Opinion
C.A. No. 08A-07-006 RRC.
Submitted: April 26, 2010.
Decided: June 8, 2010.
On Pepsi Bottling Group, Inc.'s Motion for Reargument DENIED.
David C. Malatesta, Jr., Esquire, David A. Arndt, Esquire, Kent McBride, P.C., Wilmington, Delaware, Attorneys for Appellant/Employer
Jessica Lewis Welch, Esquire, Tara E. Bustard, Esquire, Doroshow, Pasquale, Krawitz Bhaya, Wilmington, Delaware, Attorneys for Appellee/Employee.
Dear Counsel:
INTRODUCTION
Before the Court is Appellant Pepsi Bottling Group, Inc.'s ("Employer's") motion for reargument of the Court's decision of March 23, 2010, which affirmed the decision of the Industrial Accident Board ("the Board") granting a continuance of a hearing to Appellee, Robin Meadow ("Employee"). Employer reargues only the portion of the Court's decision in which the Court rejected Employer's contention that the Board incorrectly had found "good cause" and "extraordinary circumstances" prior to granting Employee's request for a continuance of the hearing to a date more than 180 days after the petition was filed. This Court did not misapprehend the facts or the law in holding that the Board's decision adequately complied with 19 Del. C. § 2348(h)(2). The Board found "good cause" to grant the continuance based on the unavailability of Dr. Raisis, stated that Employee acted with "due diligence" in attempting to secure the deposition, and expressed why a "continuance rather than the use of other case management measures . . . [was] necessary in the interests of justice." Accordingly, Employer's motion for reargument is DENIED.
Employer does not address the second part of the Court's March 23, 2010 Letter Opinion, which addressed attorney's fees.
FACTS and PROCEDURAL HISTORY
As set forth fully in the Court's March 23, 2010 Letter Opinion, this appeal arose from a June 26, 2008 decision of the Board awarding worker's compensation benefits to Employee. Employer did not appeal the Board's ultimate decision awarding benefits to Employee, but argued only that the Board erred in granting a continuance to a date more than 180 days after the filing of the petition.
Pepsi Bottling Group, Inc. v. Meadow, 2010 WL 1068196, at * 1 (Del. Super.).
Id. at * 3.
"On August 28, 2009, this Court remanded the case to the Board `so that it [could] explain on the record its reasons for granting the continuance in accordance with 19 Del. C. § 2348(h).'" After being provided with a transcript of the April 3, 2008 hearing where the continuance was granted (the transcript had originally been thought to have been lost), this Court held that the Board did not abuse its discretion in granting the continuance. The Court found that the Board's decision properly found "good cause" to grant the continuance based on the unavailability of Employee's witness, Dr. Raisis, stated that Employee acted with "due diligence" in attempting to secure the deposition, and expressed why a "continuance rather than the use of other case management measures . . . [was] necessary in the interests of justice." This Court also held that the Board acted within its discretion in awarding attorneys' fees.
Id. at * 2.
Id. at * 6.
Id. at * 5-6.
Id. at * 7.
PARTIES' CONTENTIONS
Employer has filed a motion for reargument, arguing that this Court "misapprehended the facts" in affirming the Board's decision. Employer asserts that the Court erroneously stated that Employee contacted Dr. Raisis "early on" because that statement is unsupported by any evidence in the record. Employer also contends that the Court's statement that Employee made "several attempts" to contact Dr. Raisis is erroneous because no such statement was ever made to the Board.Employer also argues that there was neither "good cause" nor "extraordinary circumstances" to merit granting a continuance. Employer asserts that "extraordinary circumstances" requires "unforeseen circumstances" and because "Employee's counsel admitted that she was used to having difficulty scheduling [Dr. Raisis], this hardly falls within the definition of `unforeseen.'" Employer also contends that "good cause" requires the unavailability of a "previously scheduled" witness. Employer argues that because Dr. Raisis was not "previously scheduled," it was impossible for the Board to find "good cause."
Id.
Id.
Id.
Id.
In response, Employee argues that the Court did not misapprehend the facts. Employee argues that Dr. Raisis had been contacted "early on" because the transcript of the Board hearing reflects that Employee's counsel's "practice [was] to contact the doctor as early as [possible]." Also, Employee asserts that "several attempts" had been made to schedule Dr. Raisis's deposition because Dr. Raisis had been contacted to determine availability and any delay in communicating unavailability to Employer "was with the hope of a cancellation becoming available and the continuance not being needed."
Ans. Br. at ¶ 4 (citing Trans. of April 3, 2009 hearing at 4).
Id. at ¶ 5.
Finally, Employee argues that the Board appropriately found "good cause" and "extraordinary circumstances." Employee asserts that, pursuant to Board Rule 12(B)(1)(f), "good cause" includes "the unavailability of a medical witness whose deposition cannot be scheduled despite due and prompt diligence on the part of the requesting party." Employee also asserts that "extraordinary circumstances include situations where there are unforeseen circumstances beyond the control of the party seeking the continuance which would prevent the party from having a full and fair hearing." Employee argues that it was unforeseen that Dr. Raisis would be unavailable and that his testimony was essential for Employee to have fair hearing because he was Employee's treating physician.
Id. at 6.
Id.
Id.
DISCUSSION
The only issue before the Court is whether, pursuant to Superior Court Civil Rule 59, the Court "`misapprehended the law or facts such as would have changed the outcome of the underlying decision[]'" when it held that the Board did not abuse its discretion in granting a continuance to Employee because the Board had found "good cause" based on the unavailability of Dr. Raisis, stated that Employee acted with "due diligence" in attempting to secure the deposition, and expressed why a "continuance rather than the use of other case management measures . . . [was] necessary in the interests of justice."This Court does not find that any facts were "misapprehended" that "would have changed the outcome of the underlying decision." As noted in the March 23, 2010 Letter Opinion, the record established that Employee contacted Dr. Raisis "early on" to schedule a deposition and made "several attempts" to schedule that deposition before requesting a continuance.
Kennedy, 2006 WL 488590, at * 1.
Employer argues that the "only mention of when [Employee's] counsel may have contacted Dr. Raisis in the April 3, 2008 hearing transcript is [counsel's] statement that she emailed Employer's counsel on March 21, 2008, a mere few weeks before the scheduled hearing." Despite this assertion, the transcript indicates that Dr. Raisis was contacted "early":
Op. Br. at ¶ 2.
[Ms. Welch]: The fact of the matter is our practice to contact the doctor as early as we can. We are on the phone with First State Orthopedics and with Dr. Raisis's office probably every week. Usually, unfortunately, with Dr. Raisis there often are not deposition dates available at the time that we call.
Trans. of April 3, 2009 hearing at 4.
Although Employee's counsel may not have used the exact phrase "early on," a reasonable inference was that, based on counsel's "practice," Dr. Raisis was contacted at the outset of the case in an attempt to schedule his deposition. The Court's use of the phrase "early on" was a reasonable interpretation of the facts as set forth in the hearing transcript.
Additionally, there is evidence that "several attempts" were made to contact Dr. Raisis.
[Ms. Welch]: We are on the phone with First State Orthopedics and with Dr. Raisis's office probably every week. Usually, unfortunately, with Dr. Raisis there often are not deposition dates available at the time that we call. We usually wait for a period of time because sometimes things get cancelled. I mean quite often we will have depositions scheduled with our own office with Dr. Raisis that may mean if that hearing comes off there will be availability . . . As far as when an e-mail was sent to Mr. Malatesta, his office was called several times and there was no response. I e-mailed him on Good Friday giving him specific dates when Dr. Raisis was available; there was still no response.
Id.
Once again, this representation of facts indicates that counsel made "several attempts" to schedule Dr. Raisis's deposition. Counsel stated that Dr. Raisis was contacted and was unavailable. Counsel also stated that her office was on the phone with Dr. Raisis's office "every week." Finally, counsel stated that she called Employer's counsel several times to schedule the deposition without success. Counsel represented that she was in communication with Dr. Raisis "every week," and a reasonable inference is that counsel contacted Dr. Raisis on more than one occasion to schedule the deposition.
Finally, this Court did not misapprehend the facts or the law in holding that the Board appropriately found "good cause" and "extraordinary circumstances." As Employee correctly notes, "good cause" can mean "the unavailability of a medical witness whose deposition cannot be scheduled despite due and prompt diligence on the part of the requesting party." This is presumably the definition of "good cause" the Board applied. Although Employer is correct that Dr. Raisis was not "previously scheduled," the alternative definition of "good cause" does not require that the witness be "previously scheduled."
19 Del. Admin. C. § 1331 — 12.2.1.6. Employee states that Board Rule 12(B)(1)(f) states the definition of "good cause." This Court did not find this language in the Board Rules, but was able to locate the precise definition used by Employee in the Delaware Administrative Code.
Id.
Employee is also correct that "extraordinary circumstances" includes "any other unforeseen circumstance beyond the control of the party seeking the continuance which would prevent the party from having a full and fair hearing." It is fair to conclude that it was "unforeseen" that scheduling Dr. Raisis's deposition in this particular case would be difficult. A review of the hearing transcript indicates that Employee's counsel was often able to schedule Dr. Raisis as a result of a cancellation and that such practice was not unusual. It was most likely "unforeseen" that none of Dr. Raisis's other depositions would cancel and no other convenient time could be obtained. As stated in the March 23, 2010 Letter Opinion, Dr. Raisis was the treating physician and his testimony was necessary to ensure a "full and fair" hearing.
Id. at § 1331 — 12.2.2.4.
Employer's motion for reargument fails to demonstrate that the Court "`overlooked a precedent or legal principle that would have controlling effect, or that [it] has misapprehended the law or the facts such as would affect the outcome of the decision.'" Accordingly, Employer's motion for reargument is DENIED.
Kennedy v. Invacare, Inc., 2006 WL 488590, at * 1 (Del. Super.) (citations omitted).