Opinion
C.A. No. 01A-05-003-RSG
Submitted: January 9, 2002
Decided: February 5, 2002
Upon Appellant's Motion for Reargument. Motion Denied.
Matthew M. Bartkowski, Esq., Kimmel Carter Roman Peltz, Wilmington, Delaware, for Employee-Appellant.
Maria Paris Newill, Esq., Wilmington, Delaware, for Employer-Appellee.
MEMORANDUM OPINION
American International Group ("Appellee") has filed a motion for reargument of this Court's opinion dated January 2, 2002, which reversed the Industrial Accident Board ("Board")'s decision to deny Edith Virginia Wessells ("Appellant") compensation for her shoulder injury on grounds that it is not supported by substantial evidence. Appellant opposes that motion. For the reasons below, the Court declines to grant reargument.
The Court's role on appellate review of a decision of the Board is to correct errors of law and to determine whether or not substantial evidence exists in the record to support the Board's findings of fact and conclusions of law. Generally, a motion for reargument will not be granted unless it appears that there is some decision or some principle of law which would have a controlling effect and which has been overlooked or there has been a misapprehension of the law or of the facts that would change the outcome of the decision. The motion is not designed to accommodate a reargument of matters which were previously considered and determined.
56 Am.Jur.2d Motions 27 (1971).
Red Mill Farms Property Owners Ass'n, Inc. v. County Council of Sussex County, Del.Ch., C.A. No. 941-S, Longobardi, V.C. (February 17, 1984).
Appellee contends that the Court's reasoning in its previous decision is flawed because all expert testimony was not to the effect that the shoulder was improving until the fall as asserted by the Court, and that Appellant had significant pre-existing right shoulder problems for which she treated years ago and was actively treating beginning July 1999 which is well before the work accident. Appellee argues that even though Appellant did not require physical therapy treatment until after the work accident as pointed out by the Court, the Court disregarded the fact that such treatment was not contemporaneous with the happening in the work accident. Appellee asserts that in making its decision, the Court weighed evidence, determined credibility, and made factual findings and conclusions, which a reviewing court does not have the authority to do. Appellee requests that a reconsideration/reargument of the Court's January 2, 2002 decision be granted, and that the Industrial Accident Board decision of 4/27/01 be affirmed.
Appellant maintains that the Court correctly applied all relevant legal principles in its January 2, 2002 decision. Also that the Court did not err in finding that all of the expert testimony was to the effect that Appellant's right shoulder was improving until the time of fall, and that the first time that the Appellant was prescribed physical therapy for her right shoulder was following the work accident. Perhaps the reason for it not being contemporaneous with the fall was that during the interim between the October 1999 work accident and the physical therapy, Appellant had surgery on her right elbow. Therefore, Appellee's motion for reargument should be denied.
It is a generally held principle that no grounds for reargument are present when the moving party is only advancing matters already considered and resolved by the Court. Appellee has not directed the Court to any facts which were not already taken into consideration nor has Appellee advised the Court as to any misunderstanding on its part of the law on the issue. Appellee has merely reiterated its earlier arguments and has not demonstrated a viable ground for reargument. There exists no reason for reargument as the issue of Appellant's shoulder injury has been fully considered.
60 C.J.S. Motions Orders § 40 (1969).
The Court also finds after reconsideration that the Board's credibility determination does not provide unassailable grounds for its decision. Although the general rule on credibility is that this Court defers to the Board's rulings, this rule falls when the testimony is given by deposition, since the rule is founded on the assumption that the Board sees and hears the witnesses.
Children's Bureau v. Nissen, 29 A.2d 603, 609 (Del.Super. 1942). The Court held that the reason for the rule, generally observed by reviewing courts, is that the trial court sees and hears the witnesses, and is better able to determine the credit and weight to be given their testimony. The reason falls when the testimony is not presented orally.
In the case at bar, Dr. Hocutt (for the Appellant) and Dr. Gerr (for the Appellee) both testified by way of deposition. Therefore, the Board did not have the opportunity to observe the demeanor of these witnesses, and the Court is within its authority to determine witness credibility.
CONCLUSION
For the above reasons, Appellee's motion for reargument is DENIED.
IT IS SO ORDERED.