Opinion
C.A. No. 01A-08-002 JRS
Date Submitted: January 17, 2002
Date Decided: April 11, 2002
ORDER
This 11th day of April, 2002, upon consideration of the appeal of Leonard Potts ("Mr. Potts") from the decision of the Industrial Accident Board ("the Board") dismissing Mr. Potts' Petition to Determine Compensation Due, and the parties' briefs, it appears to the Court that:
1. Mr. Potts sustained a compensable injury on July 11, 1980, while he was employed by the State of Delaware ("State") at the Emily P. Bissell Hospital.
2. In 1998, Mr. Potts agreed to a commutation of total and partial disability benefits, permanent impairment benefits, and disfigurement benefits. He received a lump sum payment of $3,500, in addition to an annuity that pays him the full amount of his total disability benefits. Under the terms of the commutation, the State is responsible for Mr. Potts' related medical bills.
3. On April 10, 2001, Mr. Potts filed a Petition to Determine Compensation ("Petition"). In his Petition, Mr. Potts asked the Board to reopen his commutation because he felt that he was taken advantage of at the prior hearing and, moreover, he is unable to meet expenses of daily living with the amounts that he receives under the commutation agreement.
4. The State filed a Motion to Dismiss Mr. Potts' Petition. After a hearing, the Board granted the State's motion to dismiss in an order dated July 5, 2001. The Board concluded that "Mr. Potts' 1988 commutation was and continues to be in his best interest" and found no basis to reopen it. It is from the Board's July 5, 2001 decision that Mr. Potts appeals.
5. In reviewing a decision of the Board, the Court must determine whether it is supported by substantial evidence and free from legal error.
Brittingham v. St. Michael's Rectory, Del. Super., C.A. No. 99A11-001, Bradley, J. (July 25, 2000) (Mem.Op.) (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del.Supr. 1965)).
6. The standard for the Board to apply when considering a motion to reopen an award is derived from Superior Court Rule 60(b) ("Rule 60(b)"). Rule 60(b) provides, in pertinent part:
Barber v. F.W. Woolworth's Co., 1996 WL 769221 (Del.Super.) at *4.
On motion and upon such terms as are just, the Court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
Super.Ct.Civ.R.60(b).
7. The Board's decision on a motion to reopen will be set aside on appeal only for an abuse of discretion.
Barber at *3.
8. The burden is on the movant to establish the basis of relief. Mr. Potts has not alleged, much less established, a specific basis to reopen the commutation agreement under any of the enumerated exceptions set forth in Rule 60(b). Nor has Mr. Potts alleged or established a basis for relief under Rule 60(b)(6), the "catch-all" provision. Under Rule 60(b)(6), one seeking relief from judgment must show "extraordinary circumstances." No such circumstances appear in the record sub judice. Accordingly, the Court is satisfied that the Board did not abuse its discretion in dismissing the Petition.
Weeks v. Wilson, Del. Supr., No. 422, 1989, Walsh, J. (May 31, 1990) (ORDER).
As the Board indicated in its July 5, 2001 Order, under the commutation agreement Mr. Potts is receiving the maximum amount that he would be entitled to recover under the Worker's Compensation Act. While it is clear from the record that Mr. Potts' injury has affected his life tremendously, the Court cannot grant relief on this basis alone. Mr. Potts must establish a basis in law to reopen the commutation agreement. He has not done so.
Jewell v. Division of Social Services, 401 A.2d 88 (Del.Supr. 1979).
The decision of the Board is AFFIRMED.
IT IS SO ORDERED.