Opinion
C.A. No. 10A-07-007 CLS.
Submitted: January 25, 2011.
Decided: April 20, 2011.
On Appellant's Motion to Stay the Order of Dismissal. DENIED.
Keri L. Morris, Esq., Timothy A. Casey, Esq., Wilmington, DE, Attorneys for Appellant.
Timothy Lengkeek, Esq., Wilmington, DE, Attorney for Appellee.
ORDER
Introduction
Before the Court is the Appellant's motion to stay the order of dismissal. The Court has reviewed the parties' submissions and heard argument. For the reasons that follow, the motion to stay the order of dismissal is DENIED.
Procedural Facts
On June 8, 2010, the Industrial Accident Board ("IAB") held a hearing and found Clare Makowski ("Appellee" or "Ms. Makowski") was within the scope of her employment when she was involved in an automobile accident that occurred on January 22, 2009. At the time of the accident, Ms. Makowski was employed by Lisa Broadbent Insurance Co. ("Appellant"). On June 17, 2010, the IAB found Ms. Makowski was acting within the scope of her employment when the January 22, 2009 accident occurred.On July 15, 2010, Appellant filed a notice of appeal in this Court. A briefing scheduled was issued on September 3, 2010. The opening brief was due September 23, 2010. On or about September 10, 2010 the parties agreed to amend the briefing schedule with the opening brief then due on October 1, 2010. On or about October 5, 2010, the Appellant filed a motion to extend the briefing schedule, to be presented to the Court on October 12, 2010. The motion was re-noticed to be presented to the Court on October 26, 2010 since the Appellant did not provide ten days notice. On or about October 8, 2010, Appellee filed a motion in opposition and a motion to dismiss for lack of prosecution pursuant to Super. Ct. Civ. R. 72(i). On October 25, 2010, the day before the motion to extend the briefing schedule was to be heard, the Appellant re-noticed its motion to November 9, 2010 due to the attorney's illness. The opening brief was filed on October 25, 2010. On October 26, 2010, without knowing the opening brief had been filed, the Court issued an order granting Ms. Makowski's motion to dismiss without prejudice.
It was scheduled to be heard with Appellant's motion to extend the briefing schedule.
This is Appellant's motion to stay the order of dismissal. Appellant filed an opening brief to appeal the decision of the IAB the day before the motion to dismiss was granted, so an answering brief for the appeal was not filed. Having reviewed the merits of the opening brief to determine whether the motion to dismiss should be stayed or vacated, the motion is denied because the decision of the Industrial Accident Board would have been affirmed, Appellant will not suffer irreparable harm in having to pay workers' compensation benefits, Appellee will suffer substantial harm in not receiving her workers' compensation benefits, no public interest will be harmed, and the Appellant has failed to demonstrate excusable neglect.
Facts Relied Upon by the Industrial Accident Board
Lisa Broadbent ("Ms. Broadbent") testified at the hearing Ms. Makowski had completed making a bank deposit on behalf of the Appellant. After making the bank deposit, Ms. Makowski stopped at the Acme, in the same shopping center as the bank, to purchase groceries. Ms. Makowski then stated she was on her way to the Bear Post Office to deliver business related mail when she was injured in an automobile accident on January 22, 2009. Appellant disputes the decision of the IAB, that Appellee's injuries were compensable by workers' compensation because she had resumed her business purpose.Ms. Broadbent testified that Ms. Makowski worked various jobs for the Appellant. In January 2009, Ms. Makowski held the position of Agency Development Representative. Introduced into evidence was the written description of the job, which includes picking up and dropping off mail to the post office as needed. Ms. Broadbent also acknowledged that the Nationwide Insurance job description for a "Licensed CSR/Agency Development Specialist" included running errands to the post office and making bank deposits. She stated employees did not need her permission to take business mail to the post office. It was at their discretion. Ms. Broadbent also indicated the job description had been revised to remove the post office errand, but did not provide evidence of the modification.
Ms. Broadbent testified that the post office in Bear, where Ms. Makowski was allegedly going to drop off the mail, closed at 5:30 p.m. Ms. Makowski made the bank deposit right after work and the deposit slip indicates it was made at 5:26 p.m. When she took mail to the post office, Ms. Makowski usually drove to the Ogletown Post Office, which was open until 8:00 p.m. Ms. Makowski testified that if she did not have to make the bank deposit that evening then she would have delivered the mail to the Ogletown Post Office because it was more convenient. The Ogletown Post Office was not located near the Appellee's location or where she was travelling. Ms. Makowski was unaware of the Bear Post Office hours of operation and stated that if it was closed when she arrived, then she would have driven to another post office until she found one that was open. Ms. Makowski stated she would not have been on Walther Road, the location of the accident, if she was not headed toward the Bear Post Office.
The receptionist, Virginia Connelly ("Ms. Connelly"), testified at the hearing that after the accident Ms. Makowski told her she was unable to deliver the mail to the post office. Ms. Connelly testified that Steven Makowski ("Mr. Makowski") came to the office and gave her the bank deposit slip and the business mail Ms. Makowski was unable to take to the post office.
Mr. Makowski testified at the hearing that he heard Appellee, his wife, call Ms. Broadbent and tell her that she made the bank deposit, but was unable to deliver the business mail. Mr. Makowski testified that their former neighbor was at the accident scene and collected the bank deposit slip and mail from Ms. Makowski's vehicle. Mr. Makowski picked the items up the following day and hand delivered them to Ms. Connelly. Mr. Makowski and Ms. Connelly testified that all the mail was business related, none of it was personal.
Ms. Broadbent took exception to the long delay in applying for workers' compensation benefits. The accident occurred on January 22, 2009 and Ms. Makowski did not file for benefits until November 16, 2009, when the PIP coverage was about to expire. Mr. Makowski testified that Appellee delayed because she thought the PIP benefits would cover her medical expenses and she did not want to cause bad relations with her employer. The IAB found the delay in filing for benefits was not a reason to deny Ms. Makowski the opportunity to file a timely claim for workers' compensation.
Ms. Makowski testified at the hearing that her office hours were 9:00 a.m. to 5:00 p.m. She verified her job duties included taking mail to the post office as needed and at her discretion. She stated the few times she delivered mail on behalf of Appellant it was to the Ogletown Post Office. She was not familiar with the Bear Post Office hours of operation. She testified Ms. Connelly typically made the bank deposits, but if Ms. Connelly was unable to make the deposit then she would ask Ms. Makowski to do it. On this particular day, Ms. Connelly was unable to take the bank deposit so she asked Ms. Makowski to do it for her.
Ms. Makowski testified that on January 22, 2009, she had been trying to complete work for a long term client who was leaving for Canada and requested an insurance card before he left. Ms. Makowski was not able to complete the work before the mail was collected from the mail bin between 11:30 a.m. and 12:00 p.m. or the drop box outside the office. Ms. Makowski did complete the work before the end of the day and attempted to take it directly to the post office for immediate mailing. Ms. Makowski testified that she mentioned going to the post office to Ms. Broadbent and that Ms. Broadbent acknowledged the statement. However, Ms. Broadbent stated at the hearing that she did not recall Ms. Makowski's statement about taking mail to the post office.
The automobile accident report indicates the accident occurred at 6:01 p.m. Later that evening Ms. Makowski called Ms. Broadbent to tell her she would not be back to work on Friday or Monday, that she made the bank deposit, but did not make it to the post office. Ms. Makowski testified that Ms. Broadbent responded it was okay.
Ms. Makowski testified that she initially denied the accident was work related because she thought the PIP benefits would cover her medical expenses. She also testified that she did not want to strain relations with Ms. Broadbent by filing a workers' compensation claim. Ms. Makowski testified she previously filed a workers' compensation claim, but when Ms. Broadbent denied compensability she did not pursue it. Ms. Makowski also testified that she previously submitted a request for reimbursement of travel expenses and was denied. While she stated she was unhappy with those denials, she did not feel vindictive towards Appellant, as Ms. Broadbent contends.
Zima Wilson and Gina McGlamery testified on behalf of Appellant at the hearing. Both testified that no one is asked to go to the post office to deliver mail. According to Ms. McGlamery, Ms. Makowski stated she would not run errands for Appellant after work hours because she was not compensated for it. Ms. McGlamery also testified that when she asked Ms. Makowski if she was running a work errand at the time of the accident, Ms. Makowski responded no. The IAB did not find Zima Wilson or Gina McGlamery credible. Neither Ms. Wilson nor Ms. McGlamery knew whether Ms. Makowski left with work with business mail that evening. Additionally, the IAB noted Ms. Makowski's comment about not working after 5:00 p.m. was not true since she made a bank deposit on January 22, 2009 at 5:26 p.m.
Motion to Stay the Order of Dismissal
The motion to stay the order of dismissal is based on Super. Ct. Civ. R. 62(b) and 60(b). When deciding whether to grant a stay the Court must consider: (1) the likelihood of success on appeal; (2) whether the Appellant will suffer irreparable injury if the stay is denied; (3) whether the Appellee will suffer substantial harm if the stay is granted; and (4) what harm will fall on the public interest if the stay is granted. A party may be relieved from a final judgment, such as a dismissal, when there has been excusable neglect, or another reason articulated in Super. Ct. Civ. R. 60(b).
Kirpat, Inc. v. Delaware Alcoholic Beverage Control Comm'n, 741 A.2d 356, 357 (Del. 1998).
I. The Judgment Dismissing the Case Will Not Be Vacated or Stayed Pending Further Submissions Since the Decision of the Industrial Accident Board Would Be Affirmed.
Standard of Review
The scope of review of an appeal from the Industrial Accident Board ("IAB"), filed within thirty days, is limited to whether the decision is based on substantial evidence or if the IAB committed an error of law in reaching its decision. Evidence is substantial when a reasonable person would think the evidence presented was adequate to support the conclusion. The Court will not weigh the evidence, determine the credibility of the witnesses, or make its own factual findings and conclusions. Deference is given to the decision of the IAB. "In reviewing the record for substantial evidence, the Court will consider the record in the light most favorable to the party prevailing below."Discussion
A. The Industrial Accident Board Did Not Err as a Matter of Law in Finding Ms. Makowski Was Within the Course and Scope of Her Employment at the Time of the Automobile Accident.The IAB did not err in finding Ms. Makowski was within the course and scope of her employment because she had returned to her work related route at the time of the accident. Workers' compensation is available for those injuries "arising out of and in the course of employment." A personal injury arising out of or in the course of employment is defined in 19 Del. C. § 2301(18). The "going and coming" rule, as it is called, does not compensate employees for injuries resulting from an accident during an employee's regular travel to and from work. However, when an employee is "engaged elsewhere in or about the employer's business where the employee's services require the employee's presence as part of such service at the time of the injury" those injuries are covered by workers' compensation.
19 Del. C. § 2304.
Histed v. E.I. Du Pont de Nemours Co., 621 A.2d 340, 343 (Del. 1993).
"The requirements `arising out of' and `in the course of' employment are two separate requirements both of which must be met for worker's compensation to be applicable." `Arising out of' employment refers to the origin and cause of the accident. Conversely, `in the course of' employment refers to the "time, place and circumstances of the injury." So, in order to receive workers' compensation, the injury "must have been caused in a time and place where it would be reasonable for the employee to be under the circumstances" and there must be a "reasonable causal connection between the injury and the employment." Generally, a deviation from a business trip for personal reasons takes the employee out of the course of employment until the employee returns to the business route.
Rose v. Cadillac Fairview Shopping Ctr. Properties (Delaware) Inc., 668 A.2d 782, 786 (Del. Super. Ct. 1995) aff'd sub nom. Rose v. Sears, Roebuck Co., 676 A.2d 906 (Del. 1996).
Id.
Id.
Id.
Airport Shuttle Service, Inc. v. Curran, 247 A.2d 204, 207 (Del. 1968).
The IAB correctly applied the "going and coming" rule when it found the injuries suffered by Ms. Makowski arose out of and in the course of her employment. The IAB found Ms. Makowski, per her written job description, was permitted to run business related errands, such as dropping off mail at a post office. Ms. Broadbent acknowledged she did not need to grant permission for an employee to take business mail to the post office. She further stated trips to the bank and post office could be made either before or after work. It was at the employee's discretion. Ms. Makowski stated she would not have been at the location of the accident if she was not headed to the Bear Post Office to drop off business mail. Therefore, the IAB found Ms. Makowski had resumed her business route when the automobile accident occurred and her personal deviation had ended. As a result, the IAB concluded the injuries suffered by Ms. Makowski are compensable by workers' compensation.
Appellant argues the Court should focus on the route taken by Ms. Makowski and find the IAB erred because Ms. Makowski was not on her way to the Ogletown Post Office, where she normally takes business mail. Appellant argues this case is distinguishable from Curran, where the shuttle driver was found to be within the course of his employment when he was killed in an automobile accident despite the fact that he had taken a detour from work. The Court placed a great amount of emphasis on the route taken by the driver because it was his, and the other drivers', normal business route. In doing so, the Court discounted the three hour detour taken by Mr. Curran because he was required to take his cash receipts to the office before 8:00 a.m and he was headed in that direction. His death was found to be covered by the Workers' Compensation Act. However, Ms. Makowski was not required to take the business mail to a particular post office or take a particular route. Ms. Broadbent testified her employees had the discretion to take mail to any post office and did not need her permission. Based on these facts, the IAB properly concluded Ms. Makowski was within the course and scope of her employment because she was en route to a post office to drop off business mail.
Curran, 247 A.2d at 207.
Id. at 206, 207.
Id. at 207.
Appellant argues Ms. Makowski took more than a short detour for personal comfort reasons so she had disembarked from her business purpose and could not have been acting in the course and scope of her employment when the accident occurred. In Wyoming Concrete, Inc. v. Hall , the truck driver had stopped at his residence to apply medication and use the facilities before he returned to his employer's premises. On his way back to work he was involved in an automobile accident. He was found to be within the course and scope of his employment because he was not required to follow a particular route. Ms. Makowski was also not required to follow a particular route. She was permitted to take the business mail to any post office that she chose. Even though she normally drove to the Ogletown Post Office, she was not required to go to that location, as Appellant contends. The IAB found Ms. Makowski returned to her business route after stopping to purchase groceries and based on Hall, there was no error in finding her to be within the course and scope of her employment. B. The Decision of the Industrial Accident Board is Supported by Substantial Evidence.
1989 WL 147445 (Del. Super. Ct.).
Id. at *1.
Id. at *3.
Whether the injuries suffered by Ms. Makowski were within the course and scope of her employment is a mixed question of law and fact. When deciding issues of fact on review, the Court "shall take due account of the experience and specialized competence of the agency and of the purposes of the basic law under which the agency has acted." In the absences of fraud, a review of the decision of the IAB is limited to whether that decision is supported by substantial evidence on the record. Substantial evidence "means relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion." Since fraud has not been alleged, the decision of the IAB will be reviewed for substantial evidence.
Histed v. E.I. Du Pont de Nemours Co., 621 A.2d 340, 342 (Del. 1993).
29 Del. C. § 10142.
Id.
Histed, 621 A.2d at 342 (citation omitted).
The decision of the IAB is supported by substantial evidence. The IAB gave significant weight to the testimonies of Appellee, Mr. Makowski, and Ms. Connelly. Appellee's written job description permitted her to take mail to the post office. Ms. Broadbent testified that she did not need to give an employee permission to take business mail to the post office; it was at the discretion of the employee. Appellee testified that she was on her way to the post office in Bear when the accident occurred. Mr. Makowski testified he returned the business mail to Ms. Connelly the next day. Ms. Connelly testified that she received the business mail from Mr. Makowski. Based on the information presented to the IAB, the decision is supported by substantial evidence.
II. The Appellant Will Not Suffer Harm by a Denial of the Stay.
The Appellant has not stated how it would be harmed by a denial of the stay. The Appellant will not suffer harm in having to pay workers' compensation benefits properly awarded to Appellee because the decision of the IAB would have been affirmed. Additionally, there are methods available to collect any money paid should Appellant be successful in an appeal to the Delaware Supreme Court. The Appellant could file for wage garnishment or a debt collection action. By itself, this is not a showing or irreparable harm. Since the decision of the IAB would have been affirmed and if the Appellant is successful in a subsequent appeal it will have debt collection methods available, it will not suffer irreparable harm in having to pay the judgment awarded.
Mountaire Farms, Inc. v. Pitts, 2001 WL 789650 (Del. Super. Ct.).
Id. at *1.
Id.
III. Since the Appellee is Not Receiving the Workers' Compensation Benefits She was Properly Awarded, She is Suffering Substantial Harm.
The Appellee is suffering substantial harm in not receiving the workers' compensation benefits the IAB properly awarded her. On June 17, 2010, the IAB found the injuries suffered by Ms. Makowski to be compensable. In the months following the decision, the Appellant has failed to pay any benefits to the Appellee, as this Court learned at the hearing on January 25, 2011. As the accident at issue occurred over two years ago, on January 22, 2009, the Appellee continues to suffer harm in not receiving workers' compensation benefits.
IV. The Public Interest Will Not Be Harmed Because the Stay is Denied.
Neither the Appellant nor Appellee has stated that a public interest will be harmed if the stay is denied. Accordingly, a public interest will not be harmed in the denial of a stay.
V. The Appellant Has Failed to Establish Excusable Neglect.
The Appellant has failed to establish excusable neglect. Appellant filed its notice of appeal on July 15, 2010. The original briefing schedule stated the due date for Appellant's opening brief was September 23, 2010. The parties agreed to revise the briefing schedule with the opening brief due on October 1, 2010. On October 5, 2010, Appellant filed a motion to extend the briefing schedule, four days after the brief was due. In that motion and this one, Appellant does not set forth any basis for its failure to file an opening brief in a timely fashion, except that more time was needed to brief the issues and give counsel an opportunity to review the brief before submitting it to the Court. Appellant had ample opportunity to submit an opening brief. It had over two months from the filing of the notice of appeal to brief the issues and review the brief before submitting it to the Court. As a result, the Appellant has failed to demonstrate excusable neglect.
A motion to extend the briefing schedule also required Appellant to demonstrate excusable neglect pursuant to Super. Ct. Civ. R. 6(b).
Conclusion
Based on the forgoing, Appellant's motion to stay the order of dismissal is
DENIED.
IT IS SO ORDERED.