Opinion
C.A. No. 99C-10-016
Date Submitted: December 15, 2000
Date Decided: March 30, 2001
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
GRANTED
MEMORANDUM OPINION
On this 30th day of March, 2001, upon consideration of Phineas Yoder's ("Plaintiff") Motion for Summary Judgment, it appears to the Court that:
FACTS
On February 2, 1999 the Industrial Accident Board ("Board") issued its decision awarding Plaintiff workers compensation benefits for a compensable injury. The Board awarded Plaintiff 15% permanent impairment, medical expenses and medical witness fees. Delmarva Warehouse ("Defendant") appealed the award on March 3, 1999. On August 26, 1999 Superior Court affirmed the Board's decision. Defendant did not appeal the Superior Court decision.
On August 30, 1999 Plaintiff made a demand for payment from Defendant providing the amounts owed pursuant to the Board's award. Plaintiff filed this action on October 1, 1999 because Defendant had not paid the amount owed. Subsequently, on October 7, 1999 Defendant paid the $14,220 permanency award. On November 8, 1999 Defendant paid $2,530 for the medical expert witness fee. However, Defendant did not pay the medical expenses until January 22, 2001.
STANDARD OF REVIEW
The Court may grant summary judgment when the moving party has shown that there are no genuine issues of material fact and that he/she is entitled to judgment as a matter of law. In considering a Motion for Summary Judgment, the Court must weigh the facts in the light most favorable to the non-moving party.
Moore v. Sizemore, Del. Supr., 405 A.2d 679 (1979).
Id.
DISCUSSION
On December 15, 2000 the parties presented their oral arguments to the Court. Plaintiff argues that there is no support for the proposition that the award was not due, final, or otherwise unenforceable until after the time for an appeal to the Supreme Court had run. Instead, Plaintiff argues, the award was due and owing as of March 4, 1999. Plaintiff contends that the purpose of the 30 day default period set forth in 19 Del. C. § 2357 is to provide the employer the opportunity to decide whether or not to file an appeal. Plaintiff asserts that pursuant to the statute, either the employer must pay the award within 30 days or file an appeal.Defendant argues that the Board's decision was not final until the appeal period had run, i.e., 30 days after Superior Court's August 26, 1999 decision. As such, Defendant argues, the award was not due and owing when Plaintiff made the demand for payment. Defendant argues Plaintiff's demand was therefore invalid and that Defendant is not subject to the statutory penalties. Defendant argues that Curry v. State supports its proposition. Defendant contends Plaintiff's Huffman action is invalid because he failed to make a valid demand.
Curry v. State, Del. Super., C.A. 82C-JN-43, O'Hara, J. (Jul. 22, 1983) (Let. Op.).
Huffinan v. Oliphant, Del. Supr., 432 A.2d 1207 (1981).
(4) Section 19 Del. C. § 2349 of Title 19 provides in pertinent that "[a]n award of the Board. shall be final and conclusive.., unless within 30 days after a copy thereof has been sent to the parties either party appeals to the Superior Court. . . ." Industrial Accident Board Rule 20(B) provides in pertinent part that "[w]hen an award has been made by the Board, the first payment of compensation shall be drawn to the claimant's order but not later than seven (7) days after the appeal period has run. . . ." Title 19 Del. C. § 2349 specifically provides for an appeal to Superior Court. No section in title 19 provides specifically for appeals of Superior Court decisions to Supreme Court. However, IAB Rule 20(B) does not designate the court to which the appeal period is running, but simply states "after the appeal period has run."
The Court finds that the Board's decision became final and the section 2357 default period began to run seven (7) days after the expiration of the appeal period to Supreme Court. Section 2357 provides for damages "after demand in the payment of any amount due. . . ." (emphasis added) In addition Industrial Accident Board Rule 20(B) provides that the first payment of an award is due "not later than seven (7) days after the appeal period has run." Although not specifically provided for in Title 19, on appeal from a Superior Court decision, the Supreme Court will determine whether there is substantial evidence to support the Board's findings. An appeal from a Superior Court's decision to the Supreme Court is provided for in 19 Del. C. § 10142. Thus, if a Superior Court decision is appealed an award is not final until a decision is rendered by the Supreme Court. Therefore, the Board's decision cannot be final and conclusive until the time for an appeal expires. As this Court found in Cunningham v. Acro Extrusion Corp., it appears that "Rule 20(B) grants the employer time to determine whether an appeal will be taken and if one is not, requires the employer to pay no later than seven (7) days after the expiration of the appeal period."
See Waters v. The Medical Center of Delaware, Inc., Del. Supr., No. 181, 1996, berger, J. (Aug. 30, 1996) (ORDER); 19 Del. C. § 10142(d).
See Cunningham v. Acro Extrusion Corp., Del. Super., C.A. No. 98C-05-167, Alford, J. (Feb. 28, 2001) (Mem. Op.)
Id.
Contrary to Defendant's argument, the Court finds that Plaintiff was not required to make another demand for payment once the appeal period expired in order to start the clock running pursuant to Section 2357. Faced with a similar circumstance recently in Cunningham this Court held that in a case where a demand is made before the expiration of the appeal period, the default period starts seven (7) days after the expiration of the appeal period without requiring a second demand. When a claimant makes a demand for payment the employer is put on notice that prompt payment of the award is expected. The Court finds that to require that Plaintiff make a second demand would be contrary to the philosophy of workers' compensation law which advocates for an injured employee "a prompt and sure means of receiving compensation and medical care without subjecting himself to the hazards and delays of a lawsuit."
See Id.
Id. (citations omitted).
Therefore, the Court finds that the time for taking an appeal began to run on August 27, 1999; the award was "due" not later than October 6, 1999, seven days after the appeal period ran; and therefore the 30 day default period pursuant to Section 2357 expired on November 5, 1999. Thus, the Court finds that Plaintiff is entitled to damages as provided by Sections 2357 and 1103 from November 5, 1999 to the date on which payment of the award was made. Accordingly, damages are to be accessed against the medical expert fee and medical expenses only, since the permanency award was paid on October 7, 1999.
For the forgoing reasons, Plaintiff's Motion for Summary Judgment is hereby GRANTED. Counsel shall confer and submit a form of final order in accordance with this decision within ten (10) days.
IT IS SO ORDERED.