             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE



EVELYN MAE RUST GREGG,                    )
                                          )
Appellant,                                )
                                          )
                     v.                   )
                                          )      C.A. No. S15A-07-001 MJB
                                          )
STATE OF DELAWARE,                        )
                                          )
Appellee.                                 )


                                        OPINION

                                 Submitted: July 22, 2016
                                 Decided: August 29, 2016


Upon Appellant’s Appeal from the Delaware Insurance Commissioner’s Decision, AFFIRMED.




John F. Brady, Esq., The Brady Law Firm, 240 North James Street, Suite 106, Wilmington,
Delaware 19804, Attorney for Appellant.


Lynn A. Kelly, Esq., Deputy Attorney General, Carvel State Office Building 820 North French
Street, 6th Floor, Wilmington, Delaware 19801, Attorney for Appellee.


BRADY, J.
                                             I. INTRODUCTION

        This is an appeal from a decision of the Delaware Insurance Commissioner (the

“Commissioner”) denying Evelyn Mae Rust Gregg’s (“Appellant”) application for line of duty

benefits as a result of the death of her husband, Chief of Georgetown Police Department, Harvey

A. Gregg, Jr. (“Chief Gregg”).1 On December 19, 2014, a hearing was held before Leonard S.

Togman, Esquire (the “Hearing Officer”) who recommended that the Commissioner deny death

benefits.2 On June 9, 2015, the Commissioner adopted the Hearing Officer’s recommendation

and issued a Final Decision and Order denying Appellant death benefits.3 On July 7, 2015,

Appellant filed a timely appeal4 and on November 14, 2015, submitted an Opening Brief.5 On

November 17, 2015, the State of Delaware Insurance Coverage Office filed an Answering Brief6

to which Appellant responded on December 2, 2015.7 On April 18, 2016, the Court held an

office conference with regard to the matter and permitted the parties to submit additional briefing

on the issue of standing.8 On June 3, 2016, Appellee filed its submission on the issue of

standing9 and on July 22, 2016, Appellant filed hers.10                For the reasons stated below, the

Commissioner’s decision is AFFIRMED.




1
  Notice of Appeal, Item 1 (July 7, 2015).
2
  See Recommended Findings and Decision, Ex. to Appellant’s Notice of Appeal, Item 1 (July 7, 2015).
3
  Final Order and Findings of Fact, Ex. to Appellant’s Notice of Appeal, Item 1 (July 7, 2015).
4
  Notice of Appeal, Item 1 (July 7, 2015).
5
  Opening Brief, Item 13 (Nov. 4, 2015).
6
  Answering Brief, Item 14 (Nov. 17, 2015).
7
  Reply Brief, Item 15 (Dec. 2, 2015).
8
  See Scheduling Order, Item 18 (April 18, 2016).
9
  Appellant’s Supplemental Br., Item 19 (June 3, 2016).
10
   Appellee’s Supplemental Br., Item 20 (July 22, 2016).

                                                       2
                               II. FACTUAL & PROCEDURAL BACKGROUND

         On April 2, 1998, Chief Gregg was on duty, directing traffic on the Circle in Georgetown

for a funeral when he collapsed.11 Chief Gregg was transported to Beebe hospital where he died

two days later, on April 4, 1998.12

         Corporal Mark Rogers (“Corporal Rogers”) testified at the hearing that he was on his way

home and had entered the Circle in Georgetown when he saw Chief Gregg standing behind his

patrol car in his police uniform.13 Corporal Rogers further testified that he waved to Chief Gregg

and did not recall seeing traffic from a funeral.14 Corporal Rogers exited the Circle after seeing

Chief Gregg and was approximately a mile away when he received a page from the fire company

that there was an unconscious subject on the Circle.15 Corporate Rogers turned around to assist

and when he arrived an ambulance was on the scene.16 Corporal Rogers further testified that the

unconscious individual was Chief Gregg and that he assisted the ambulance personnel in getting

the stretcher out of the ambulance.17

         At the hearing, Dr. Lincoln Collins (“Dr. Collins”) an anatomic clinical and forensic

pathologist, testified that the cause of Chief Gregg’s death was ventricular fibrillation due to

acute myocardial infraction and probably atherosclerotic heart disease. 18 Dr. Collins opined that

Chief Gregg died from natural causes following a heart attack.19 This opinion was consistent




11
   See Final Order and Findings of Fact, Ex. to Appellant’s Notice of Appeal at 4, Item 1 (July 7, 2015).
12
   Id.
13
   Hr’g Tr., Ex. 10 to R. on Appeal, at 42-43, Item 7 (Sept. 25, 2015).
14
   Id.
15
   Id. at 43-44.
16
   Id.
17
   Id. at 44.
18
   Id. at 99-100.
19
   Id. at 100.

                                                          3
with the cause of death noted in the death certificate. The death certificate also noted that “brain

death” contributed to the cause of death.20

         On April 3, 1998, Chief Gregg underwent a computerized axial tomography scan (“CAT

scan”) which indicated that he had an extremely large right subdural hematoma and evidence of

intracranial blood in the right occipital lobe and also diffuse subarachnoid blood.21 The CAT

scan further indicated that there was a massive midline shift towards the left and there was

evidence of downward transtentorial herniation.22 Dr. Collins testified that the bleeding of Chief

Gregg’s brain and other brain injuries were the result of Chief Gregg being kept alive and would

likely not have occurred otherwise.23 Dr. Collins concluded that Chief Gregg’s death was the

result of cardiac symptoms and not neurologic symptoms.24 Dr. Collins noted that his opinion

was supported by the fact that there was no bruising on Chief Gregg’s face or head and that there

was no bleeding from any part of Chief Gregg’s body after the incident.25

         Debra Lawhead (“Lawhead”) an administrator at the State of Delaware Insurance

Coverage Office, testified at the hearing.26 Lawhead testified that her office pays certain benefits

pursuant to Delaware statutes, such as the line of duty disability and line of duty death benefits.27

Lawhead further testified that her office approves payments from a self-insured fund and has the

ability to either contest or not contest payments of line of duty death benefits.28




20
   Death Certificate, Ex. 4 to R. on Appeal, at 2 (Sept. 25, 2015).
21
   Hr’g Tr., Ex. 10 to R. on Appeal, at 89-91, Item 7 (Sept. 25, 2015).
22
   Id. at 91-92.
23
   Id. at 100-01.
24
   Id. at 98-100.
25
   Id. at 97.
26
   Id. at 130.
27
   Id. at 131.
28
   Id. at 132-33.

                                                           4
                                    III. THE COMMISSIONER’S DECISION

         Subsequent to Chief Gregg’s death the Delaware General Assembly passed an

amendment to 18 Del. C. §§ 6601 and 6602 which provides that a death from natural causes is

not a death in the line of duty except if the death was the proximate result of a heart attack while

the officer was engaged in nonroutine stressful or strenuous physical activity. The law further

provides that there is no statute of limitations for a claim for death in the line of duty benefits,

and that the amended statute “shall be applicable to all claims for benefits for death in the line-

of-duty occurring on or after July 1, 2005.” 29 The Commissioner held that these amendments

were not applicable to this claim because Chief Gregg died in 1998. The Commissioner further

found that Chief Gregg had died of natural causes after suffering a heart attack on April 2, 1998,

while on duty as Chief of Police of Georgetown, Delaware, and concluded that his death was not

a “death in the line of duty” pursuant to the version of 18 Del. C. § 6601 in effect at the time of

his death.30 The Commissioner, therefore, held that Appellant was not entitled to benefits.31 The

Commissioner also held that Appellant’s petition was barred by the statute of limitations set forth

in 10 Del. C. § 810632 because it was filed more than fifteen years after Chief Gregg’s death.33

The Commissioner was not persuaded by Defendant’s argument that the Insurance Coverage

Office lacked standing to challenge appellant’s claim, and ruled that, under 18 Del. C. § 6539,

the Insurance Coverage Office was charged with the responsibility of adjusting all claims and




29
   See 18 Del. C. § 6602.
30
   Recommended Findings and Decision, Ex. to Appellant’s Notice of Appeal at ¶9, Item 1 (July 7, 2015). The
Commissioner adopted and incorporated by reference the Hearing Officer’s recommendation in their Final Decision
and Order. See id.
31
   Id. at ¶11.
32
   10 Del. C. § 8106 provides a three year statute of limitations applicable to actions “based on a statute”. 10 Del. C.
§ 8106(a).
33
   Recommended Findings and Decision, Ex. to Appellant’s Notice of Appeal at ¶14, Item 1 (July 7, 2015).

                                                           5
paying all losses related to risks covered by the Fund and therefore they were a proper party in

this matter.34

                                         IV. PARTIES’ CONTENTIONS

                                         A. Appellant’s Contentions

         Appellant argues that the Insurance Coverage Office does not have standing to challenge

a claim that an employee died in the line of duty, and that 18 Del. C. § 6601 provides such a right

to the employer, not to the Insurance Coverage Office.35 Appellant further argues that 18 Del. C.

§ 6508 provides a list of the Insurance Coverage Office’s duties and that the duties listed do not

include challenging a claim that an employee died in the line of duty. 36 Appellant notes that the

Town of Georgetown did not rebut the claim, rather it recognized that Chief Gregg had died in

the line of duty by including him on a memorial wall.37 Appellant further notes that Mayor Bill

West testified before the hearing officer and indicated his view that Chief Gregg had died in the

line of duty.38

         Next, Appellant argues that her claim is not barred by the statute of limitations.39

Appellant contends that because, the Delaware General Assembly amended 18 Del. C. § 6602 to

expressly state that there was no statute of limitations for a claim for death in the line of duty

benefits, that amendment should govern this claim.40 In the alternative, Appellant argues that

the Delaware Superior Court decision in Johnson v. Williams,41 should control.42 Johnson held

that the three year statute of limitations does not begin to accrue until “a reasonable person, in

34
   Id. at ¶16.
35
   Opening Br., Item 13, at 4 (Nov. 4, 2015) (citing 18 Del. C. § 6601); Reply Br., Item 15, at 4-6 (Dec. 2, 2015).
36
   Reply Br., Item 15, at 4-5 (Dec. 2, 2015) (citing 18 Del. C. § 6508).
37
   Opening Br., Item 13, at 4 (Nov. 4, 2015); Reply Br., Item 15, at 5 (Dec. 2, 2015).
38
   Opening Br., Item 13, at 4-5 (Nov. 4, 2015); Reply Br., Item 15, at 5-6 (Dec. 2, 2015).
39
   Opening Br., Item 13, at 8-10 (Nov. 4, 2015); Reply Br., Item 15, at 9-11 (Dec. 2, 2015).
40
   Opening Br., Item 13, at 8 (Nov. 4, 2015) (citing 18 Del. C. § 66); Reply Br., Item 15, at 9 (Dec. 2, 2015) (citing
18 Del. C. § 66).
41
   Johnson v. Williams, 728 A.2d 1185, 1188 (Del. Super. Ct. 1998).
42
   Opening Br., Item 13, at 8-10 (Nov. 4, 2015); Reply Br., Item 15, at 9-11 (Dec. 2, 2015).

                                                           6
claimant’s position, should have recognized the nature, seriousness, and probable compensable

character of his injuries as qualifying him for available disability benefits.”43 Appellant argues

that a reasonable person would not have recognized the probable compensable character of Chief

Gregg’s death until Chief Gregg’s death was characterized as a death in the line of duty.44

Appellant contends that this did not occur until 2012, when the State recognized it as such by

placing Chief Gregg’s name on the memorial wall.45                    Appellant argues that the statute of

limitations therefore did not start to accrue until 2012 and, as a result, the claim was timely

filed.46

           Appellant argues that the Commissioner’s finding that Chief Gregg died from natural

causes was not supported by substantial evidence.47 Appellant notes that brain death is listed on

the death certificate as contributing to Chief Gregg’s cause of death.48 Appellant argues that if

brain function and brain injury were found to be a cause of Chief Gregg’s death then such a

finding would permit the award of death in the line of duty benefits.49 Appellant further argues

that such a finding is supported by substantial evidence.50 Specifically, Appellant notes that Dr.

Collins testified that Chief Gregg’s heart was functioning upon his arrival at Beebe Hospital, that

doctors were looking at the brain function as being the “big issue,” and that doctors were hopeful

that Chief Gregg’s brain function would improve.51 Appellant further argues that substantial




43
   Opening Br., Item 13, at 9 (Nov. 4, 2015) (quoting Johnson v. Williams, 728 A.2d 1185, 1188 (Del. Super. Ct.
1998); Reply Br., Item 15, at 10 (Dec. 2, 2015) (quoting Johnson, 728 A.2d at 1188).
44
   Opening Br., Item 13, at 9-10 (Nov. 4, 2015); Reply Br., Item 15, at 10-11 (Dec. 2, 2015).
45
   Opening Br., Item 13, at 9-10 (Nov. 4, 2015); Reply Br., Item 15, at 10-11 (Dec. 2, 2015).
46
   Opening Br., Item 13, at 10 (Nov. 4, 2015); Reply Br., Item 15, at 11 (Dec. 2, 2015).
47
   Opening Br., Item 13, at 11-12 (Nov. 4, 2015); Reply Br., Item 15, at 7-8 (Dec. 2, 2015).
48
   Opening Br., Item 13, at 11 (Nov. 4, 2015); Reply Br., Item 15, at 7 (Dec. 2, 2015).
49
   Opening Br., Item 13, at 11 (Nov. 4, 2015); Reply Br., Item 15, at 7 (Dec. 2, 2015).
50
   Opening Br., Item 13, at 11-12 (Nov. 4, 2015); Reply Br., Item 15, at 7-8 (Dec. 2, 2015).
51
   Opening Br., Item 13, at 11-12 (Nov. 4, 2015); Reply Br., Item 15, at 7-8 (Dec. 2, 2015).

                                                        7
evidence did not exist to support a finding that Chief Gregg died from natural causes because

“the fall after the heart attack could have caused the brain injury that led to the brain death.”52

                                         B. Appellee’s Contentions

        Appellee argues that 18 Del. C. § 6539 provides “wide discretion to the Insurance

Coverage Office to administer self-insurance claims, specifically line of duty death claims in

conformity with accepted practice in the commercial insurance industry.”53 Appellee contends

that 18 Del. C. § 6601 does not explicitly exclude the State Insurance Coverage Office from

contesting the validity of death in the line of duty benefit claims.54 Appellee further argues that

there are three potential parties that could defend the Insurance Commissioner’s decision on

appeal: (1) the Georgetown Police Department as the employer; (2) the Insurance Commissioner

as the administrative agency issuing the final decision; and (3) the Insurance Coverage office as

the agency paying any benefits.55 Appellee contends that even if the Insurance Coverage Office

is not a proper party to this suit, “the Insurance Commissioner remains a party to the litigation

and viable to defend its final decision and order.”56

        Appellee argues that Appellant’s claim is barred by the statute of limitations.57 Appellee

contends that the amended version of 18 Del. C. § 6601, which expressly states that there is no

statute of limitations, is inapplicable because the amendment provides that it is only applicable to

claims where the death occurred on or after July 1, 2005.58 Chief Gregg died in 1998 and

Appellee therefore argues that the previous version of 18 Del. C. § 6601 and relevant case law is




52
   Reply Br., Item 15, at 8 (Dec. 2, 2015).
53
   Answering Br., Item 14, at 16-17 (Nov. 17, 2015) (citing 18 Del. C. § 6539).
54
   Id.
55
   Appellee’s Supplemental Br., Item 20, at 5 (July 22, 2016).
56
   Id. at 7-8.
57
   Answering Br., Item 14, at 7-11 (Nov. 17, 2015).
58
   Id. at 9-10.

                                                         8
applicable.59 Specifically, Appellee argues that pursuant to Johnson, a claim for death in the line

of duty benefits is subject to a three year statute of limitations, which begins to accrue when a

reasonable person would recognize the probable compensability of the injury.60 Appellee argues

that a reasonable person would have recognized the probable compensable nature of Chief

Gregg’s death on April 2, 1998, the date at which Chief Gregg had a heart attack while on duty

in his police uniform.61

         Appellant notes that the revised version of 18 Del. C. § 6601 provides that a death

resulting from a heart attack is considered a death in the line of duty, but that the previous

version did not.62 Appellee argues that the previous version of 18 Del. C. § 6601 is controlling

in this matter and that a death resulting from a heart attack is not considered a death in the line of

duty.63 Appellee further argues that the Commissioner’s finding that Chief Gregg died of natural

causes was supported by substantial evidence.64 Specifically, Appellee notes that the undisputed

medical testimony of Dr. Collins indicated that the cause of Chief Gregg’s death was ventricular

fibrillation due to hypertensive and probably atherosclerotic heart disease.65 Appellee further

notes that Dr. Collins testified that, in his medical opinion, Chief Gregg died of natural causes

because there was no indication in the medical records of any other cause of death. 66

                                           V. STANDARD OF REVIEW

         “In an appeal from a board, Commissioner, or agency, Delaware courts defer to an

agency’s interpretation of statutes it is empowered to enforce if such interpretation is not ‘clearly



59
   Id.
60
   Id. at 8 (citing Johnson, 728 A.2d at 1188).
61
   Id. at 10-11.
62
   Id. at 14.
63
   Id.
64
   Id. at 12-14.
65
   Id. at 13-14.
66
   Id.

                                                     9
erroneous.’”67 The Court’s review is limited to determine whether the agency “exercised its

power arbitrarily or committed an error of law, or made findings of fact unsupportable by

substantial evidence.”68 Substantial evidence is evidence that a reasonable person might find

adequate to support a conclusion.69 More specifically, substantial evidence requires less than a

preponderance of the evidence, but “more than a mere scintilla.”70 The Court “shall take due

account of the experience and specialized competence of the agency and the purposes of the

basic law under which the agency has acted.”71 The Court does not “weigh evidence, determine

questions of credibility, or make its own factual findings.”72

                                              VI. DISCUSSION

                                     B. The Statute Of Limitations

        Prior to the 2014 amendment of 18 Del. C. § 6602, the statute was silent with regard to

the statute of limitations on a claim for deaths in the line of duty. 73 The current version of 18

Del. C. § 6602(b) states, in pertinent part, “[n]otwithstanding any law to the contrary, there shall

be no limit on the period of time during which a person may submit a claim for benefits under

this Chapter.”74 House Bill Number 372, which amended 18 Del. C. § 6602, states in Section 3,

“[t]his Act shall be applicable to all claims for benefits for a death in the line of duty occurring

on or after July 1, 2005.”75 Based on the language contained in House Bill Number 372, it was




67
   Johnson, 728 A.2d at 1188 (internal citations omitted).
68
   Olney v. Cooch, 425 A.2d 610, 613 (Del. 1981) (quoting Kreshtool v. Delmarava Power and Light Co., 310 A.2d
649 (Del. Super. Ct. 1973)); see also 29 Del. C. § 10142(d).
69
   Oceanport Indus. Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994).
70
   Mathis v. Delaware River and Bay Authority, 2012 WL 5288757, at * 2 (Del. Super. Ct. Aug. 22, 2012) (quoting
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988)).
71
   29 Del. C. § 10142(d).
72
   Mathis, 2012 WL 5288757, at *2 (citing City of Newark v. Unemployment Ins. Appeal Bd., 802 A.2d 318, 323
(Del. Super. Ct. 2002)).
73
   18 Del. C. § 6602 (2014).
74
   18 Del. C. § 6602(b).
75
   House Bill No. 372, App. to Appellee’s Answering Br., at 186-87, Item 14 (Nov. 17, 2015).

                                                      10
not clearly erroneous for the Commissioner to find that the prior version of 18 Del. C. § 6602

and relevant case law applied to Appellant’s claim.

         In Johnson, the petitioner was a volunteer fireman for the Wilmington Manor Volunteer

Fire Company (“Wilmington Fire Company”) and while in this capacity petitioner got trapped in

a burning building and suffered severe injuries when a building wall fell on him. 76           The

petitioner left the Wilmington Fire Company shortly thereafter and obtained a job with General

Motors Assembly Plant for a short period of time.77            GM subsequently terminated the

petitioner’s employment for failing to report to work and petitioner then found a job at Electrical

Rebuilders, Inc., where he worked for approximately four years. 78        Following this job the

petitioner worked in a part time capacity for approximately two years and was unemployed for

approximately one year before filing a petition for line of duty disability benefits.79 The hearing

officer, applying the same version of 18 Del. C. § 6602 in effect at the time of Chief Gregg’s

death, concluded that a claim for line of duty disability benefits was an action based on a statute

and therefore was subject to a three year statute of limitations.80         The hearing officer’s

recommendation was subsequently adopted by the Commissioner.81 This Court affirmed the

Commissioner, finding no error in the Commissioner’s determination that a claim for line of duty

disability benefits was subject to a three year statute of limitation.82 The Commissioner in

Johnson further found that the statute of limitations begins to accrue “when a reasonable person,

in claimant’s position, should have recognized the nature, seriousness and probable compensable




76
   Johnson, 728 A.2d at 1187.
77
   Id.
78
   Id.
79
   Id.
80
   Id. at 1188-89; see also 10 Del. C. § 8106.
81
   Johnson, 728 A.2d at 1187.
82
   Id. at 1189.

                                                 11
character of his injuries as qualifying him for [benefits].”83                      This Court found that the

Commissioner’s interpretation of the statute was not clearly erroneous.84

         In the case at bar, the Commissioner held that the statute of limitations began to accrue

when Chief Gregg died on April 4, 1998.85 Based on the evidence presented at the hearing there

was substantial evidence for the Commissioner to conclude that a reasonable person would have

known the probable compensability of Chief Gregg’s death at the time of his passing. It is

undisputed that Chief Gregg was the Chief of the Georgetown Police Department and was on

duty, in uniform, directing traffic on the Circle in Georgetown for a funeral when he collapsed. 86

Based on this evidence, it is clear that Chief Gregg was on duty at the time the injury occurred

which would have caused a reasonable person to recognize the probable compensable nature of

such an event.        The Court finds that the Commissioner’s determination was supported by

substantial evidence and free from legal error.

      B. The Commissioner’s Determination That Chief Gregg Died Of Natural Causes
                         Is Supported By Substantial Evidence

         Although the determination on the statute of limitations is dispositive the Court also finds

the Commissioner’s determination that Chief Gregg died of natural causes is supported by

substantial evidence. The only medical testimony was from Dr. Collins who concluded that

Chief Gregg died from natural causes.

         The Commissioner adopted the finding that Chief Gregg had died of natural causes after

suffering a heart attack on April 2, 1998, while on duty as Chief of Police of Georgetown,




83
   Id. at 1190.
84
   Id. at 1191.
85
   Final Order and Findings of Fact, Ex. to Appellant’s Notice of Appeal, Item 1 (July 7, 2015).
86
   See id. at 4. Neither Appellee nor Appellant dispute this fact in their briefs. See Opening Br., Item 13 (Nov. 4,
2015); see also Reply Br., Item 15 (Dec. 2, 2015); Answering Br., Item 14 (Nov. 17, 2015).

                                                          12
Delaware.87 The Commissioner ruled that because Chief Gregg died of natural causes, his death

was not a “death in the line of duty” within the meaning of 18 Del. C. § 6601, and therefore

Appellant was not entitled to benefits.88

         It is important to note at the outset that the circumstances of this case do not present

conflicting expert opinions, each supported by substantial evidence, from which the

Commissioner would be free to accept one expert’s opinion over another.89 Rather, only one

expert, Dr. Collins, testified.90 He opined that Chief Gregg died from natural causes following a

heart attack.91 Upon questioning, Dr. Collins’ opinion was consistent with the cause of death

noted in the death certificate.92 The death certificate, however, also noted that “brain death”

contributed to the cause of death.93 Dr. Collins testified that the bleeding of Chief Gregg’s brain

and other brain injuries were the result of Chief Gregg being kept alive and would likely not

have occurred otherwise.94 Dr. Collins could not explain whether the subural hematoma or other

brain injury caused Chief Gregg’s death, however he explained that regardless of any head

injuries the starting process was his cardiac arrest which supported his opinion that Chief Gregg

died from natural causes.95 After reviewing all relevant medical reports including the CAT scan,

Dr. Collins opined that Chief Gregg’s death was the result of cardiac symptoms and not

neurologic symptoms.96 Dr. Collins noted that his opinion was supported by the fact that there


87
   Recommended Findings and Decision, Ex. to Appellant’s Notice of Appeal at ¶9, Item 1 (July 7, 2015). The
Commissioner adopted and incorporated by reference the Hearing Officer’s recommendation in their Final Decision
and Order. See id.
88
   Id. at ¶11.
89
   See, e.g., DiSabatino Bros., Inc. v. Worthman, 453 A.2d 102, 106 (Del. Super. Ct. 1982) (noting that the Industrial
Accident Board, like the Insurance Commissioner, is free to accept the testimony of one medical expert over
another); see also Downes v. State, 623 A.2d 1142 (Del. Super. Ct. 1993).
90
   Hr’g Tr., Ex. 10 to R. on Appeal, at 100, Item 7 (Sept. 25, 2015).
91
   Id.
92
   Death Certificate, Ex. 4 to R. on Appeal, at 2 (Sept. 25, 2015).
93
   Id.
94
   Hr’g Tr., Ex. 10 to R. on Appeal, at 100-01, Item 7 (Sept. 25, 2015).
95
   Id. at 98-101.
96
   Id. at 98-100.

                                                         13
was no bruising on Chief Gregg’s face or head after the incident and that there was no bleeding

from any other part of Chief Gregg’s body after the incident.97

        The Commissioner was free to accept or reject Dr. Collins’ testimony and, ultimately,

made a ruling that was consistent with his opinion and testimony. Appellant’s argument that

there was substantial evidence to support a finding that Chief Gregg died from brain death rather

than from cardiac symptoms, was not supported by expert opinion. Further, the Court’s standard

of review is limited to whether there is substantial evidence to support the Commissioner’s

findings. On appeal, this Court does not make its own factual findings, weigh the evidence, or

determine questions of credibility.98           Rather this Court’s review is limited to whether the

Commissioner’s findings were supported by substantial evidence.99                      Based on Dr. Collins’

testimony and the death certificate, the Court finds that the Commissioner’s finding that Chief

Gregg died from natural causes was supported by substantial evidence.

                                                 C. Standing

        All benefits paid as a result of a death in the line of duty are paid from the State Self-

Insurance Fund.100        The General Assembly, under 18 Del. C. § 6505, created the Insurance

Coverage Office which is directed and supervised by the Director of the Office of Management

and Budget and whose executive head is the Insurance Coverage Administrator. 101 The General

Assembly subsequently listed twelve duties of the Insurance Coverage Office, including the

“operation of the Self-Insurance Fund.”102 18 Del. C. § 6539 states, in pertinent part, that “[t]he

Insurance Coverage Office shall have the responsibility of adjusting all claims and paying all



97
   Id. at 97.
98
   Olney, 425 A.2d at 613 (quoting Kreshtool, 310 A.2d 649); see also 29 Del. C. § 10142(d).
99
   Id.
100
    18 Del. C. § 6608.
101
    18 Del. C. § 6505.
102
    18 Del. C. § 6508.

                                                        14
losses in risks covered by the Fund, and shall carry out its duties in conformity with appropriate

regulations promulgated for that purpose by the Administrator, which regulations shall be in

general conformity with the accepted practice in the commercial insurance industries in such

matters.”103 Furthermore, 18 Del. C. § 6540 expressly states that “[a]ny dispute between the

Insurance Coverage Office and a claimant . . . which cannot be amicably resolved, may be made

the subject of litigation in any court of competent jurisdiction in this State.”104

        18 Del. C. § 6601 provides that when a person dies while on active duty a rebuttable

presumption is created that such a death was a death in the line of duty and the burden of proof

“shall be on the employer to demonstrate by a preponderance of the evidence that such death was

not a death in the line of duty.”105 In the instant matter, the Commissioner made no reference to

a rebuttable presumption that Chief Gregg death was in the line of duty nor did the

Commissioner make a finding that the employer demonstrated, by a preponderance of the

evidence, that such death was not a death in the line of duty.106 However, Appellant’s claim is

nonetheless barred by the statute of limitations, which is dispositive in this matter.

                                              VII. CONCLUSION

        The Court finds that the Commissioner’s determination that Appellant’s claim is barred

by the statute of limitations was not clearly erroneous.                 The Court further finds that the

Commissioner’s finding that Chief Gregg died from natural causes is supported by substantial

evidence. Specifically, the finding is supported by the expert testimony of Dr. Collins and the

death certificate. The Court finds that the Commissioner’s holding that a death from natural



103
    18 Del. C. § 6539.
104
    18 Del. C. § 6540 (emphasis added). This language clearly anticipates the Insurance Coverage Office having
authority to make decisions adverse to a claim and to defend those decisions in litigation.
105
    18 Del. C. § 6601(2).
106
    See Final Order and Findings of Fact, Ex. to Appellant’s Notice of Appeal at 4, Item 1 (July 7, 2015).

                                                       15
causes is not compensable as a death in the line of duty pursuant to 18 Del. C. § 6601 was not

clearly erroneous. Accordingly, the Commissioner’s decision is AFFIRMED.

       IT IS SO ORDERED.


                                                  ________________________________
                                                  M. Jane Brady
                                                  Superior Court Judge




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