Opinion
C.A. No. SN09A-09-006 DCS.
Submitted: December 29, 2009.
Decided: March 5, 2010.
On Appeal from the Industrial Accident Board of the State of Delaware In and For New Castle County. Affirmed in Part Remanded in Part for Further Proceedings on the Record.
Lawrance Spiller Kimmel, Esquire, Newark, Delaware, Attorney for Appellant Sharon Briscoe.
H. Garrett Baker, Esquire, Wilmington, Delaware, Attorney for Appellee PNC Bank Corp.
OPINION
Introduction
Appellant Sharon Briscoe, ("Briscoe"), has petitioned this Court for review of a decision of the Industrial Accident Board, (the "Board") wherein it determined that insufficient evidence existed to show that Briscoe suffered a compensable permanent impairment when she fell at work. Briscoe is not appealing the Board's decision as to her permanent impairment but is appealing the Board's decision to disregard her claim for medical expenses and associated attorneys and expert fees. Therefore, the Board's decision as to impairment is hereby affirmed.
On the other hand, the Court finds that the Board's decision to disregard Briscoe's claim for medical expenses and associated attorneys and expert fees is not supported by substantial evidence. Therefore, for the reasons discussed below, the Court remands the case back to the Board for specific factual findings as to the issue regarding outstanding medical expenses and related fees.
Factual and Procedural Background
On January 22, 2007, Briscoe fell at the bank where she worked as a teller and suffered a compensable work-related accident. On January 15, 2009, she filed a petition to determine additional compensation due with the Industrial Accident Board alleging permanent impairments to her spine and left knee as a result of injuries sustained in the accident. Briscoe also claimed that she was due medical expenses totaling $1,338.77 as well as attorneys and expert fees.
The Board heard the matter on July 2, 2009. At the hearing, Briscoe's attorney stated that the issues before the Board were the permanency of impairment and two outstanding medical bills which were included in the evidence — two from Christiana Care totaling $581 and one from Palmer Chiropractic in the amount of $757.77. Briscoe's medical expert, who rated her permanent impairment, testified via deposition that in his opinion the outstanding medical expenses were reasonable, necessary and causally related to the work injury.
T. 1, 2, 34, 52.
Decision on Petition to Determine Additional Compensation Due, 9.
At the end of the hearing, the Board inquired, "Counsel, I want to ask you both do we have an issue of two things I want to ask. One there is no objection to the medical bills the medical bills are off the table?" Counsel for the Employer answered, "No."
The second question asked by the Board involved whether the claim for disfigurement had been withdrawn, and counsel for Briscoe replied that it had. T. 63.
On August 27, 2009, the Board denied Briscoe's petition for additional compensation finding that Briscoe's permanent impairment did not result from the work-related accident and that the condition of her left knee did not warrant a permanent impairment rating. Furthermore, the Board stated in its decision, at Footnote No. 1, that it had been "advised that the outstanding medical bills were no longer at issue." Without further ascertaining whether "the outstanding medical bills . . . issue" concerned the bills per se or instead concerned the amount or payment of said bills, the Board denied an award for these bills or for any associated attorneys and expert fees.
Briscoe has timely petitioned the Court to overturn the Board's decision to disregard her claim for medical expenses, and briefing is complete.
Contentions of the Parties
Briscoe asserts that the Board's decision to disregard her claims for medical expenses, expert witness fees, and attorneys' fees is not supported by substantial evidence and should be reversed because she made her claim for relief and presented evidence demonstrating her entitlement to relief. Briscoe further contends that the medical bills were not "off the table," that the Employer contested the medical bills, and that no contradictory testimony was presented as to the bills.
The Employer sets forth three contentions: that the medical bills were "off the table" because Briscoe did not sufficiently advise the Board that an award was needed regarding these bills and, as a result, the issue is not preserved for appeal; that if a misunderstanding by the Board did occur, the correct avenue for recourse would be for Briscoe to file a motion for reargument, not an appeal; and that even if an appeal is permitted, the Court does not have the authority to determine an award.
Standard of Review
The Court reviews the Board's decision to determine if substantial evidence exists in the record to support the Board's findings of fact and to determine if the Board erred in its application of the law. Substantial evidence consists of "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Substantial evidence is "more than a scintilla but less than a preponderance of the evidence."
Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998); Shively v. Allied Systems, Ltd., 2010 WL 537734, *9 (Del. Super. 2010).
Anchor Motor Freight, 716 A.2d at 156; Shively, 2010 WL 537734 at *9.
Kiefer v. Nanticoke Health Services, Inc., 2009 WL 2568327, *1 (Del. 2009); Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
Thus, the Court, in its review of the Board's decision, does not weigh the evidence or make factual findings but only determines if substantial evidence existed upon which the Board's factual findings could be legally supported. The Court shall not overturn the factual findings of the Board except where no substantial evidence exists to sustain the findings.
Day Zimmerman Sec. v. Simmons, 965 A.2d 652, 656 (Del. 2008).
Bustos v. Castle Const. of Delaware, Inc., 2005 WL 2249762, *2 (Del. Super. 2005).
The Court reviews questions of law de novo. "If the Court determines that the record is insufficient for its review, it shall remand the case to the agency for further proceedings on the record." Upon remand, the Board shall make a decision based on evidence from the initial hearing and, if necessary, additional evidence and legal argument presented at a remand hearing.
Anchor Motor Freight, 716 A.2d at 156; Shively, 2010 WL 537734 at *9.
29 Del.C. § 10142.
Bass v. Matlack, Inc., 2000 WL 710092, *1 (Del. Super. 2000).
Discussion
Generally, a motion for reargument is the avenue by which a party may request reconsideration of a Board's factual findings, conclusions of law, or judgment so as to correct any errors before appeal. However, if the Board's order is final, a party may properly request review of an issue upon motion for reargument or upon appeal.
Green v. ConAgra Poultry Co., 2007 WL 2319146, *3 (Del. Super. 2007).
See Klein v. Cargill, Inc., 477 A.2d 710, 712 (Del. 1984); Simmons v. Delaware State Hosp., 1993 WL 562185, *3 (Del. Super. 1993).
If an issue is not raised at the hearing before the Board, it is waived for appeal. A moving party must seek and demonstrate entitlement to relief in order for the Board to grant such relief. It is proper for the Court to remand an appeal back to the Board for determination on an issue that the Board failed to address.
Standard Distributing, Inc. v. Hall, 2005 WL 950118, *2 (Del. Super. 2005).
Walt v. Delaware Home Hosp. for Chronically Ill, 2007 WL 546529, *4 (Del. Super.).
See Guy v. State, 1996 WL 283591, *1 (Del. 1996).
In the matter before the Court, Briscoe is appealing the decision of the Board because the Board did not make a determination as to her outstanding medical expenses. Although the Board began an inquiry of the issue, it failed to reach a conclusion regarding the Employer's response or the evidence presented. Therefore, Briscoe can seek either reargument or appeal to the Court.
According to the record, Briscoe formally petitioned the Board for payment of her outstanding medical expenses. Briscoe also informed the Board of her petition for payment of medical expenses in her pre-trial statement. In addition, Briscoe's counsel requested outstanding medical expenses at the Board hearing during opening and closing statements. Furthermore, Briscoe's expert testified that the outstanding medical expenses were reasonable and necessary and causally related to the work injury. And, finally, copies of the invoices from the medical providers were included in the evidence before the Board.
Consequently, since the claims for outstanding medical expenses were brought to the Board's attention at least seven times — twice prior to the hearing in the petition and pre-trial documentation, at least four times during the hearing, and in the evidentiary materials — the Court finds that Briscoe sufficiently raised the issue so as to preserve it for appeal.
The Employer asserts that Briscoe only made casual mention of the claims for medical expenses and cites Feralloy Industries v. Wilson to show that Briscoe's claim was insufficient to be preserved for appeal. In Feralloy, the Court found that the casual mention of a statute of limitations defense made in a defendant's closing argument was insufficient to preserve the issue for appeal — no mention of an affirmative defense was made either in the answer or in the pre-trial memorandum. Feralloy, however, is distinguishable from the matter before this Court. Here, Briscoe raised her claims for outstanding medical expenses three different ways — in her petition to the Board, in her pre-trial statement, and during her evidentiary presentation at the hearing. In Ferraloy, on the other hand, the defendant merely mentioned the statute of limitations defense in closing argument.
1998 WL 442937, *3 (Del. Super.).
1998 WL 442937, *3.
The Employer also argues that since Briscoe did not verbally respond to the Board's final question as to whether the medical expenses were "off the table," she did not successfully preserve the issue for appeal. However, the Board's question was compound and ambiguous; moreover, the answer given by the Employer did not remove the issue from the Board's consideration.
The Board stated, "Counsel, I want to ask you both do we have an issue of two things I want to ask. One there is no objection to the medical bills the medical bills are off the table?" Counsel for the Employer answered, "No." The Board's request for information consisted of a statement and a question: (1) that the medical bills were uncontested, and (2) whether the medical expenses were "off the table?" The Employer's "no" could be construed as an indication that the issue of medical expenses was uncontested but that the amount of medical expenses remains an issue and/or that the Employer had not agreed to any demand for payment of the medical expenses, and, thus, the issue per se was still "on the table." The Employer did not further clarify or elaborate, and the Board made no further comment about this. As such, the matters of medical bills and the amount were preserved; it would not have been necessary for Briscoe to respond. In any event, a "no" answer from the Employer to either portion of the Board's comment would still require a determination from the Board.
The Employer further asserts that the Board's disregard of the outstanding medical expenses indicated a finding that the expenses were unrelated to Briscoe's compensable work-related injury and as such should not be awarded. The Court finds, under the circumstances, that the Board did not make a determination concerning whether they were related.
Thus, it is the Court's finding that Briscoe made her claim, presented her evidence, and preserved her appeal. The Court will not assume or speculate as to what the Board might have meant by its ambiguity and inaction in this matter. Therefore, the matter must be remanded to the Board for further factual findings.
See Guy, 1996 WL 283591 at *1.
For these reasons, the Court finds that no substantial evidence exists to support the Board's decision to disregard Briscoe's claims for medical expenses and attorneys and expert fees.
Furthermore, since the Court finds that Briscoe's claims should be addressed by the Board, the Court does not reach any other issues.
See, e.g. Hamm v. City of Wilmington Zoning Bd. of Adjustment, 2010 WL 547413, *5 (Del. Super.).
Accordingly, given that the record is factually insufficient regarding the Board's disregard of Briscoe's claims for medical expenses, the claims themselves, the related expert and attorneys fees, and objections to the claims by the Employer, the decision of the Board is REMANDED for further proceedings on the record in order for the Board to make further factual findings and to make a determination regarding Briscoe's medical expenses and fees.
Furthermore, since the Board's determination that insufficient evidence exists to show that Briscoe suffered a compensable permanent impairment has not specifically been challenged, that portion of the determination is hereby AFFIRMED. IT IS SO ORDERED.