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Kirkland v. Terminix, 2016 WL 3365815 (Del. Super. June 17, 2016)

The Superior Court affirms an IAB decision holding that the issue of whether a claimant’s work injuries had resolved was properly raised and addressed by the Board in the procedural context of a Petition for Review.

On April 29, 2013, Claimant, Shelina Kirkland, injured her low back and neck in a compensable industrial accident.  Employer filed a Petition for Review on December 12, 2014, seeking to terminate Claimant’s ongoing receipt of temporary total disability benefits.  Employer’s doctor, Dr. Kalamchi, was deposed prior to the hearing date, but claimant did not obtain expert testimony.  On the date of the hearing, the parties stipulated that the termination petition was no longer opposed and that Claimant’s disability had ended.  However, Employer wanted to proceed on the petition to determine the issue of whether Claimant’s injuries had entirely resolved based on Dr. Kalamchi’s testimony.  Claimant argued that, pursuant to the Board’s rules, the issue was not properly before the Board and Employer was required to file a second Petition for Review to “terminate medical benefits.”  The Board decided that the issue was properly before it, but continued the hearing 60 days to allow Claimant to depose a medical expert.  Claimant did not obtain expert testimony and the Board granted Employer’s Petition following the rescheduled hearing, determining that the work-related injuries had resolved fully.

Before the Board and again on appeal, Claimant argued that the issue as to whether her injuries had resolved was not properly before the Board because (1) Board Rule 26 requires a separate petition to be filed, (2) Employer’s argument was not properly raised in the pretrial memorandum and (3) Claimant’s counsel did not have notice of the argument required by the Administrative Procedures Act.  Claimant contended that she was harmed by the Board’s error because she would have questioned Dr. Kalamchi differently on cross-examination.

The Court deferred to the Board’s discretion to interpret its own rules and affirmed the decision.  The Court reasoned that there was no violation of Board Rule 26 and that Employer provided sufficient notice of its argument because it contended that Claimant’s injuries were not causally related to the work accident on the pretrial memorandum.  Even if the Board’s interpretation of the rules was erroneous, the sixty-day continuance to allow additional discovery remedied any prejudice to Claimant.  She had an opportunity to re-depose Dr. Kalamchi or her own expert, but elected to rely on her own testimony.  In effect, Claimant’s contention elevated form over substance and could not defeat a meritorious claim without some showing of harm on her part.


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