Opinion
C.A. No. 01A-03-004 RRC
Submitted: July 23, 2001
Decided: October 15, 2001
Upon Appeal from a Decision of The Industrial Accident Board. REVERSED AND REMANDED.
Harvey Bernard Rubenstein, Esquire, Attorney for Claimants.
Cassandra Faline Kaminski, Esquire, Natalie S. Wolf, Esquire, Attorneys for Employer Industrial Accident Board.
ORDER
This 15th day of October, 2001, upon consideration of the submissions of the parties, it appears to this Court that:
1. This case has a complicated procedural history. It is before this Court now on appeal from a decision rendered by the Industrial Accident Board (the "Board"). This appeal is from a second decision of the Board in this case. The Board's initial decision had denied compensation to Marvin Mullens ("Claimant") for a heart attack he had suffered while working for Worthy Construction Company ("Employer") on the ground that Claimant's heart attack would have otherwise occurred despite Claimant's work activities. Claimant appealed, and this Court affirmed the Board's decision, holding that the Board's decision to accept the testimony of Employer's expert as persuasive that Claimant would have had the heart attack regardless of his work activity was supported by substantial evidence. Claimant then appealed to the Delaware Supreme Court, which reversed this Court and remanded the case to the Board, stating:
Mullens v. Worthy Construction Co., IAB No. 1139116 (February 9, 2001) (hereinafter "IAB Decision on Remand at __").
Mullens v. Worthy Construction Co., Del. Super., C.A. No. 99A-11-005, Cooch, J. (March 28, 2000) (ORDER).
Since the parties sharply contest the meaning of the Board's decision, and whether it is the product of an orderly and logical deductive process, we conclude that we are unable to conduct an effective appella[te] review of the parties' contentions. Accordingly, this matter must be remanded to the Board for a full explanation of the reasons for its rulings. In particular, the Board should identify the differences between the opinions of [Plaintiff's expert] and [Defendant's expert] and explain fully why it opted to accept the opinion of one expert over the other. The Board should separately state its factual findings and apply those findings to any legal conclusions it makes.
Mullens v. Worthy Construction Co., Del. Supr., No. 150, 2000, Walsh, J. (October 23, 2000), Order at 2.
However, on remand to the Board, the Board prohibited both Claimant and Employer from presenting additional evidence or legal argument, but instead held that it would conduct a hearing on the record that had previously been generated. The Board then issued a decision holding that Claimant had not proved by a preponderance of the evidence that his heart attack would not have occurred but for his work activities. Claimant now appeals to this Court, contending that on remand the Board should have held a full evidentiary hearing and entertained further legal argument. For the reasons set forth below, this Court agrees, and remands this case to the Board to conduct such a hearing.
Mullens v. Worthy Construction Co., IAB No. 1139116 (December 7, 2000) (hereinafter "IAB Order Following Remand at __").
2. On January 5, 1999, Claimant suffered a heart attack while working for Employer. Prior to that date, Claimant had been diagnosed with coronary artery disease, and a lifting restriction of not more than 10 pounds had been placed upon him. At the time of the heart attack, Claimant had been engaged in emergency repair of a broken water main. That repair required Claimant to hammer a seven-foot long "probing bar" into macadam, in order to find the source of the leak; Claimant was able to do so continuously for approximately 15 minutes before suffering the attack. Claimant was then taken to Christiana Hospital, where the heart attack was diagnosed. Claimant was not permitted to return for work thereafter.
On May 12, 1999, Claimant filed a petition with the Board to determine compensation due. In the first hearing before the Board, Claimant's expert testified by deposition that although Claimant was already susceptible to a heart attack, the task that he was performing more than likely was the precipitating cause, i.e., was a "substantial factor" in bringing about Claimant's heart attack. In contrast, Employer's expert testified that Claimant would have had the heart attack regardless of the work activity he was performing, based on Claimant's predisposition to a heart attack (coronary artery disease, diabetes, smoking, and hypertension). On cross-examination, Claimant's expert, in response to the question of whether Claimant's heart attack would have occurred regardless of his work activities on January 5th, answered that Claimant was more than likely going to have a heart attack at some time but that there was no way to predict when it would happen.
Applying the "but for" test articulated in Reese v. Home Budget Center, the Board denied Claimant's petition, finding that Claimant had not proven by a preponderance of the evidence that "the heart attack would not have occurred but for his work activities on January 5, 1999."
Del. Supr., 619 A.2d 907 (1992) (holding that if a worker had a preexisting disposition to an injury not previously manifesting itself, an injury resulting from an accident is compensable if the injury would not have occurred but for the accident).
Mullens v. Worthy Construction Co., IAB No. 1139116 (October 13, 1999) ("IAB Decision on Petition to Determine Compensation Due").
Claimant then took an appeal to this Court, which found that the Industrial Accident Board's decision was supported by substantial evidence, and accordingly affirmed. Claimant then filed an appeal to the Delaware Supreme Court, which reversed this Court's decision and entered an Order remanding the case to the Board.
Mullens v. Worthy Construction Co., Del. Super., C.A. No. 99A-11-005, Cooch, J. (March 28, 2000) (ORDER).
Mullens v. Worthy Construction Co., Del. Supr., No. 150, 2000, Walsh, J. (October 23, 2000) (ORDER).
On remand, Claimant's attorney requested the opportunity to appear before the Board and present legal argument, and to present additional testimony of Claimant and his wife. Employer agreed that there should be an evidentiary hearing, and reserved the right to also present legal argument. The Board scheduled an evidentiary hearing but then cancelled it, holding in part that:
The Board is mindful that under State v. Steen, Del. Supr., 719 A.2d 930 (1998), the parties have a statutory right to participate in the hearing on remand and may present not only further legal argument but also additional evidence not previously of record. State v. Steen, Del. Supr., [citation omitted]. The fact that a matter is remanded, however, does not open the door for the parties to relitigate all issues. See Bythway v. Super Fresh Food Markets, Inc., Del. Supr., No. 297, 1998 (July 16, 1999) (ORDER). The issue(s) on remand are controlled by the court's decision. In the present case the Supreme Court's remand is clear. The Board is to explain why it chose one doctor's opinion over the other doctor's opinion. In light of the above, the Board will only address the issue remanded in this matter. The Supreme Court's directive on remand was for the Board to fully explain why it accepted [the testimony of Defendant's expert] over that of [Plaintiff's expert]. Because the Supreme Court has asked the Board to fully explain its determination, no further evidence or legal argument is necessary.
IAB Order Following Remand at 1-2.
Claimant then filed a motion to reopen the proceedings or for rehearing or for reargument. The Board denied Claimant's motion, stating that:
Claimant's Mot. in the Alternative for Reopening or for Rehearing or for Reargument and to Withdraw its Previous Decision of October 13, 1999, Mullens v. Worthy Construction Co., I.A.B No. 1139116.
Essentially, Claimant is asking the Board to do either of two things. The first would be to reconsider its Order regarding the scope of the remand and to allow witnesses to testify on remand. As the Board noted in its [Order Following Remand], the scope of the remand is controlled by the Supreme Court's directive. The Supreme Court remanded the case with explicit instructions to the Board to explain why it chose the opinion of one expert over the other. There was nothing in the Court's [O]rder indicating that the Board should consider additional testimony. Furthermore, Claimant does not direct the Board to any portion of the Court's decision that would support his contention that additional testimony should be allowed on remand. Without a clear directive from the Court, the Board is restrained from exceeding the scope of the remand.
Mullens v. Worthy Construction Co., IAB No. 1139116 (January 11, 2001) ("IAB Order").
The Board then denied Claimant's petition, finding that Claimant had not proven by a preponderance of the evidence that his heart attack would not have occurred but for his work activities [on the day Claimant suffered the heart attack]. The Board apparently denied Claimant's petition using the "but for" test articulated in Reese v. Home Budget Center; the Board utilized this formulation because Claimant had a pre-existing heart condition and because Claimant apparently argued that it was a specific work activity that caused him to have the heart attack that day. The Board believed that in order to meet his burden, Claimant would had to have shown that he would not have had the attack on that day but for his work activities, and that the testimony of Claimant's expert did not satisfy this burden. The Board stated that the Claimant's expert opined that Claimant's work activities were a "substantial factor" in causing the heart attack, and that Claimant's expert did not directly answer the question of whether the heart attack would have occurred "but for" Claimant's work activities. The Board interpreted the testimony given by Claimant's expert to be "a concession . . . that Claimant's heart attack would have occurred regardless of his work activities [on the day of the heart attack]." This second appeal by Claimant then followed.
IAB Decision on Remand.
IAB Decision on Remand at 3.
3. Claimant argues that reversal of the Board's decision is warranted on four grounds: 1) the Board incorrectly limited the parties to the record previously generated when this case was remanded to the Board by the Supreme Court; 2) the Board erred as a matter of law in applying a "but for" standard of causation instead of the "substantial factor" standard and failed to make the findings that are necessary for appropriate appellate review; 3) that even if the "but for" standard applies, Claimant met his burden of proof; and 4) the fact that Claimant's heart attack may have occurred at some time other than while working does not defeat Claimant's petition.
In rebuttal, Employer argues: 1) the Board correctly decided this case on the record previously generated when the case was remanded to the Board from the Supreme Court; 2) the Board correctly applied the "but for" standard of proximate causation and that Claimant has otherwise waived any argument that another standard applies by briefing the original petition, the appeal to the Superior Court, and the appeal to the Supreme Court using the "but for" standard; 3) the Board correctly ruled that Claimant failed to meet his burden under the "but for" standard; and 4) the Board's decision is otherwise supported by the evidence, given the medical opinions offered. Because this Court finds Claimant's argument relating to the scope of the hearing on remand to be dispositive, it will address that argument separately below, and need not reach the other issues raised by the parties.
4. Claimant argues that the Board erred by not allowing the presentation of additional testimony or legal argument. Claimant asserts that a remand to the Board in this case requires a full evidentiary hearing.
5. Employer argues that an evidentiary hearing was unnecessary in the present case because the "but for" causation standard appears to have been stipulated to by the parties and the Supreme Court Order does not specifically state that that standard was incorrect. Employer therefore argues that the Board correctly interpreted the scope of the Supreme Court Order.
6. The Court believes that the Board interpreted the Supreme Court Order remanding this case too narrowly, and that the Board should have held an evidentiary hearing and allowed further legal argument upon remand. In reaching its decision, this Court is guided by applicable sections of the Worker's Compensation Act and those Delaware cases interpreting them, together with the wording of the Supreme Court's Order remanding this case back to the Board.
19 Del. C. § 2350(b) states, in pertinent part, that "[i]n case any cause shall be remanded to the Board for a rehearing, the procedure and the rights of all parties to such cause shall be the same as in the case of the original hearing before the Board." At an original hearing, the parties have the right "to present evidence and legal argument to support their own positions and to challenge evidence or any legal argument to the contrary." On remand, "all evidence theretofore taken before the Board in a previous hearings or hearings shall become part of the evidence in the hearing upon the remand."
Steen, 719 A.2d at 934.
Thus, it appears that, on remand of a worker's compensation claim to the Board, that all evidence previously taken becomes part of the record on remand, and that the parties may augment that record by offering additional evidence or legal argument. This conclusion was explicitly recognized by the court in Steen, when it stated that "the statutory scheme for conducting a hearing on remand is unambiguous [in that the Industrial Action Board] is to decide the matter, after the remand hearing, on the basis of the evidence from the prior hearing, plus any new evidence and legal arguments the parties decide to present."
Steen, 719 A.2d at 934.
In Steen, the Superior Court, on appeal from the Industrial Accident Board, sua sponte determined that the board had applied the wrong causation standard. The court remanded with directions to apply the correct standard. Although the board reversed itself on remand in that it granted petitioner's request for compensation, it nevertheless failed to permit the parties to present either new evidence or legal argument at the hearing on remand. A second appeal resulted in the Superior Court affirming the board's decision to award claimant compensation, as well as affirming the board's decision not to permit the parties to present any new evidence or legal argument. Reversing that ruling, however, the Delaware Supreme Court found that the board had committed error in not allowing a full evidentiary hearing, and stated that "[t]he parties had a statutory right to participate in the rehearing on remand by presenting additional evidence and legal argument [in accordance with the proper causation standard]."
Steen, 719 A.2d at 935 (emphasis in original)
This court in a recent case narrowed the scope of evidence properly presentable on remand to that evidence relating to "the issue identified by [the reviewing court] as problematic." Johnson Controls, Inc. v. Haines. Johnson Controls involved a claimant who suffered lead toxicity as a result of his employment. The Industrial Accident Board awarded the claimant compensation, and the employer appealed the board's decision, alleging that it had failed to apply the correct standard of causation. The Superior Court agreed with the employer and reversed and remanded the case to the board. The board conducted its review solely on the record, and then issued an opinion in accord with its first ruling, stating that although it did not cite the correct standard, it nevertheless utilized that standard when it had analyzed and deliberated the matter. The employer appealed to the Superior Court a second time, stating that it was entitled to a new hearing on remand, and that the board's refusal to do so was error.
Del. Super., C.A. No. 98A-02-012, Gebelein, J. (October 12, 1999), Order at 2.
Citing the Steen decision, the Superior Court reversed and remanded. The court stated that on remand, the board was to hold a rehearing on the issue of causation using the proper standard of causation in cases of occupational exposure. At the rehearing, the parties were to present additional evidence and argument as to the issue of causation. On remand, the board held a hearing to determine the scope of evidence to be presented at the remand hearing. The board ruled against employer's request at that hearing to present evidence relating to issues other than causation. Employer then took an appeal to the Superior Court.
On appeal, the Superior Court determined that the board had erred when it prohibited new or additional evidence relating to causation from being offered at the remand hearing, because the issue of causation was specifically identified by the Superior Court as "problematic". The court then held that the parties were entitled to reintroduce and relitigate the issue of causation as it already existed on the record, as well as to introduce new evidence and new legal argument with respect to causation because that issue was identified by the Superior Court as "problematic".
Id.
In the case at bar, this Court views the Supreme Court Order as not narrow in its scope. It held that the Board's decision contained "rather cryptic findings and conclusions of law" and that the Board's evaluation of the medical expert testimony presented at the hearing "provide[d] scant insight into the basis for [the Board's] rejection of the claim for disability benefits." Thus, the "problematic" issues identified by the Supreme Court on review was that the Board had not adequately explained its findings and apparently had not conducted a hearing sufficient to sustain those findings when it rejected Claimant's petition. This conclusion is evident given that the Supreme Court ordered the case back to the Board for a "full" explanation of the reasons for its rulings, stating that "[t]he Board should separately state its factual findings and apply those findings to any legal conclusions it makes." The term "full explanation" in the context of the Supreme Court's Order reasonably included a proper reconsideration by the Board of the correct standard of causation to be applied. To the extent there was any uncertainty in the scope of remand, it should have been resolved by the Board in favor of allowing the Claimant to have presented additional evidence and legal argument. Steen; Johnson Controls.
Thus the proper course for the Board on remand should have been to have held an evidentiary hearing allowing the parties to supplement the existing record with any additional evidence and legal argument that the parties may have wished to advance. When the Board declined to conduct the remand proceedings on anything other than the record before it, the Board committed error. The proper remedy is for this Court to remand this case again to the Board.
Although the Board cited the Bythway decision in its Order Following Remand as authority for the proposition that not all issues previously litigated need to be relitigated on remand, the Board's reliance on that case was misplaced. That case involved the ability of a party to issue subpoenas to support challenging the accuracy of a survey of potential employers for a partially-disabled worker in a worker's compensation setting.
7. Given that this case has twice now been appealed to the Superior Court and once to the Supreme Court, this Court regrets that this case must again be remanded to the Board. On remand, the parties shall be given the opportunity to present additional evidence and legal argument to supplement the existing record, and the Board shall thereafter make appropriate findings consistent with this order and the Order of the Supreme Court.
In making its findings, the Board shall also determine the appropriate standard of causation to be applied relative to the events leading to Claimant's heart attack. The Court believes that it is inappropriate for this Court to make that determination at this juncture, since the Board has never apparently had the opportunity to consider the competing contentions of the parties about which standard to be applied. See 29 Del. C. § 10142(d) (providing that a reviewing court shall take due account of the experience and specialized competence of a fact-finding agency).
IT IS SO ORDERED.