Opinion
CA. No. 99A-10-012 RRC
Submitted: June 26, 2000.
Decided: September 18, 2000.
Upon Appeal From a Decision of the Industrial Accident Board. AFFIRMED. On Employer's Motion to Strike. Denied as MOOT.
This 18th day of September 2000, upon consideration of Employer's appeal of an October 8, 1999 decision of the Industrial Accident Board (Board) granting Employee's Petition to Determine Compensation Due, it appears to this Court that:
1. This dispute arises from a compensable work related injury sustained by Lawrence Juliano (Employee), an employee of Wayman Fire Protection, Inc. (Employer). On September 25, 1997 he had an acute exposure to a toxic substance while replacing a smoke detector at a DuPont Company site. For purposes of this opinion, it is pertinent simply to note that Employee saw several physicians who had difficulty diagnosing Employee's injury. Ultimately, on April 13, 1999 Employee's physician, Dr. Ziem, produced a report that Employee's injury resulted from toxin exposure containing chromium dioxide at the DuPont Company site on September 25, 1997.
For a full recitation of the facts, and evidence presented to the Board, refer to the Board's October 8, 1999 decision, 2-21.
Dr. Grace Ziem is a specialist in occupational medicine.
On May 10, 1999 Employee filed a Petition seeking compensation for the injury. On August 5, 1999, the Board held a hearing to consider Employer's motion to dismiss the Petition on the basis that Employee had filed a claim after the applicable statute of limitations had expired. At the hearing, Employer argued that the one-year statute of limitation contained in 19 Del. C. § 2361 (c) barred Employee's claim. In its August 9, 1999 decision, the Board found that Employee complied with the one year statute of limitation contained in § 2361(c), that the claim had been timely filed, and that the parties should be prepared to argue the case on its merits.
Board's "Order On Motion For Dismissal" of August 9, 1999.
After denying Employer's motion to dismiss, the Board held a hearing on the merits. Employee's petition for compensation was granted and the Board ruled that Employee was totally disabled.
2. The Board's decision addressed the applicability of the one year statute of limitations found in 19 Del. C. § 2361 (c). That section provides, in pertinent part that
[a]ll claims for compensation for compensable occupational disease . . . shall be forever barred unless a petition is filed . . . with the Board within 1 year after the date on which the employee first acquired such knowledge that the disability was or could have been caused or had resulted from employment.
The Board found that based on the evidence presented by Employee and several physicians who examined him, Employee filed his claim within one year of the time in which he first acquired knowledge that his injury was or could have been caused from the exposure during his employment. After already having found that the claim was timely filed with the one year statute of limitations contained in § 236 1(c), the Board then granted Employee's Petition To Determine Compensation Due.
3. Employer then filed a notice of appeal with this Court alleging that the Board's decision was erroneous. Specifically, Employer argues on appeal that the "Board erred as a matter of fact and as a matter of law in its finding that the [Employee's] petition was not barred by the applicable one year statute of limitations for an occupational disease pursuant to the provisions of 19 Del. C. § 2361 (c)." Employer contends that Employee's claim was not timely filed in accordance with the one-year time limit of 19 Del. C. § 2361 (c). Additionally, Employer asserts that Employee waived his right to argue the two-year statute of limitations in 19 Del. C. § 2361 (a) now on appeal by not having asserted it before the Board and that therefore Employee is barred from making this argument. Notably, Employer does not assert on appeal that the Board's finding was not supported by substantial evidence insofar as the two-year statute of limitations applies.
Employer's Opening Brief at 11.
Employee was represented by different counsel before the Board.
In response, Employee argues that the two-year statute of limitations contained in 19 Del. C. § 236 1(a) applies as well as does the one-year period set forth in § 2361(a). Therefore, he argues, the petition was not time-barred. Section 2361(a) provides in pertinent part that
[i]n case of personal injury, all claims for compensation shall be forever time barred unless, within 2 years after the accident, the parties have agreed upon the compensation . . . or unless, within 2 years after the accident, I or more of the interested parties have appealed to the Board as provided in § 2345 of this title.
Although he argued only the applicability of the one year statute before the Board (with the Board finding that it applied) Employee now asserts that the one-year statute of limitations in § 2361(c) acts as a "savings statute that allows a claimant with an occupational disease to bring a claim within one year of discovery of the claim even if such discovery is outside the two year statute of limitations." Employee argues that the policy behind § 2361(c) is to "expand the period of time in which a claimant could file a claim to one year 'after the employee acquires knowledge of the causal connection.'" Employee contends that he was injured at a specific time and place and the claim was filed within the two year statute of limitations contained in § 2361(a).
Employee's Answering Brief at 6.
Id. at 11.
4. On appeal, this Court is presented with two issues: (1) whether Employee has waived the right to assert the two year statute of limitations in § 2361(a) on appeal because that argument was not made by him below; and if not, (2) whether § 2361(a)'s two year statute of limitations is applicable.
5. As stated, Employer does not assert that the factual findings of the Board are not supported by substantial evidence insofar as the two-year statute of limitations may apply. This Court's duty on appeal in this case is limited to determining whether errors of law exist.
6. This Court initially holds that the Employee has not waived his right to assert the two-year statute of limitations contained in 19 Del. C. § 236 1(a) in this appeal by Employer. As the appellee, Employee is "entitled to argue any theory in support of the judgment in its favor, even if that theory was not relied upon in the decision on appeal." The Supreme Court in Tickles v. PNC Bank was faced with a similar issue when an employee appealed a decision from the Industrial Accident Board. On appeal to the Supreme Court, PNC Bank (the appellee) asserted different grounds that it had argued before in the Superior Court to sustain the Superior Court's judgment. In another case, the Supreme Court in Haley v. Town of Dewey Beach granted a motion to intervene on appeal and noted, "an appellee who does not file a cross appeal may defend the judgment with any argument that was supported by the record, even if it questions the trial court's reasoning or relies upon a precedent overlooked or disregarded by the trial court." The Supreme Court has consistently held, as Tickles and Haley demonstrate, that an appellee who is not seeking affirmative relief or seeking to enlarge his own rights may assert a different or new theory when answering an appeal. Furthermore, the Court of Chancery has also held that "an appellee may raise any defense on appeal in support of the order being appealed without raising it on cross-appeal as long as the defense does not have a view toward enlarging appellee's rights or lessening appellants rights under the decree."
Tickles v. PNC Bank, Del. Supr., 703 A.2d 633, 636 (1997) (noting that appellee's argument, asserted on appeal to the Supreme Court, was not barred merely because the appellee relied upon a different argument in Superior Court than he had before the Industrial Accident Board.)
Tickles v. PNC Bank, Del. Supr., 703 A.2d 633, 636 (1997).
Haley v. Town of Dewey Beach, Del. Supr., 672 A.2d 55, 58-59 (1996).
A teachers association appealed to the Court of Chancery from a decision rendered by the Delaware Public Employment Relations Board.
Red Clay Education Association v. Board of Education, Del. Ch., C.A. No. 11958, Chandler, V.C. (January 16, 1992)Mem. Op.) (citing Mann v. Oppenheimer Co., Del. Supr., 517 A.2d 1056, 1060 (1986) for the proposition that an appellee cannot attack the judgment of the court below with a goal to enlarge its own rights or lessen the rights of its adversary.)
This appeal from the Board's decision is similar to Tickles v. PNC and Haley v. Town of Dewey Beach since Employee is not seeking to enlarge his rights, or to lessen those of the appellant (Employer). He is merely defending the Board's decision of October 9, 1999. For this reason, appellee has not waived his right to assert the two-year statute of limitations contained in 19 Del. C. § 2361 (a) even though it was not argued below or considered by the Board.
7. This Court finds that the two-year statute of limitations contained in § 2361(a) is applicable and that Employee's claim was timely filed. Employee satisfied the two-year statute of limitations in 19 Del. C. § 2361 (a) when he filed the claim on May 10, 1999. The accident that caused Employee's injury occurred on September 25, 1997. Employee's filing of his claim on May 10, 1999 is within the two years of that date.
In so holding, this Court has not necessarily concluded that the Board committed an error of law in holding the one-year statute of limitations applied to the Claimant in lieu of the two-year statute of limitations, but this Court need not decide whether that one-year statute of limitations additionally applies.
For the reasons stated, the decision of the Board is AFFIRMED.
Employer's Motion to Strike that portion of Employee's Answering brief that argued the applicability of the two-year statute of limitations of § 2361(c) is DENIED as MOOT.
IT IS SO ORDERED.
Original to Prothonotary
cc: John J. Klusman Jr., Esquire and Susan A. List, Esquire, Attorneys for Employer Douglas R. MacGray, Esquire, Attorney for the Employee Industrial Accident Board