Opinion
C.A. No. 05A-08-003 JRJ.
Submitted: February 21, 2006.
Decided: May 26, 2006.
On Appeal from the Industrial Accident Board — REVERSED and REMANDED.
Joseph J. Rhoades, Esquire and A. Dale Bowers, Esquire, of the Law Office of Joseph J. Rhoades, 1225 King Street, Wilmington, Delaware 19899, Attorneys for Claimant-Appellant Margaret Mullin.
Nancy Chrissinger Cobb, Esquire, of Chrissinger Baumberger, Three Mill Road, Wilmington, Delaware 19806, Attorney for Employer-Appellee W.L. Gore Associates.
OPINION
This is the Court's decision on whether the Industrial Accident Board (the "IAB" or "Board") erred on remand by denying the Claimant's Petition to Determine Additional Compensation Due based on W.L. Gore and Associates' statute of limitations defense. For the reasons set forth below, the Court REVERSES and REMANDS this case to the Board for proceedings consistent with this Opinion.
I. Procedural Background
The Court set forth the facts and procedural background underlying this appeal its earlier decision. Nonetheless, a short recitation of the procedural history of the appeal sub judice is in order.
See Mullin v. W.L. Gore Assocs., 2004 WL 1965879, at *1 (Del.Super.).
The parties executed a Standard Agreement as to Compensation in 1991. On May 13, 2003, Ms. Margaret Mullin (the "Claimant") filed a Petition to Determine Additional Compensation Due for medical expenses (the "Petition"). After an October 23, 2003 Legal/Evidentiary Hearing, the Board issued a written decision in favor of W.L. Gore and Associates (the "Employer"), finding that the Claimant's Petition was time barred by the statute of limitations under 19 Del. C. § 2361(b). The Claimant appealed this decision on November 20, 2003. On appeal, the Court reversed the Board's decision and remanded for further proceedings on the statute of limitation issue.
Id. at *1.
Claimant/Appellant's Open. Br. at 1, Mullin v. W.L. Gore Assocs., C.A. No. 05A-08-003 (Dec. 2, 2005) (D.I. 6).
This Court found "the Board committed legal error by relying solely upon . . . hearsay [a Liberty Mutual Payment Log] and its decision was "not supported by substantial evidence." Mullin, 2004 WL 1965879, at *1.
On January 20, 2005, the Board heard the matter on remand. The Board issued a written decision on August 4, 2005, again finding the Claimant's Petition time barred under 19 Del. C. § 2361(b). On August 18, 2005, the Claimant appealed the Board's decision.
App. to Claimant/Appellant's Open. Br. at Exhibit A, p. 5, Mullin v. W.L. Gore Assocs., C.A. No. 05A-08-003 (Dec. 2, 2005) (D.I. 7).
D.I. 1.
II. Standard of Review
When considering an appeal of an IAB decision, this Court's function is to determine whether the Board's decision is "supported by substantial evidence and is free of legal error." Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." On appeal, the Court is not the trier of fact and has no authority "to weigh the evidence, determine the credibility of witnesses, or make independent factual findings." Hence, Board decisions "supported by substantial evidence will not be disturbed if they are free from legal error." This Court's review of the Board's conclusions of law is de novo.III. Arguments on Appeal
The Claimant avers that the Board made an error of law by treating the issue of notice as "separate and distinct from the issue of the statute of limitations" in reaching its conclusion that her Petition was time barred and that the issue of notice, pursuant to 18 Del. C. § 3914 or I.A.B Rule 4 ("Rule 4"), had been waived. She argues that the Board's determination that she waived her rights by failing to assert that the insurer's failure to give notice under 18 Del. C. § 3914 as an affirmative defense or pursuant to Rule 4 impermissibly shifted the Employer's burden of establishing its statute of limitations affirmative defense. She further argues that Rule 4 imposes no time limitation on her rights and neither Rule 4, nor 19 Del. C. § 2362(b) require her to allege that the Employer failed to give notice. She maintains that notice under 18 Del. C. § 3914 can not be waived.The Claimant also asserts that the Board erred as a matter of law by limiting its review on remand to the evidentiary issues related to the payment log, and not determining whether the Employer had met the burden of proof required to establish its statute of limitations affirmative defense. The Claimant argues that she has a "statutory right to participate in the rehearing on remand by presenting additional evidence and legal argument" related to her notice arguments. Finally, the Claimant urges the Court to disregard the Employer's Exhibit B (a July 31, 1997 Receipt for Compensation Paid) and related notice argument, because it is new evidence presented for the first time on appeal. Even so, she argues the Exhibit fails to prove that the Employer provided "prompt and timely" notice of the statute of limitations pursuant to 18 Del. C. § 3914.
See Claimant/Appellant's Open. Br., D.I. 6, at 9-11.
See Claimant/Appellant's Reply. Br., D.I. 10, at 4-5 (emphasis omitted).
See id. at 5-7.
See id. at 7-9.
In response, the Employer avers that the Board properly adhered to this Court's earlier decision by considering the only issue on remand, and that the Board correctly found that the Claimant's Petition was time-barred. The Employer argues that the Board properly addressed only issues relating to the expiration of the 19 Del. C. § 2361(b) five year statute of limitation, and that the Claimant's notice issue is "unrelated," was never raised in any pleading or prior hearing, and is therefore waived. Finally, the Employer contends it provided the Board with substantial evidence that the Petition is time-barred and that Claimant received proper notice of the statute of limitation via a written statement appearing on each Receipt for Benefits Paid provided by Liberty Mutual Insurance Company.
See Employer/Appellee W.L. Gore Assocs.' Answer. Br. at Section I, B, Mullin v. W.L. Gore Assocs., C.A. No. 05A-08-003 (Jan. 17, 2006) (D.I. 9).
Id. at Sections I, B and II, A, 2.
See id. at Section II, A, 1.
See id. at Section II, A, 3.
IV. Discussion
The primary issue on appeal is whether the Board erred by treating the issue of notice as "separate and distinct from the issue of the statute of limitations." 19 Del. C. § 2361(b) "establishes a five year statute of limitations for additional claims that generally runs from the last payment of compensation for which a receipt has been filed." The Supreme Court has held that notice of the statute of limitations "is a prerequisite for a statute of limitations defense." 18 Del. C. § 3914 requires insurers "to give prompt and timely written notice to claimant informing claimant of the applicable state statute of limitations regarding action for his/her damages." This Section is "`an expression of legislative will to toll otherwise applicable time limitations with respect to claims made against insurers.'" "It is reversible error to allow an insurer to raise the statute of limitations as a defense when it has not provided notice to a claimant." 18 Del. C. § 3914 "operates to require notice for the statute of limitations in section 2361(b)." "Without notice to claimants, the statute of limitations does not toll." "Only when a claimant receives notice" does 19 Del. C. § 2361(b) "place `the burden on claimants to pursue . . . payment of their medical bills within five years from any order or Board-approved agreement directing the employer to pay such expenses.'" Moreover, the obligation imposed on an insurer by 18 Del. C. § 3914 "cannot be waived through claimant's actions."In its August 4, 2005 decision, the Board relies on Blue Hen Lines, Inc. v. Turbitt and State v. Steen. While both cases limit the scope of the Board's review on remand, neither requiring "it to hear an entire case anew," they do permit consideration of "matters" that were "both part of the original appeal and specifically remanded by the appellate court." The first appeal in this case originated from the Board's October 23, 2003 decision dismissing that the Claimant's Petition as time-barred pursuant to the 19 Del. C. § 2361(b) five year statute of limitations. The Claimant appealed the Board's decision to dismiss her Petition as time-barred. On appeal, this Court reversed the Board's decision granting the Employer's Motion to Dismiss based on the statute of limitations and remanded the matter to the Board for "a further hearing on the statute of limitations issue."
Blue Hen Lines, Inc. v. Turbitt, 787 A.2d 74 (Del. 2001); State v. Steen, 719 A.2d 930 (Del. 1998). See App. to Claimant/Appellant's Open. Br., D.I. 7, at Exhibit A, p. 7.
Johnson Controls, Inc. v. Haines, 1999 WL 1568334, at *1 (Del.Super.).
Blue Hen Lines, Inc., 787 A.2d at 78 (explaining the holding in Steen, 719 A.2d 930).
See Mullin, 2004 WL 1965879, at *1.
Thus, "the subject to be decided on remand," i.e. the "matter," is whether the Claimant's Petition was time-barred under the 19 Del. C. § 2361(b) five year statute of limitations. The issue of notice is part and parcel of the statute of limitations issue. Therefore, the arguments and evidence related to 18 Del. C. § 3914, which operates to require notice of the 19 Del. C. § 2361(b) statute of limitations, are part of both the original appeal and this Court's remand. Accordingly, the Court finds that Claimant's notice issues are related to the other statute of limitations issues that were to be resolved on remand and which were raised by the prior appeal. Although hearsay issues related to the payment log were the focus of its earlier Opinion, the Court held that "the Board committed legal error by relying solely upon . . . [the payment log] and its decision is not supported by substantial evidence." It was not the Court's intention to limit the Board's review to this evidentiary issue alone by this holding. To the extent "there was any uncertainty" as to the scope of remand, "it should have been resolved by the Board in favor of allowing the Claimant to have presented additional evidence and legal argument."
Keeler v. Metal Masters Foodservice Equip. Co., Inc., 768 A.2d 979, 982 (Del.Super.Ct. 1999).
See Brown, 2006 WL 1210957, at *2; Blue Hen Lines, Inc., 787 A.2d at 78.
See Blue Hen Lines, Inc., 787 A.2d at 78.
See Mullin, 2004 WL 1965879, at *1.
Mullens v. Worthy Construction Co., 2001 WL 1738868, at *6 (Del.Super.) (citing Steen, 719 A.2d 930).
As the case law indicates, issues related to 18 Del. C. § 3914 notice are essential and integral to the 19 Del. C. § 2361(b) statute of limitations analysis. Thus, the Court finds the Board erred as matter of law on remand by not considering evidence related to other aspects of the Employer's statute of limitation affirmative defense, to include notice and the sufficiency of such notice. As established in State v. Steen, the Board is "to decide the matter, after the remand hearing, on the basis of the evidence from the prior hearing plus any new evidence and legal arguments the parties decide to present." Accordingly, "when afforded a rehearing on remand, the parties are entitled to present additional evidence and legal arguments." Thus, on remand for reconsideration of the statute of limitations issue in this case, the Claimant was entitled to present her additional evidence and legal argument relating to notice, which the Court finds were not waived. Although the Board found that the Claimant had not previously asserted her notice arguments, the record shows that the Employer raised the statute of limitations at the October 23, 2003 Hearing. Therefore, the Employer first brought the issue before the Board when it undertook the burden of establishing its statute of limitations affirmative defense at that Hearing.
Steen, 719 A.2d at 934.
Keeler, 768 A.2d at 981.
See Fleming, 2002 WL 31667335, at *1-3.
Claimant/Appellant's Open. Br., D.I. 6, at 1; App. to Claimant/Appellant's Open. Br., D.I. 7, at Exhibit A, p. 7.
Claimant/Appellant's Open. Br. at 1; App. to Claimant/Appellant's Open. Br., D.I. 7, at Exhibit B, pp. 1-3, 4-5, 9.
Hence, notice became a "prerequisite" for the Employer's statute of limitations defense the first time it raised the issue in opposition to the Claimant's Petition. Accordingly, the resolution of notice related issues then became necessary to determine whether the statute of limitations tolled and whether the Claimant met her "burden" to pursue payment of her medical bills within the five year limitations period. As indicated by the briefing on appeal, the parties dispute, inter alia, the sufficiency of notice. Thus, the Court finds the Board erred in finding the Claimant waived the issue of notice by failing to raise it as an affirmative defense.
Brown, 2006 WL 1210957, at *2.
See Brown, 2006 WL 1210957, at *2.
Finally, because the Court remands this matter to the Board for consideration of the statute of limitations issue and because it will "only decide an appeal on the record below," it is inappropriate for the Court to consider the substance of the parties' notice and sufficiency of notice arguments, or any related new evidence, at this time.
Wessells v. Am. Intern. Group, 2002 WL 233736, at *2 (Del.Super.).
V. Conclusion
For the aforementioned reasons, the decision of the Board is hereby REVERSED and REMANDED to the Board for proceedings consistent with this decision.