Opinion
C.A. No. K21A-03-001 NEP
04-16-2021
MARY JUSTICE, Appellant, v. INDUSTRIAL ACCIDENT BOARD and CAPITAL SCHOOL DISTRICT, Appellees.
ORDER
Having considered the Motion to Dismiss filed by Appellee Capital School District (State of Delaware) (the "Employer") and the response of Appellant Mary Justice ("Ms. Justice"), the Court finds as follows:
Ms. Justice is self-represented in this appeal.
1. Ms. Justice filed a workers' compensation claim as a result of injuries allegedly sustained while employed by Capital School District, a public school district in Kent County, Delaware.
2. On February 5, 2021, the Industrial Accident Board (the "Board") issued a decision denying Ms. Justice's Petition to Determine Compensation Due (the "Decision").
3. On February 9, 2021, the Decision was mailed to the parties.
4. On March 12, 2021, Ms. Justice filed a Notice of Appeal of the Decision with this Court.
5. Pursuant to 19 Del. C. § 2349, a party has 30 days to appeal a decision of the Board.
19 Del. C. § 2349 ("An award of the Board, in the absence of fraud, shall be final and conclusive between the parties, . . . unless within 30 days of the day the notice of the award was mailed to the parties or electronically received by secured email, either party appeals to the Superior Court for the county in which the injury occurred.").
6. In Irvin-Wright v. State, this Court found the language of Section 2349 to be unambiguous as to filing dates and that the statute lacks any "accommodating language" that would extend or toll the 30-day filing deadline.
See Irvin-Wright v. State, 2003 WL 21481004, *2 (Del. Super. June 16, 2003) ("There is not an indicia of any accommodating language within the text of the statute that, upon interpretation, would permit an extension or tolling of the 30-day filing deadline due to exigent conditions or mitigating circumstances hindering or prohibiting compliance.")
7. Because Ms. Justice filed her appeal of the Decision on March 12, 2021, one day after the appeal period had run, her appeal is time-barred.
8. This finding is also consistent with this Court's holding in Genesis Health Ventures v. Horne.
See Genesis Health Ventures v. Horne, 2008 WL 2331983, at *1-2 (Del. Super. May 30, 2008) (dismissing appellant's appeal because it was filed one day past the statute of limitations period; the Court held that the time allowances provided by Superior Court Civil Rule 6(e), allowing additional time when service is by mail, do not apply to decisions mailed by the Industrial Accident Board based on precedent and the plain language of 19 Del. C. § 2349). --------
WHEREFORE, the Employer's Motion to Dismiss is hereby GRANTED.
IT IS SO ORDERED.
/s/ Noel Eason Primos
Judge NEP/wjs
Via File & ServeXpress and U.S. Mail
oc: Prothonotary
cc: Mary Justice
Counsel of Record