shortess' written request for a continuance at that time. At the hearing, counsel for Mr. Shortess renewed his client's request for a continuance of the hearing on the Petition due to his inability to prepare the case properly given the time constraint.
4. The Board denied Mr. Shortess's request for a continuance stating that "the claimant in this matter has had ample time [to prepare]." The Board also concluded that "the claimant had a responsibility to seek legal counsel if he chose to." On June 1, 2001, the Board held a hearing on Mr. Shortess' Petition to Determine Additional Compensation Due. Counsel for Mr. Shortess reiterated his request for a continuance, which the Board treated as a Motion for Reconsideration. The Board denied the request once again and subsequently granted New Castle County's Motion to Dismiss based on Mr. Shortess' inability to present the appropriate medical testimony. Mr. Shortess appeals from the Board's denial of the continuance.
IAB Tr. at 11 (May 24, 2001).
5. In reviewing a decision of the Board, the Court must determine whether it is supported by substantial evidence and free from legal error. "`Substantial evidence' means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'
Brittingham v. St. Michael's Rectory, Del.Super., C.A. No. 99A11-001, Bradley, J. (July 25, 2000) (Mem.Op.) (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
Id. (citations omitted).
6. "When sitting as an intermediate court of appeals, and unless otherwise mandated by statute, the Superior Court's function basically is the same as that of the Supreme Court." The Court acts "to correct errors of law and to review the factual findings of the court below to determine if they are sufficiently supported by the record and are the product of an orderly and logical deductive process."
Baker v. Connell, 488 A.2d 1303, 1308 (Del. 1985).
Steelman v. State, 2000 WL 972663 at *1 (Del.Super.) (citations omitted).
7. "`A discretionary ruling by a trial court or administrative body on a motion for a continuance will not be set aside unless that decision is unreasonable or capricious.'" Mr. Shortess has the burden of proving that the Board's denial of his continuance request was arbitrary or unreasonable.
Fairwinds Shopping Center v. Board of Adjustment of New Castle County, Del. Super., C.A. No. 91A-12-5, Cooch, J. (June 4, 1993) (Mem. Op. at 10) (citations omitted).
Id.
8. Section 19 Del. C. § 2348(h) of Title 19 of the Delaware Code ("Section 2348(h)") governs requests for continuances of hearings before the Board. In pertinent part, it states "[r]equests for continuance may be granted only upon good cause shown by the party requesting the continuance. Good cause shall be set forth in the Rules of Procedure of the Industrial Accident Board."
Del. C. Ann. tit. 19 Del. C. § 2348(h) (1995).
9. The standard for good cause is set forth in Rule 12 of the Board's Rules of Procedure. Rule 12 sets forth 8 instances that constitute good cause. In addition, Rule 12 clearly sets forth the Board's procedure for ruling on requests for continuances. It states:
See Rule 12(B)(1). In his opening brief, Mr. Shortess cites Rule 12(A)(1)(a), which is no longer in effect as quoted. The Board promulgated new rules of procedure effective March 10, 1998. The operative rule governing requests for continuances prescribes a time frame for the Board to rule upon such a request. The former rule contained no such time frame.
"A request for a continuance shall be in writing and shall be addressed to the Department of Labor pretrial scheduling officer. A request for a continuance may be granted upon showing of the appropriate cause under the statute, 19 Del. C. § 2348. The scheduling officer shall rule upon the request within three (3) business days of the receipt of the written request unless the request is made within three (3) business days of the hearing in which case the matter shall be ruled upon on the day of the request. Said ruling may be issued verbally to the parties as long as a written decision is issued within three (3) business days of the ruling. The written decision shall set forth the reason(s) for the grant or denial of the request."
Rule 12(A).
10. Mr. Shortess filed a written request for a continuance on May 4, 2001. The Board did not rule upon his request until the day of the hearing on New Castle County's discovery motion (May 24, 2001). Thus, the Board's decision on the written request for a continuance was issued twenty (20) days after the request was made. In addition, the Board failed to issue a written decision that set forth its reasons for the denial of Mr. Shortess's request.
11. In its Answering Brief, New Castle County correctly states that "the IAB is empowered by the legislature to make and enforce its Rules of Procedure as may be necessary to carry out the purpose of this Chapter." The courts bind litigants who appear before the Board to compliance with the procedural rules of the Board. Likewise, this Court will hold the Board to the rules it promulgates.
Def. Ans. Br. at 5 (November 7, 2001) (citing Del. C. Ann. tit. 19 Del. C. § 2121 (1995)).
See Bethlehem Shipbuilding Corp. v. Mullen, 119 A. 314, 316 (Del. 1922) ("Ignorance of the existing rules properly and legally adopted and published by recording will not excuse a litigant before the Board from compliance with the provisions of such rules."); Smith v. Rodel, Del. Super., C.A. No. 00A-11-001, Slights, J. (June 19, 2001) (ORDER) (holding that the Board acted properly by following the procedure and remedies available pursuant to its Rule 4).
12. The purpose of the Board's Rule 12 presumably is to notify the parties promptly of the Board's decision with regard to a continuance request so that, if necessary, they may prepare their cases appropriately and make necessary arrangements to secure the presence of third-party witnesses.
13. Mr. Shortess was not afforded this opportunity by virtue of the Board's untimely ruling twenty (20) days after his written request for a continuance and seven (7) days before the scheduled hearing on the Petition. The Board's failure to follow its own Rules with respect to Mr. Shortess's request for a continuance, and its subsequent denial of the request, absent a reasonable explanation for the deviation, was legal error and constituted an abuse of the Board's discretion.
14. Because Mr. Shortess' counsel has not objected to the Board's failure to follow its own procedure regarding requests for continuances, the Court will examine the Board's decision under a plain error standard of review as well. A party who urges reversal of a decision for a reason not raised below may succeed only when there has been plain error.
This may be because counsel for Mr. Shortess has not referenced the operative rules of the Industrial Accident Board, which took effect in 1998.
Burgess v. Board of Adjustment of New Castle County, 1993 WL 258718 (Del.Super.).
15. Plain error exists when the error was "so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial process."
Bullock v. State, 775 A.2d 1043, 1047 (Del. 2001) (citation omitted).
16. The Court is satisfied that the Board committed plain error by failing to follow its procedures regarding request for continuances. Mr. Shortess was denied the ability to prepare his case by virtue of the Board's late ruling on his properly made request for a continuance. His inability to prepare clearly jeopardized the fairness and integrity of the trial process.
17. Based on the foregoing, the Board's decision on Mr. Shortess's request for a continuance is REVERSED and this matter is REMANDED to the Board for a hearing on the Petition upon appropriate notice to the parties.
IT IS SO ORDERED.