Opinion
C.A. No. 06A-04-010 RRC.
Submitted: April 17, 2007.
Decided: June 15, 2007.
On Appeal from a Decision of the Industrial Accident Board. DISMISSED.
J. R. Julian, Esquire, J. R. Julian, P.A., Wilmington, Delaware, Attorney for Employer-Below/Appellant.
Matthew M. Bartkowski, Esquire, Kimmel, Carter, Roman Peltz, P.A., Bear, Delaware, Attorney for Employee-Below/Appellee.
Dear Counsel:
Before the Court is the appeal of Standard Distributing, Inc. ("Standard") from a decision of the Industrial Accident Board ("Board") dated March 17, 2006. Because the Court finds that this appeal is interlocutory, and thus unappealable, Standard's appeal is DISMISSED.
Claimant Charles Hall was injured on May 22, 1990 while working for Standard. As a result of this incident, Hall suffered from thoracic and low back pain and underwent three lumbar surgeries. After the third surgery, Standard paid Hall up to 34% total permanent impairment. In 2003, after being referred to a psychiatrist by his treating physician, Hall petitioned the Board for additional compensation for that expense. The Board found that Hall's psychiatric treatment was causally related to the May 22, 1990 accident and compensable. Dr. Ali Kalamchi then performed a fourth lumbar surgery on November 2, 2004. Standard contested whether that fourth surgery was causally related to the May 22, 1990 accident; however the Board decided on November 2, 2005 that the surgery was causally related.
This Court and the Supreme Court affirmed that decision. Standard Distributing, Inc. v. Hall, 2005 WL 950118 (Del.Super.); Standard Distributing, Inc. v. Hall, 897 A.2d 155 (Del. 2006).
This Court affirmed the Board's decision on September 20, 2006. Standard Distributing, Inc. v. Hall, 2006 WL 2714960 (Del.Super.) (holding that the Board's decision was supported by substantial evidence and otherwise free from legal error).
On November 22, 2005, Dr. Kalamchi issued a medical report that rated Hall with a 46% permanent impairment to the lumbar spine as result of the May 22, 1990 accident and subsequent surgeries. The report also stated that Hall was "moderately disabled at present."
Appellant's Opening Brief, D.I. 6, Ex. 1.
Thereafter, on December 10, 2005, when there was no petition pending before the Board, Standard's counsel wrote to Dr. Kalamchi asking, "would you agree with me that Mr. Hall is capable of engaging in gainful employment at a sedentary level now that he is one year post lumbar surgery?" Neither Hall nor his counsel were notified of or copied on this letter. However, Hall's counsel became aware of the communication when Dr. Kalamchi replied to the letter on December 27, 2005 and sent a copy to Hall's counsel. In his response, Dr. Kalamchi stated that, in his opinion, Hall could do "at least a sedentary job."
Id. at Ex. 2.
Id. at Ex. 3.
As a result, on January 10, 2006 Hall requested an "immediate" legal hearing with the IAB seeking sanctions against Standard for the alleged improper communication, which Hall claimed violated Rule 11(D) of the Rules of the Industrial Accident Board. Rule 11(D) states that "[l]egal counsel for the insurance carrier or self-insured employers will go through the claimant's legal counsel to obtain any medical information concerning the claimant. Legal counsel for one party may speak to the opposing party's medical witnesses with the oral permission or written consent of the opposing party's legal counsel."
Rules of the Industrial Accident Board for the State of Delaware, CDR 65-400-011 (2007), Rule 11(D).
At the Board hearing, Hall requested that as a consequence of Standard's alleged violation of Rule 11(D) the Board impose sanctions, including the implementation of a fine. Hall also asked that Board preclude Standard from using Dr. Kalamchi's opinion as a basis for its upcoming petition to terminate benefits (even though at the time, Standard had not yet filed a petition to terminate). However, Standard contended that it did not violate Rule 11(D). Although Standard acknowledged writing Dr. Kalamchi without notice to Hall and implicitly conceded that Dr. Kalamchi was a claimant's medical witness, Standard maintained that Rule 11(D) only implicated "speaking" communication. Therefore, Standard asserted that its contact with Dr. Kalamchi through written means was not a violation of the Rule.
The Board issued a decision on March 17, 2006, holding that "the Board is convinced that Standard has violated the prohibition on contacting a claimant's medical witness without the appropriate consent." The Board further ordered that Standard have no further contact with Dr. Kalamchi without the appropriate consent. However, the Board did not impose any other sanctions on Standard and stated that "Standard may allege and/or use the opinion of Dr. Kalamchi in its upcoming Petition to Terminate Benefits." Even though the Board was hesitant to allow Standard to "reap the benefits of its unsavory conduct," it nevertheless decided that "the proper method to remedy the situation is to allow a full and fair hearing on the merits." Standard subsequently filed this appeal from that decision.
Hall v. Standard, IAB Hearing No. 908223 (March 17, 2006).
Id.
Id.
Id.
Hall contends that the appeal is interlocutory and therefore unappealable. Although Standard has apparently not yet filed a petition to terminate, Hall maintains that the improper communication was made "in anticipation of a termination petition."
Appellee's Supplemental Reply Brief, D.I. 15, at 4.
In response, Standard vigorously defends its conduct and contends that the Board's March 17, 2006 order was in effect a "final determination" and thus appealable pursuant to 19 Del. C. § 2349 and 2350. Standard further argues that if the Court holds that this order is interlocutory, there will be "no way for Standard to seek justice on this issue because nothing is pending."
Standard maintains that "Board Rule 11(D) only prohibits speaking to a claimant's treating doctor without oral or written consent; Rule 11(D) does not prohibit other types of communication." Appellant's Opening Brief, D.I. 6, at 11.
Appellant's Supplemental Answering Brief, D.I. 13, at 10.
This Court concludes that the instant appeal is interlocutory and thus unappealable. Pursuant to 19 Del. C. §§ 2349 and 2350, only an "award" of the IAB is appealable. Furthermore, the Supreme Court has held that "[t]he word `award' must be read as the final determination of the Board in the case. The word itself requires that connotation; and the urgency of workmen's compensation cases, as well as the improvement of judicial administration, militates against a ruling permitting fragmentation of such litigation by interim appeals." Accordingly, interlocutory orders of the Board are not appealable.
Eastburn v. Newark School District, 324 A.2d 775, 776 (Del. 1974).
Id. ("Appellate review of an interlocutory order must await appellate review of the final determination of the Board."). See also Cat Hill Water Co. v. Public Serv. Comm'n, 1991 WL 70035, at *3 (Del.Super.) (holding that "an appealable order must be case dispositive") (emphasis added). The Board's decision did not dispose of a "case."
Moreover, "[t]he general rule is that a discovery ruling is not the proper subject of an interlocutory appeal." In other words, "the substantive element of the appealability of an interlocutory order must relate to the merits of the case, not to matters of discovery." Therefore, "[o]rdinarily an order is reviewable only at the point where it awards or denies compensation."
Walden v. Georgia-Pacific Corp., 1995 WL 656810, at *2 (Del.Super.) (dismissing an employee's appeal from a decision of the Board that denied the employee's discovery requests because it was interlocutory).
Id. See also Castaldo v. Pittsburgh-Des Moines Steel Co., 301 A.2d 87 (Del. 1973) (stating that the "oft-repeated test of the appealability of an interlocutory order is that it must determine a substantial issue and establish a legal right").
8 Arthur Larson Lex K. Larson, Larson's Workers Compensation Law § 130.02 (2004)).
The Board's March 17, 2006 decision did not determine a final "award." Rather, it was a decision on a discovery matter, albeit not in connection with a pending case. The Board held that Standard violated Rule 11, which is entitled "Discovery and production of documents and things for inspection, copying, or photographing." The order provided that Standard can no longer contact Dr. Kalamchi, or any other treating physician, without the appropriate consent. There was no award or denial of compensation, nor was there any ruling on the merits of the case. Even though an actual petition to terminate has not yet been filed and may never be filed, the letter to Dr. Kalamchi was written in anticipation of a possible petition to terminate. The opinion itself even referred to Standard's "upcoming Petition to Terminate Benefits."
See King v. Allied Sys., Ltd., 2006 WL 1254815, at *1 (Del.Super.) (holding that the Board's denial of a motion to compel where a discovery request was made "in anticipation of the termination hearing" was an interlocutory order).
Standard claims that such a ruling precludes Standard from "seek[ing] justice" and that there is no "fear of fragmentation" in this case because there is no pending petition; however, "[t]here is in compensation procedure, just as in any other judicial procedure, such thing as a completely unreviewable matter, as in the case of interlocutory decisions that are unreviewable for lack of finality. . . ." Standard's appeal is interlocutory and must be dismissed.
Larson, supra note 15, at 130.02.
For the above reasons, Standard's appeal from the Board's March 17, 2006 decision is DISMISSED.