Opinion
C.A. No. 99A-05-002 WTQ.
Date Submitted: November 29, 1999. Supplemental Submissions Ordered: January 18, 2000.
Date Decided: February 24, 2000.
Letter Opinion and Order on Appellee/Employer American Original Foods Corporation's Motion to Affirm Pursuant to Rule 72.1 Following Supplemental Submissions — MOTION GRANTED
R. Scott Kappes, Esquire Schmittinger Rodriguez, P.A. 1300 N. Market Street, Suite 205 Wilmington, DE 19801
Erik C. Grandell, Esquire Heckler Frabizzio Durstein Mellon Bank Center, Suite 1300 P.O. Box 128 Wilmington DE 19899
Gentlemen:
This is the Court's Letter Opinion and Order on American Original Foods Corporation's Motion to Affirm following this Court's request for further submissions. For the reasons stated herein, the Motion to Affirm is GRANTED.
FACTS
Martina White-Cannon ("Cannon") filed a claim for total disability benefits with the Industrial Accident Board ("IAB") seeking recovery for continued pain that she claims she has suffered as a result of an injury she sustained in 1985 while working for the Appellee. The IAB was asked to determine whether Cannon was totally disabled from a medical standpoint between May 2, 1997 and October 12, 1998 (the full span of her treatment with one Dr. LaTourette). The IAB held that Cannon did not meet her burden of proving that her pain was of such severity as to render her totally disabled during that time period. Cannon then appealed to this Court, claiming that the Board was in error for not awarding her total disability benefits for at least the time periods that she was hospitalized for between May 2, 1997 and October 12, 1998. The Employer then filed a Motion to Affirm, claiming that Cannon's appeal was clearly without merit. This Court issued a Letter Opinion on January 18, 2000 which held that "the record as a whole reflects virtually no argument by Cannon [before the IAB] that she should be compensated as totally disabled for the limited periods of time that she remained hospitalized." White-Cannon v. American Original Foods Corp., Del. Super., C.A. No. 99A-05-002, Quillen, J. (Jan. 18, 2000) (Let. Op. at 4). This Court further held:
A more detailed factual background was given in an earlier Opinion in this case. White-Cannon v. American Original Foods Corp., Del. Super., C.A. No. 99A-05-002, Quillen, J. (Jan. 18, 2000)
It does not seem to the Court that the Appellant Cannon should be entitled to a further hearing before the IAB to supply evidence as to the dates which would attach to any lesser included claim. If there is no evidence to support those dates in the present record, then it seems to me that the employer has a valid argument, i.e. the Claimant went before the Board on an all or nothing basis for the entire period of Dr. LaTourette's treatment and lost without pursuing or supplying an evidentiary basis for a lesser included claim.Id. at 5.
This Court then allowed both parties to submit a supplemental letter detailing and setting forth the dates of disability from the present record for what might be called the lesser included claim. This is the Court's Letter Opinion on the "lesser included" issues after the submission of the supplemental papers.
DECISION
After review of the supplemental submissions, the Court holds that there was not an evidentiary basis before the IAB sufficient to award recovery for the lesser included claims of recovery for intermittent hospital stays. Cannon's supplemental submission points out that there is evidence in the record of four hospital stays while she was under the care of Dr. LaTourette. As for the first stay in the hospital, Cannon admits that the date of the stay does not appear in the record. It appears that the hospital stay occurred between January 19, 1998 and January 29, 1998. There is no information in the record indicating the length of the hospital stay or duration of her recovery period. Certainly the Board could not award limited total recovery benefits speculatively without any evidence as to the length of the hospital stay or the recovery period.
As for the second hospital stay, the record reflects that it occurred on May 1, 1998. And, the record also reflects that the morphine pump trial for which Cannon was hospitalized lasted only for a period of 24 hours. There is no testimony, however, as to how long it took to have the temporary pump implanted. The record simply reflects that the pump was on for a period of 24 hours. (LaTourette Dep. at 77). Additionally, there is insufficient record evidence as to whether Cannon was disabled because of the trial pump or for the length of time she was disabled, if at all. It is certainly possible that this was a minor procedure that could have been (and might have been) accomplished as a short outpatient surgery with a local anesthetic. From the record, we simply do not know.
In fact, her doctor testified that she obtained "good relief during the time the morphine was in the intra-thecal space." Id.
As for the third hospital stay, there is some discrepancy about the date that Cannon was admitted for the implantation of the morphine pump, but it appears that it occurred in early July. Nevertheless, the record does not show any dates of discharge or a recovery period after her stay where Cannon was totally disabled.
As to the fourth hospital stay, Cannon admits there is no exact testimony in the record as to the length or duration of her hospital stay or recovery period. She argues: "Dr. LaTourette could not recall the exact number of days Cannon was in the hospital but testified that it was `several.'" Cannon argues that the hospitalization was for a "minimum of three days, however, the recuperative period was much longer." The evidence provided simply does not support Cannon's argument that she is entitled to recovery for total disability benefits for hospitalization when that claim was not argued before the Board.
Cannon tacitly admits as much. She states: "[i]t is regrettable that some of the fine distinctions regarding the recuperative periods from the various hospitalizations were not further explored." Cannon then argues that there is not always time to explore the "fine distinctions and exacting testimony" in a Board proceeding. But, the fact is that the "lesser included" claims for total disability for hospitalization were not brought up before the Board. Cannon only points to one place in the entire record where anyone states that she was totally disabled during her hospital stays, and that was a passing remark in closing statements by her attorney' at the IAB. The Board cannot make speculative guesses concerning the length and duration of hospital stays and recovery periods. Cannon took a chance by seeking total disability for the entire time period and not seeking the lesser included claim. It really does not matter whether this gamble was a calculated strategy to get a higher award or an inadvertent mistake in the heat of battle. Cannon should have brought all of her claims for relief before the Board, but she did not. In short, Cannon cannot introduce her claims of total disability' for intermittent hospitalization for the first time on appeal.
Cannon's attorney stated before the IAB that "[w]hen [the spinal cord stimulator] was first implanted, they had an infection, and she went into the hospital. She was certainly totally disabled while that process is going on." (Bd. Tr. 149).
CONCLUSION
For the foregoing reasons, the Appellee/Employer American Original Foods Corporation's Motion to Affirm Pursuant to Rule 72.1 following supplemental submissions is GRANTED. IT IS SO ORDERED.
Sincerely,
William T. Quillen