         IN THE SUPREME COURT OF THE STATE OF DELAWARE

CHRISTIANNE M. HAGGERTY,   §
                           §                   No. 203, 2017
      Appellant Below,     §
      Appellant,           §                   Court Below—Superior Court of the
                           §                   State of Delaware
      v.                   §
                           §                   C.A. No. N16A-08-001 (N)
BOARD OF PENSION TRUSTEES §
OF THE STATE OF DELAWARE §
and the DELAWARE OFFICE OF §
PENSIONS,                  §
                           §
      Appellees Below,     §
      Appellees.           §

                          Submitted: October 27, 2017
                          Decided:   January 16, 2018

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

                                 ORDER

      This 16th day of January 2018, upon consideration of the parties’ briefs and

the record on appeal, it appears to the Court that:

      (1)    The appellant, Christianne M. Haggerty, was employed as a New Castle

County police officer for more than sixteen years. On March 3, 2009, Haggerty was

injured on the job during a physical encounter with a suspect. Initially, Haggerty

was diagnosed with a shoulder strain and was placed on light duty, but by August

2010, recurring problems from her injury made it medically impossible for her to
perform any type of police work. Her employment with the New Castle County

Police Department was terminated as of October 7, 2010.

       (2)    On September 2, 2010, Haggerty applied for a disability pension. By

statute, the Board of Pension Trustees controls and manages the Delaware County

and Municipal Police/Firefighter Pension Plan (“the Pension Plan”).1 Under the

statute, the Pension Plan defines “partial disability” as a medical impairment “which

renders the member unable to function as a police officer and which is reasonably

expected to last at least 12 months.”2 The statute defines “total disability” as a

medical impairment “which renders the member totally unable to work in any

occupation for which the member is reasonably suited by training or experience,

which is reasonably expected to last at least 12 months.”3

       (3)    By letter dated November 23, 2010, Haggerty was notified that she had

been granted a partial disability pension effective October 10, 2010. She began

receiving those benefits in December 2010. At around the same time, Haggerty also

began receiving partial disability worker’s compensation benefits.

       (4)    Dissatisfied with the partial disability pension granted by the Pension

Board, and believing that she was eligible for a total disability pension, Haggerty



1
  See generally 29 Del. C. § 8308 (Supp. 2017) (codifying power and duties of Board of Pension
Trustees).
2
  11 Del. C. § 8801(13) (Supp. 2017).
3
  Id. (16).
                                              2
asked the Pension Board to reconsider her application for a disability pension.

Following a comprehensive vocational assessment completed in April 2011, a two-

member panel of the Pension Board held a hearing on September 14, 2011. The panel

issued a written report recommending that Haggerty’s request for a total disability

pension be denied. The panel’s report and recommendation was adopted as a final

decision of the Pension Board.

      (5)    Haggerty appealed the Pension Board’s decision to the Superior Court.

Haggerty argued that the Board failed to consider medical records supporting her

request for a total disability pension, including medical records establishing that her

condition had worsened since her original application. The Board responded that it

properly denied Haggerty’s request for a total disability pension on the basis of the

vocational assessment and that, under the Pension Plan statute, the Board was not

authorized to consider evidence that Haggerty’s condition had worsened since she

was originally determined to be eligible for a disability pension.

      (6)    When deciding Haggerty’s appeal from the Pension Board’s decision,

the Superior Court ruled in part for the Board and in part for Haggerty. In its order

dated July 20, 2012, the court found no error in the Pension Board’s procedures to

determine a member’s eligibility for a disability pension, including the Board’s

determination that, under the Pension Plan statute, it could not consider evidence

that a member’s condition had worsened after the member was originally determined

                                          3
to be eligible for a disability pension.4 Noting that the legislature, not the court, is

the proper forum for changing the language of a statute, the Superior Court explained

that “[a]s unfair as this may seem to Haggerty and any other service-member faced

with a degenerative condition caused by a work-related injury, this Court is not the

proper forum for relief.”5 The Superior Court reversed the Pension Board’s decision,

however, and remanded the matter for further proceedings after finding that the

Board had not considered any of the medical evidence submitted by Haggerty,

including evidence that might have been relevant to determining whether, at the time

she applied for a disability pension, she was totally disabled under the Pension Plan

statute.

         (7)    On remand, a panel of the Pension Board held a hearing on November

13, 2013. In the sixteen-month interval between the July 2012 remand order and the

November 2013 hearing, Haggerty underwent spinal fusion surgery. Following the

surgery, Haggerty’s worker’s compensation case was reopened, and she was

awarded total disability worker’s compensation benefits.

         (8)    Following the hearing in November 2013, the panel issued a report

again recommending that Haggerty’s request for a total disability pension be denied.

The panel’s report and recommendation was adopted as a final decision of the Board.



4
    Haggerty v. Bd. of Pension Tr., 2012 WL 3029580 (Del. Super. July 20, 2012).
5
    Id. at *4.
                                                4
         (9)    Haggerty appealed the Pension Board’s decision to the Superior Court,

arguing, in relevant part, that the Board had not complied with the Superior Court’s

July 20, 2012 order directing the Board to consider the medical evidence she

submitted. According to Haggerty, the Pension Board arbitrarily discounted some

of her medical reports simply because the information in the medical reports was

presented on forms prepared for and submitted in her worker’s compensation case.

In response, the Board argued that it gave appropriate weight to the information in

Haggerty’s worker’s compensation-related medical records and that, even with those

records, Haggerty had not established under the Pension Plan statute that she

qualified for a total disability pension.

         (10) By opinion issued on July 20, 2015, the Superior Court again reversed

and remanded the matter to the Pension Board to reconsider the medical record

evidence, including the medical records upon which Haggerty relied when she

successfully petitioned for total disability worker’s compensation benefits.6

Notably, however, in the opinion, the Superior Court reiterated its prior

determination—in the July 20, 2012 order—that the Board was not to consider

evidence that Haggerty’s impairment had worsened after her original filing for a

disability pension.7



6
    Haggerty v. Bd. of Pension Tr., 2015 WL 4477798 (Del. Super. July 20, 2015).
7
    Id. at *2.
                                                5
       (11) The Pension Board appealed the Superior Court’s July 20, 2015 opinion

to this Court, arguing that the Superior Court erred when it ruled that the Board erred

when weighing the medical evidence. We affirmed the Superior Court’s judgment.8

       (12) Following the Pension Board’s unsuccessful appeal, a panel of the

Board convened to review the entire record and reconsider all of the medical

evidence, including the medical reports that supported Haggerty’s successful

petition for total disability worker’s compensation benefits.             In a report and

recommendation that was later adopted as a final decision of the Board, the panel

confirmed its original decision that Haggerty “was partially disabled at the time of

her determination of pension disability eligibility” and therefore did not qualify for

total disability pension benefits.9 The panel explained:

              While the Board is sympathetic to the fact that over the course of
       the next several years, Ms. Haggerty’s health situation declined, both
       the [Pension Plan statute and the Superior Court’s July 20, 2012 order]
       make clear that the Board does not have the authority to increase Ms.
       Haggerty’s disability pension, after her eligibility determination
       effective October 10, 2010, as per 11 Del. C. § 8817(c). Thus, the
       Board may not consider evidence of Ms. Haggerty’s current Worker’s
       Compensation [total] disability status in an effort to increase her partial
       disability pension. To do otherwise would be beyond the Board’s
       authority as set forth in the [Pension Plan statute].10




8
  Bd. of Pension Tr.. v. Haggerty, 2016 WL 308917 (Del. Jan. 26, 2016).
9
  App. to Answering Br. at SA–155.
10
   App. at SA–154.
                                              6
       (13) Once again, Haggerty appealed the Pension Board’s decision to the

Superior Court. By memorandum opinion dated April 17, 2017, the Superior Court

affirmed the Board’s decision.11 This appeal followed.

       (14) Having carefully considered the parties’ briefs on appeal, the Superior

Court record, and the record of the proceedings before the Pension Board, we have

concluded that the Superior Court’s April 17, 2017 memorandum opinion should be

affirmed. Our decision turns in large measure on the Superior Court’s application

of the law of the case doctrine to its prior determination in the July 20, 2012 order

that the Pension Board could not consider medical evidence that Haggerty’s

condition worsened after she was originally determined to be eligible for a disability

pension.12

       (15) Recognizing that the Superior Court’s prior determination was crucial

to the Board’s confirmation of its original decision denying her request for total

disability pension benefits, Haggerty argues on appeal that the prior determination

was made in error and should not be the law of the case. We disagree. The Superior

Court did not err when determining that the absence of a statutory provision



11
  Haggerty v. Bd. of Pension Tr., 2017 WL 1505228 (Del. Super. April 17, 2017).
12
  The law of the case doctrine “stands for the proposition that ‘findings of fact and conclusions of
law by an appellate court are generally binding in all subsequent proceedings in the same case in
the trial court or in a later appeal.’” Ins. Corp. of America v. Barker, 628 A.2d 38, 40 (Del. 1993)
(quoting Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir. 1984)). The doctrine does not apply
when the prior determination is clearly wrong, produces an unjust result, or should be revisited
because of changed circumstances. Cede & Co. v. Technicolor, Inc., 884 A.2d 26, 39 (Del. 2005).
                                                 7
providing for an increase in disability pension benefits based on a pensioner’s

worsening condition effectively restricted the evidence the Pension Board was

allowed to consider when deciding Haggerty’s request for total disability pension

benefits.   Also, the Superior Court did not err when deciding that its prior

determination was the law of the case. It is a basic rule of statutory construction that

when a provision is expressly included in one statute but omitted from another, we

must conclude that the General Assembly intended to make the omission.13 In this

case, the Pension Plan statute does not contain a provision, as does the worker’s

compensation statute, allowing for an increase in benefits when the pensioner’s

condition worsens.14

       (16) When reviewing an appeal from a decision of the Pension Board, the

Court must determine whether the Board’s decision is supported by substantial

evidence and is free from legal error.15 In this case, the Pension Board properly

relied on the Superior Court’s determination that, under the Pension Plan statute, the

Board could not consider medical evidence that Haggerty’s condition worsened after




13
   Leatherbury v. Greenspun, 939 A.2d 1284, 1291 (Del. 2007).
14
   Compare 19 Del. C. § 2347 (Supp. 2017) (providing that an award of worker’s compensation
benefits may be terminated, diminished, or increased in the event the employee’s incapacity
changes), with 11 Del. C. § 8817(c), (d) (2010) (providing for the reduction or termination of
disability pension benefits in the event of the pensioner’s partial or full recovery).
15
   Richardson v. Board of Pension Trustees, 2017 WL 3721791, at *3 (Del. Aug. 29, 2017) (citing
Stoltz Mgmt. Co. v. Consumer Affairs Bd., 616 A.2d 1205, 1208 (Del. 1992) and 29 Del. C. §
10142(d) (2006)).
                                              8
she was originally determined to be eligible for a disability pension. The Board’s

decision confirming its award of a partial disability pension and denying Haggerty’s

request for a total disability pension is supported by substantial evidence and is free

from legal error.

      NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                        BY THE COURT:

                                        /s/ Karen L. Valihura
                                        Justice




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