IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ROBERT McCABE,
C.A. No. K17A-02-001 WLW
Claimant-Below, : Kent County
Appellant, '
v.

BAYSIDE ROOFING, INC., a
Delaware corporation,

Employer-Below,
Appellee.
Submitted: August 1, 2017
Decided: November 15, 2017
ORDER
Upon Appeal From the Decision of the

Industrial Accident Board.
Reversed and Remanded

Walt F. Schmittinger, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware;
attorney for the Appellant.

John J. Ellis, Esquire of Heckler & Frabizzio, Wilmington, Delaware; attorney for the
Appellee.

Oliver J. Cleary, Esquire of the Department of Justice, Wilmington, Delaware;
attorney for the Industrial Accident Board. »

WITHAM, R.J.

Robert McCabe c. Bayside Roojl`ng, Inc.
C.A. No. Kl7A-02-OOl WLW
November 15, 2017

Employee-Appellant, Robert McCabe, appeals from a decision of the Industrial
Accident Board (the “Board”), denying his Petition for Additional Compensation Due
to Injured Employee. The Board denied Mr. McCabe’ s petition because he could not
meet his burden to prove that medical bills were not paid in full to his treating doctor,
Ganesh Balu, M.D. In addition, the Board found that Mr. McCabe failed to meet his
burden of proving that “clean claims” were submitted to the Employer-Appellee,
Bayside Roofing, Inc. (“Bayside Roofing”).

After a thorough review of the record, including the transcript of the hearing
before the Board, the Court must REVERSE and REMAND this case to the Board
because the Board committed legal error when it misapplied Industrial Accident
Board Rule 9.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying case involves Mr. McCabe’s workers’ compensation claim, in
which the following facts are not in dispute.

On November 23, 2010, Mr. McCabe suffered a compensable lower back
injury while employed by Bayside Rooflng. Mr. McCabe was treated by several
doctors for injuries, including Dr. Balu,

On April ll, 2016, Mr. McCabe filed a Petition for Additional Compensation
Due to Injured Employee seeking payment for medical bills associated with his
injuries.

On December 15, 2016, the Board held a hearing, in which Mr. McCabe
attempted to show that Bayside Roofing had not paid Dr. Balu for the entirety of Mr.

Robert McCabe c. Bayside Roofz`ng, Inc.
C.A. No. Kl7A-02-001 WLW
November 15, 2017

McCabe’s compensable medical treatment. To carry his burden, Mr. McCabe
offered, and the Board admitted, the previously taken deposition testimony of Dr.
Balu. Mr. McCabe also attempted to enter into evidence a proposed exhibit
(hereinafcer, the “Proposed Exhibit”), which contained, inter alia, various medical
bills. Bayside Roofing objected to the entry of the Proposed Exhibit into evidence,
contending that Bayside Roofing had not received the evidence until “after the 30-day
rule.”l Mr. McCabe contended that he attached the medical bills to a pre-trial
memorandum amendment, that he allegedly sent as a letter to the Board and Bayside
Roofing on June 10, 2016,
The Board sustained the objection holding:

[t]he letter that Mr. Schmittinger referenced of June lO, 2016 merely
references a close [indiscernible] finding amendment to the petition.
There’s nothing there referencing the inclusion of - - of the medical
bills. So the objection to the admission is sustained.

Afcer Mr. McCabe’s counsel asked the Board to clarify its decision, the Board
stated:

we have nothing in that letter to indicate there are medical bills attached

and I think that would’ve been helpful to us.

 

1 Although neither party identified the specific Board rule that defines the “3 0-day rule,” the
Court presumes the parties were referring to lAB Rule 9(B)(6), since the parties were disputing the
legitimacy of Mr. McCabe’s pre-trial memorandum amendment Rule 9(b)(6)(a) provides, in toto:

(a) Either party may modify a Pre-Trial Memorandum at any time prior to thirty (3 0)
days before the hearing, Amending the Pre-Trial Memorandum by written notice to
the opposing party and the designated employee of the Department of Labor may be
made in accord with this Rule. If a party objects to the amendment, the party
requesting relief shall file a motion in accord with Rule 8.

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Robert McCabe c. Bayside Roofing, Inc.
C.A. No. K17A-02-001 WLW
November 15, 2017

On December 27, 2016, the Board issued its decision, The Board found that
Mr. McCabe did not carry his burden of establishing that Bayside Roofing had failed
to pay bills they were obligated to pay. The Board relied upon Dr. Balu’s inability
to testify as to what amounts were still due and owing on Mr. McCabe’s account. In
addition, the Board determined that Mr. McCabe did not meet his burden of proving
that “clean claims” were submitted to Bayside Roofing in accordance with 19 Del. C.
§ 2322F.2 Therefore, the Board denied Mr. McCabe’s petition as to the
compensability of any outstanding medical bills allegedly still due to Dr. Balu.

On February 1, 2017, Mr. McCabe appealed the Board’s decision, filing his
notice of appeal with this Court.

THE PARTIES CONTENTIONS

First, Mr. McCabe contends that the Board erred when it sustained Bayside

Roofing’s objection to the admission of the Proposed Exhibit. According to Mr.

McCabe, the Board violated not only the Board’s own rules governing amendment

 

2 19 Del. C. § 2322F(a) provides that:

[c]harges for medical evaluation, treatment and therapy . . . shall be submitted to the
employer or insurance carrier along with a bill or invoice for such charges,
accompanied by records or notes, concerning the treatment or services submitted for
payrnent, documenting the employee’s condition and the appropriateness of the
evaluation, treatment or therapy, with reference to the health care practice guidelines
adopted pursuant to § 2322C of this title, or documenting preauthorization of such
evaluation or therapy.

See also, 19 Del. C. § 2322F(b) (regarding billing requirements for hospital services/items); 19 Del.
C. § 2322F(h) (allowing for denial of treatment where the claim does not contain “substantially all
the required data elements necessary to adjudicate the invoice.”).

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Robert McCabe c. Bayside Roofing, Inc.
C.A. No. K17A-02-001 WLW
November 15, 2017

to pre-trial memoranda, but also the Board’s decision conflicted with fundamental
notions of fairness that govern proceedings before the Board. Specifically, Mr.
McCabe alleges that he complied with Industrial Accident Board (“IAB”) Rule 9,
when he allegedly sent Bayside Roofing the medical bills, as part of a pre-trial
memorandum amendment on June 10, 2016. In addition, assuming that Mr. McCabe
did not comply with IAB Rule 9, Mr. McCabe argues that Bayside Roofing waived
its right to object to the admission of the Proposed Exhibit when it failed to object by
written motion to Mr. McCabe’s amended memorandum, in accordance with IAB
Rule 8. Finally, Mr. McCabe contends that the Board violated IAB Rule 14 when it
rejected the submission of the Proposed Exhibit because “the exclusion of relevant,
material and competent evidence by an administrative agency will be grounds for
reversal if that refusal is prejudicial.”

In response, Bayside Roofing contends that the Board was correct in rejecting
the Proposed Exhibit because Bayside Roofing allegedly did not receive the bills until
November 16, 2016, Therefore, according to Bayside Roofing, the bills were
inadmissible because they were not filed within the 30-day deadline, as required by
IAB Rule 9. As to IAB Rule 8, Bayside Roofing argues that Mr. McCabe’s
contention is inappropriate on appeal because he did not raise an argument related to
that rule at the hearing below. Thus, Bayside Roofing contends that Mr. McCabe’s
argument as to IAB Rule 8 is also without merit. Moreover, Bayside Roofing alleges
that the medical bills were properly excluded because the Proposed Exhibit was

unauthenticated and unsubstantiated by witness testimony. The Proposed Exhibit,

Robert McCabe c. Bayside Roofing, Inc.
C.A. No. Kl7A-02-001 WLW
November l 5, 2017

therefore, was inadmissible as violating the rules of evidence.

Second, Mr. McCabe contends that the Board erred when it denied his petition
for additional compensation allegedly still owed to Dr. Balu for outstanding medical
bills. Specifically, Mr. McCabe alleges that the Board’s denial was a violation of
Delaware law governing the statute of limitations for compensation in workers’
compensation cases. According to Mr. McCabe, there is no statutory authority that
allows the Board to deny payment for services rendered by a medical service provider
unless the claim is time barred. Moreover, Mr. McCabe contends that the Board’s
decision was in error because, according to Mr. McCabe, the decision was not based
on substantial evidence, nor was it supported by the IAB’s rules or established case
law. Rather, Mr. McCabe believes that the Board’s decision was arbitrary and
capricious, as Mr. McCabe believes that he established a prima facie case. Therefore,
the burden was supposedly on Bayside Roofing to rebut Mr. McCabe’s evidence.

As to whether Mr. McCabe had submitted clean claims to Bayside Roofing,
Mr. McCabe believes that Dr. Balu’s testimony was sufficient for the Board to find
that clean claims had been submitted. Thus, according to Mr. McCabe, the Board was
capable of determining amounts still owed to Dr. Balu, by adding up invoices
contained in the Proposed Exhibit. Finally, Mr. McCabe contends that if the Board
required additional evidence to make a decision, then the Board should have asked
for it.

In response, Bayside Roofing contends that Dr. Balu did not provide competent

testimony for the Board to determine what amounts he might still be owed.

Robert McCabe c. Bayside Roofing, Inc.
C.A. No. Kl7A-02-001 WLW
November 15, 2017

According to Dr. Balu, he does not handle billing issues directly. Rather, he has a
separate billing department handle such matters. Therefore, as Dr. Balu’s testimony
was insufficient, Bayside Roofing alleges that Mr. McCabe did not meet his burden
of proof. In addition, Bayside Roofing contends that the Board’s decision to deny Mr.
McCabe’ s claim was proper because Mr. McCabe failed to provide expert testimony
probative of whether or not the disputed medical bills were properly coded. Finally,
in regards to the Board not continuing the case to collect additional evidence, Bayside
Roofing alleges that if Mr. McCabe wanted a continuance, he should have requested
it at the hearing.
STANDARD OF REVIEW

Appellate review of an IAB decision is limited. The Court’s function “is
confined to ensuring that the Board made no errors of law and determining whether
there is ‘substantial evidence’ to support the Board’s factual findings.”3 Substantial
evidence means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”4 The “substantial evidence” standard means
“more than a scintilla but less than a preponderance of the evidence.”5 The Court

“does not weigh the evidence, determine questions of credibility, or make its own

 

3 Bermudez v. PTFE Compouna's, Inc. , 2006 WL 23 82793, at *3 (Del. Super. Aug. 16, 2006).
4 Anchor Motor Freight v. Ciabottom`, 716 A.2d 154, 156 (Del. 1998).

5 Breea'ing v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).

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Robert McCabe c. Bayside Roofing, Inc.
C.A. No. Kl7A-02-001 WLW
November 15, 2017

factual findings.”6 The Court must also give “a significant degree of deference to the
Board’s factual conclusions and its application of those conclusions to the appropriate
legal standards.”7 In reviewing the evidence, the Court must consider the record “in
the light most favorable to the prevailing party below.”8 The Court reviews questions
of law de novo to determine “whether the Board erred in formulating or applying
legal precepts.”9
ANALYSIS

After a thorough review of the record, including the transcript of the hearing
before the Board, the Court finds that the Board committed legal error when it
suppressed the Proposed Exhibit. It is not entirely clear what rule the Board relied
upon in making its’ decision to suppress the Proposed Exhibit. However, as the
parties’ arguments on this issue primarily relied upon whether or not Bayside Roofing
received the Proposed Exhibit, as part of a pre-trial memorandum amendment, thirty
days before the hearing, the Court presumes that IAB Rule 9(B) applies. IAB Rule
9(B)(6)(a) provides, in toto, that:

[e]ither party may modify a Pre-Trial Memorandum at any time prior to
thirty (3 0) days before the hearing, Amending the Pre-Trial

 

6 Hall v. Rollins Leasing, 1996 WL 659476, at *2 (Del. Super. Oct. 4, 1996) (citing Johnson
v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).

7 Bermudez, 2006 wL 23 82793 at *3 (citing 29 Del. C. § 10142(d)).
8 1a

9 Id.

Robert McCabe c. Bayside Roofing, Inc.
C.A. No. Kl 7A-02-001 WLW
November 15, 2017

Memorandum by written notice to the opposing party and the designated
employee of the Department of Labor may be made in accord with this
Rule. If a party objects to an amendment, the party requesting relief
shall file a motion in accord with Rule 8.

There is no indication in IAB Rule 9(B)(6)(a), nor in any other portion of Rule
9, that a party must include a cover letter, that lists or describes included attachments,
with a proposed pre-trial memorandum amendment. Nor is the Court aware of any
other IAB Rule that provides such a requirement. Therefore, the Court finds that it
was improper for the Board to impose such a burden upon Mr. McCabe in regards to
the pre-trial memorandum amendment allegedly mailed on June 10, 2016. The Court
agrees that it may have been helpful to the Board if Mr. McCabe indicated what
attachments were included in the correspondence, but, as no such requirement exists,
the Board erred in its application of IAB Rule 9.

CONCLUSION

As it is necessary for the Board to properly apply its rules to the facts of this
case, the Board’ s decision to suppress the disputed medical bills is REVERSED and
REMANDED with the following stipulations. The Board must consider if:

1. Bayside Roofing received notice of Mr. McCabe’s Pre-Trial Memorandum
Amendment prior to thirty (3 0) days before the hearing, held on December 15, 2016,
in accordance with IAB Rule 9(6)(a);

2. Bayside Roofing properly objected to the proposed amendment in
accordance with IAB Rule 8.

3. The substance of the proposed amendment should be excluded pursuant to

Robert McCabe c. Bayside Roofing, Inc.
C.A. No. Kl7A-02-001 WLW
November 1 5, 2017

the Delaware Rules of Evidence.
IT IS SO ORDERED.

/s/ William L. Witham. Jr.

Resident Judge

WLW/dmh

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