Opinion
C.A. No. 00A-03-013 WCC.
Submitted: June 19, 2000.
Decided: September 29, 2000.
James J. Hanley, Deputy Attorney General, Carvel State Office Building, 820 N. French Street, 6th Floor, Wilmington, DE 19801. Attorney for Appellant.
Shakuntla L. Bhaya, Esquire, 1202 Kirkwood Highway, Wilmington, DE 19805. Attorney for Robert G. Lewis.
Anthony M. Frabizzio, Esquire, 919 N. Market Street, 1399 Mellon Bank Center, Wilmington, DE 19801. Attorney for Double S Associates.
Motion to Affirm Decision of Industrial Accident Board — DENIEDORDER
This 29th day of September, 2000, after considering Double S Associate's ("Double S") Motion to Affirm the decision of the Industrial Accident Board (the "Board"), it appears that:
1. On February 9, 1994, Robert G. Lewis ("Lewis") suffered a compensable industrial accident to the lumbar spine while working as a carpenter for Double S and received total disability benefits. Double S applied for reimbursement of these benefits from the Workers' Compensation Fund (the "Fund") pursuant to 19 Del. C. § 2327 (a). After a hearing was held, the Board issued a decision finding that Double S was entitled to reimbursement from the Fund. The Fund appeals this decision, and Double S moves to affirm it under Superior Court Civil Rule 72.1.
Because the Appellees have not raised the issue of whether the Fund has an appeal right, that issue will not be addressed in this decision. See Industrial Accident Bd. Second Injury and Contingency Fund v. Photo Color, Inc., et. al., Del. Super., C.A. Nos. 97A-01-018 and 97A-06-014, Carpenter, J. (Nov. 30, 1999).
Lewis does not join this Motion.
Effective July 1, 2000, Rule 72.1 was deleted.
2. In order to receive reimbursement under the Fund, the employer must prove the existence of a prior permanent injury. 19 Del. C. § 2327 (a) provides:
Whenever a subsequent permanent injury occurs to an employee who has previously sustained a permanent injury, from any cause, whether in line of employment or otherwise, the employer for whom such injured employee was working at the time of such subsequent injury shall be required to pay only that amount of compensation as would be due for such subsequent injury without regard to the effect of the prior injury. Whenever such subsequent permanent injury in connection with a previous permanent injury results in total disability as defined in § 2326 of this title, the employee shall be paid compensation for such total disability, as provided in § 2324 of this title, during the continuance of total disability, such compensation to be paid out of a special fund known as "Workers' Compensation Fund."
In this case, there was no dispute that Lewis sustained permanent injuries from his work accident in 1994. But there was a question of whether Lewis sustained a prior injury. The Board found that Lewis sustained a prior traumatic injury and resulting permanent impairment to the lumbar spine in 1974. It is this finding that the Fund is appealing in that there was not competent substantial evidence to support it.
3. After reviewing the record and the parties' submissions, the Court cannot find that substantial evidence so clearly exists as to warrant a motion to affirm. As a result, Double S's Motion to Affirm is DENIED and the Appellees' Answering Briefs are due within 20 days from the date of this Order and the Fund's Reply Brief is due within 10 days thereafter.
IT IS SO ORDERED. _____________________ Judge William C. Carpenter, Jr.