Opinion
C.A. No: 99A-09-006-RSG
Date submitted: October 15, 1999
Date decided: November 18, 1999 Order Granted: February 8, 2000
Upon Appellee's Motion to Dismiss: GRANTED.
ORDER
Upon review of the record in this case and the Motion to Dismiss filed by Appellee Gertrude Lawrence ("Claimant"), it appears to this Court that:
1. On November 18, 1996, Appellant Bureau for the Visually Impaired ("Employer") filed a petition to terminate Claimant's workers' compensation benefits for the occupational illness that Claimant sustained while employed by Employer.
For a more thorough resuscitation of the facts, see Bureau for the Visually Impaired v. Lawrence, Del. Super., C.A. No. 97A-11-001, Gebelein, J. (March 15, 1999).
2. On August 7, 1997, the Industrial Accident Board ("Board") denied Employer's petition and ordered Employer to pay attorney's fees and medical witness fees, and to reimburse the Second Injury Fund for benefits paid to Claimant.
3. On November 3, 1997, Employer appealed the Board's decision to this Court claiming that the Board erred as a matter of law and fact in finding that Claimant was a prima facie displaced worker. Employer also claimed that the Board erred in concluding that Employer failed to establish the availability of regular employment within Claimant's capabilities. On March 15, 1999, this Court issued an Opinion and Order affirming the Board's decision.
Bureau for the Visually Impaired v. Lawrence, Del. Super., C.A. No. 97A-11-001, Gebelein, J. (March 15, 1999).
4. On July 2, 1999, Claimant, having prevailed in successfully opposing Employer's appeal, filed an application for attorney's fees for appellate work performed in this Court. Attorney's fees were awarded to Claimant on November 18, 1999.
Bureau for the Visually Impaired v. Lawrence, Del. Super., C.A. No. 97A-11-001, Gebelein, J. (November 18, 1999).
5. This appeal was filed by Employer on September 21, 1999 based on a separate matter. Employer appeals an August 26, 1999 decision by the Board which compelled Employer to abide by the original Board. order and make payments pursuant to that order. In addition, the Board ordered Employer to pay Claimant $500 in attorney's fees as a result of having to attend two legal hearings. Employer argues that Employer cannot be compelled to make payment under the original Board order while there is an application for attorney's fees currently pending in this Court.
This decision by the Board arose after three legal hearings regarding Employer's failure to pay Claimant according to the Board orders. Specifically, Claimant requested that Employer be compelled to pay attorney's fees, medical witness fee, reimbursement to the Workers' Compensation Fund and legal interest on the compensation. Claimant also requested that Employer be ordered to abide by a stipulation which would compel the insurance carrier to promptly pay for Claimant's hand cremes.
6. Claimant's Motion to Dismiss correctly states that the Board's ruling on the merits in the original underlying decision was affirmed by the Superior Court and there is no present Supreme Court appeal pending. There is nothing pending on appeal to prohibit Employer's compliance with the original Board award.
Based on the foregoing reasons, Appellee's Motion to Dismiss is GRANTED.
IT IS SO ORDERED.