Opinion
CA. No. 99A-01-008 RRC.
Submitted: June 23, 1999.
Decided: September 20, 1999.
UPON EMPLOYER'S MOTION TO AFFIRM A DECISION OF THE INDUSTRIAL ACCIDENT BOARD. GRANTED.
ORDER
Upon consideration of a Motion to Affirm filed by the State of Delaware (Employer) pursuant to Super. Ct. Civ. R. 72.1(b), it appears to the Court that:
1. Pamela Donehower (Claimant) has filed a pro se appeal of a decision of the Industrial Accident Board (Board) dated November 2, 1998 denying her Petition to Determine Compensation Due. For the reasons stated herein, Employer's Motion to Affirm is GRANTED.
2. Claimant was allegedly injured in a compensable work related accident on July 31, 1996. Claimant received lost wages from the PIP carrier (CHUBB) through January 16, 1998, when payment of wages and medical bills was terminated. Claimant attempted to collect compensation from PMA, the compensation carrier for the State of Delaware, but her requests were denied. Claimant filed a complaint with the Industrial Accident Board on May 29, 1998 seeking compensation for ongoing total disability from January 1, 1998, medical expenses, transportation expenses, medical witness fees and attorney's fees.
As of July 1998, Claimant was represented by attorney Robert P. Lobue who filed a Pre-Trial Memorandum on Claimant's behalf alleging injuries to the neck, back and left arm. Mr. Lobue subsequently withdrew and Claimant continued in this action before the Board pro se. On September 14, 1998, Claimant filed an Amended Pre-Trial Memorandum that did not allege any new injuries.
On October 19, 1998 the Board held a hearing on the Petition to Determine Compensation Due. At the hearing, Claimant attempted to have psychologist Dr. Cynthia Nigro, Ph.D., a witness listed on the Amended Pre-Trial Memorandum, testify to certain psychological injuries which Claimant believed to be a significant part of her claim. The Board sustained Employer's objection that Dr. Nigro could not testify to any psychological injuries because Employer had not been given notice of that allegation. Claimant was not permitted to have Dr. Nigro testify and her request for a continuance was denied. Thereafter, the Board denied Claimant's Petition to Determine Compensation Due.
3. Claimant filed a Motion for Reargument, Rehearing, and/or Reopening. On December 2, 1998, the Board granted Claimant's request to admit testimony by Senator Margaret Rose Henry and the Board denied Claimant's request to amend the Pre-Trial Memorandum, denied Claimant's request to admit a medical report, denied Claimant's request for additional time to take the Deposition of Dr. William Atkins and denied Claimant's request to admit a disability slip. Claimant commenced an appeal from the decision of the Board on three grounds: (a) whether the Board erred in denying Claimant's claim for lost wages and medicals by denying the testimony of Dr. Nigro with respect to Claimant's alleged psychological injury; (b) whether the Board erred in denying Claimant's request for a continuance at the time of the hearing; (c) whether the board erred in denying the claim for lost wages and medicals by placing improper emphasis on one previous injury that occurred in 1982, not 1992 as the Board reported.
4. In response to the appeal, Employer filed a Motion to Affirm pursuant to Superior Court Civil Rule 72.1 the decision of the Board. Employer contends that the Board was (1) correct in not permitting the testimony of Dr. Nigro, (2) correct in denying Claimant's for a continuance and (3) correct in considering the Claimant's previous injuries as it related to her alleged pre-existing injuries.
5. The Supreme Court and this Court repeatedly have emphasized the limited appellate review of factual findings of an administrative agency. The function of the reviewing Court is to determine whether substantial evidence supports the agency's decision. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This Court, on appeal, does not weigh the evidence, determine questions of credibility, or make its own factual findings. This Court's duty is limited to determining whether substantial evidence supports the Board's findings of fact and whether errors of law exist. As the Court performs this duty, it views the facts in a light most favorable to the prevailing party below. Furthermore, this Court will give deference to the expertise of administrative agencies and must affirm the decision of an agency even if the Court might have, in the first instance, reached an opposite conclusion.
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66-67 (1965); General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960).
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), appeal dismissed, Del. Supr. 515 A.2d 397 (1986).
Johnson at 66.
See Chudnofsky v. Edwards, Del. Supr., 208 A.2d 516, 518 (1965).
See 29 Del. C. § 10142(d); Petty v. University of Delaware, Del. Supr., 450 A.2d 392, 396 (1982); Levitt v. Bouvier, Del. Supr., 287 A.2d 671 (1972).
6. This Court finds that the Board did not abuse its discretion in refusing to hear the testimony of Dr. Nigro with respect to Claimant's psychological injuries. It is settled Delaware law that an employer must receive notice of the claims against it. The State of Delaware Industrial Accident Board Rule 9(D) states that the petitioner is to file a "complete statement of what petitioner seeks and alleges." In the original Pre-Trial Memorandum, the Claimant alleged injuries to the neck, back and left arm and did not allege any psychological injuries. In the Amended Pre-Trial Memorandum, the Claimant listed the injuries alleged "As filed" with no new allegation that a psychological injury would be part of her claim. Furthermore, as noted by Employer, Claimant did not take advantage of the opportunity in section 14 of both the original and amended pre-trial memoranda to "State Any Other Contentions Not as Yet Set Forth."
Moreover, Claimant may not argue that the listing of Dr. Nigro as a witness on the Amended Pre-Trial Memorandum constitutes notice because she failed to make this argument to the Board at the hearing. As Employer points out, an issue that was not raised in the lower court shall not be heard on appeal. This Court finds that the Board did not abuse its discretion in refusing to hear testimony of a psychological injury from Dr. Nigro and affirms its decision.
Rule 72.1; Wilmington Trust Company v. Conner, Del. Supr., 415 A.2d 773 (1980).
7. This Court finds that the Board's denial of Claimant's request for a continuance of the hearing, at the time of the hearing, was not an abuse of its discretion. Rule 12 states when a continuance by the Board shall be granted.
Once a hearing on the merits has begun, only the Board may grant a continuance should it become necessary to continue the case in order to prevent a miscarriage of justice.
As Employer points out, the Board denied a continuance because Claimant's request was a mistake of law and that Claimant had been provided an opportunity to pursue her claims as alleged in both the original and amended memoranda. Claimant was not allowed by the Board to raise claims that were not alleged in either the original or amended memorandum. Claimant's attempt to have Dr. Nigro testify about alleged psychological problems was improper. After realizing that Dr. Nigro could not testify. Claimant unsuccessfully attempted to get a continuance. This Court finds that the Board did not abuse its discretion by not granting Claimant's request for a continuance and affirms the Board's decision.
8. This Court also finds that the Board adequately considered Claimant's medical history and prior injuries in making its decision. On appeal, this Court does not weigh the evidence, determine questions of credibility, or make its own factual findings. This Court's duty is limited to determining whether substantial evidence supports the Board's findings of fact and whether errors of law exist. As Employer states correctly, findings made by a trier of fact which are supported by the record should be accepted even if the reviewing Court acting independently would reach a contrary conclusion.
Johnson v. Chrysler Corp., 213 A.2d at 66.
H H Poultry v. Whaley, Del. Supr., 408 A.2d 289, 291 (1979).
This Court finds there is substantial evidence to show that the Board did not abuse its discretion in denying Claimant's petition for lost wages and medical expenses. The Board considered many issues with respect to Claimant's injuries. In its decision the Board considered the following:
Claimant's medical history including, in 1970 and 1986 chiropractic treatments to her neck and beck. In 1992, she suffered a cervical spine injury in a fall from a horse. Claimant also suffered cervical spine and head beatings inflicted by her husband. Claimant had other conditions that resulted in surgeries, neuromas of both feet and a cholecystectomy. She is recovering from alcoholism, seven and 1/2 years."
Bd. Dec. at 6.
The Board also considered the fact that "[c]laimant has a history of neck and back problems dating back a number of years" and that "[c]laimant has had significant stressors in her life." This Court is satisfied that the Board considered all of the relevant evidence in making its decision and affirms its decision.
Id. at 7.
9. On appeal, the Court may grant a motion to affirm if:
. . . it is manifest on the face of appellant's brief that the appeal is without merit because . . . the issue on appeal is clearly controlled by Delaware law . . . [or] the issue on appeal from a commission or board is factual and clearly there is substantial evidence to support the findings of fact below; . . .
Super. Ct. Civ. R. 72.1. The Court finds that it is manifest on the face of Appellant's Opening Brief that the appeal is without merit because the Board's findings are supported by substantial evidence. The Board otherwise committed no error of law. Employer's Motion to Affirm is GRANTED.
IT IS SO ORDERED.