IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SHELINA KIRKLAND,

Claimant-below/Appellant,
C.A. Nl5A-08-003 AML
TERMINIX,

Employer-below/Appellee.

\JA/\./\J\J\J\J\J\J§/

Submitted: March 8, 2016
Decided: June l7, 2016

ORDER
On appeal from a decision of the Industrial Accident Board: AFFIRMED.

This is Shelina Kirkland’s appeal from an August 17, 2015 decision of the
Industrial Accident Board (the "Board"). After a hearing, the Board granted
Terminix’s Petition for Review, terminating Kirkland’s benefits, based on the
Board’s determination that Kirkland’s injuries had resolved fully as of August 6,
2013.

Background and Procedural History
On April 29, 2013, Shelina Kirk1and injured her low back and neck while

working for Terrninix. Her injuries were acknowledged as compensable, and she

received workers’ compensation benefits, including total disability benefits.

On December 12, 2014, Terminix filed with the Board a Petition for Review
(the "Petition") to terminate Kirkland’s receipt of total disability beneflts. A
hearing on the Petition was scheduled for May l5, 2015. In accordance with
Board Rule 9,1 the parties filed a pre-trial memorandum with the Board on
February 24, 2015. Terminix’s medical expert, Dr. Kalamchi, was deposed on
May 12, 2015. Kirkland did not depose any of her experts listed on the pre-trial
memorandum before the May 2015 hearing.

On May l5, 2015, the date of the Board hearing, the parties signed a
stipulation in which Kirkland conceded her "disability has ended" and she "no
longer opposes [Terminix’s] Petition to Terminate her disability benefits."z
Terminix, however, wanted to proceed on the Petition, alleging Kirl<land’s work
injuries had resolved fully.3 Kirkland contended that Terrninix needed to file a
second petition "terminating medical benefits" in order for the Board to consider
that issue.4

Following argument from both sides, the Board decided that the issue of

whether Kirkland’s work injuries had resolved properly was before them.§

   

l State of Delaware IndustrialAccident Board Rules, attached as Ex. B to Terminix’s App. to

Answering Br. (hereinafter cited as "Board Rule(s)" or "Rule(s)").

2 Termination Stip. & Order, attached as Ex. A-18 to Appellant’s App. to Opening Br.

: Tr. 4:6-9, May 15, 2015 hearing, attached as Ex. 9 to Appellant’s App. to Opening Br.

Ia’. 7:12-17.

5 Kirkland v. Terminz`x, No. 1419447, at 14 (Del. I.A.B. Aug. l7, 20l5) (Decision on Petition to
Terminate Benef`its) (hereinafter cited as "I.A.B. Decision, Aug, 17, 2015").

2

the hearing.$o Terminix’s Petition alleged Kirkland physically was able to return to
work.§l The pre-trial memorandum further clarified the issues Terminix was
raising, namely whether Kirkland’s continuing injuries were work-related.§z That
contention reasonably can be read as Terrninix asserting Kirkland’s work injuries
fully had resolved. The Board’s determination that Terminix satisfied Rules 9 and
26 therefore was not clearly erroneous.

Even if I concluded the Board’s interpretation of its Rules was erroneous,
Kirkland’s appeal nevertheless would fail because any error of the Board was
remedied by the 60-day extension to allow additional discovery. lt is "settled in
Delaware that before the Board can consider an issue, the issue must be raised
sufficiently in advance of the hearing to provide the parties notice and an
opportunity to be heard."” This Court has held that: "An issue is before the Board
if it is the subject of a petition submitted to the Board or is appropriately noticed at
the Pretrial Hearing."$‘l Conversely, if a party is not given proper notice of an issue

before the hearing, that issue is not properly before the Board.”

5° Rule 9(13)(6)(@1).

51 Terminix’s App. to Answeri`ng Br. Ex. A.

52 1a Ex. c.

53 Murphy Steel, Inc. v. Brady, 1989 WL l24934, at *2 (Del. Super. Oct. 3, 1989); see also Rule

8(C): "No order involving a matter submitted under this Rule shall be issued by the Board
against the non-moving party until the non-moving party has been given an opportunity to be

heard on the issue."

:: Jeps@n, 2003 wL 22139774, ar *3 (@mphasis added).
1a

ll

For example, in Murphy Steele, Inc. v. Brady, an employer sought to
terminate a claimant’s total disability benefits The employer’s intentions were
reflected in both the pre-trial memorandum and the petition for review. The
claimant, however, neither petitioned the Board for partial disability benef`its, nor
"directly indicate[d] in the Pre-Trial Memorandum that he was entitled to partial
disability benefits."§é This Court held that the "first mention of this [partial
disability beneflts] issue in the opening statement was not sufficient notice," to the
employer and remanded the matter to the Board "so that the Employer is given the
opportunity to disprove partial disability."”

On the other hand, "[i]n proceedings before the Board, it can hardly be
expected that technical niceties of pleading will be observed and, where the
informality thereof works no substantial injustice to the other party, it should not
be allowed to defeat an otherwise meritorious claim."§g For example, in Yellow
Freight System, Inc. v. Berns,w an employer argued that a claimant failed to

mention a certain defense in the pre-trial memorandum. The Board, however, not

:: Mwphy s¢eel, lnc., 1939 wL 124934, ar *3.
Id.

58 Gen. Motors Corp. v. Socorso, 105 A.2d 641, 644 (Del. Super. 1953) (citing Larson’s
Workmen’s Compensation Law 252); see also Conner v. Boulden Buses, Inc., 1993 WL 54493,
at *6 (Del. Super. Feb. 19, 1993) ("[A]n informal tribunal such as the Board may, in appropriate
circumstances, rule on different legal grounds than those presented by the parties if neither party
is clearly prejudiced.").

59 1999 wL 167780(1)@1. super. Mar. 5, 1999)_

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only "chose to hear and consider Claimant’s position," but relied on it.60 This
Court rejected the emp1oyer’s argument, holding that "[w]hile the Boarcl’s
procedural rules are promulgated for ‘more efficient administration of justice,’ this
Court will not force the Board to impose a literal and hyper-technical inteipretation
of the rules where the Board itself has chosen not to do so."""

Kirkland’s appeal elevates form over substance. Kirkland was not "harmed
or misled by any defect in [the] form of the petition."(’z The informality here, if
there was any, cannot defeat an otherwise meritorious claim, especially where
Kirkland elected not to present her case at a later date.

In sum, I find Kirkland suffered no prejudice by the Board’s hearing the
issue on July 6, 2015. Here - unlike in Phillzps where the Board sent no notice at
all to the parties or Murphy Steele where the first mention of the issue was in
opening statements - the Board informed Kirkland of exactly what issue was going
to be contested at the July 6, 2015 hearing, giving her time to depose her expert on
the issue. Kirkland, therefore, was given adequate notice that whether her work
injuries fully had resolved would be addressed at the July 6, 2015 hearing.

Although she argues she would have questioned Dr. Kalamchi in a different

manner had she been aware that the issue of full recovery was going to be heard by

_._.__.1:__,_1.,

16-0_1~01. at *4.
61 Ia'.; see also Socorso, 105 A.Zd at 644.
62 S@c@rs@, 105 A.zd at 644; see also com/ten 1993 WL 54493,

13

the Board, she did not seek to re-depose the doctor in the 60-day window before
the hearing. Moreover, Kirkland offers no explanation for why she presented no
medical expert of her own at the July 6, 2015 hearing.“

Based on the foregoing, l find the Board’s interpretation of their Rules was
not clearly erroneous and the Board was within its discretion in relying on Dr.
Kalarnchi’s opinion and finding that Kirk1and fully recovered from her April 29,

2013 accident. The Board’s August 17, 2015 Decision therefore is AFFIRMED.

IT IS SO ORDERED.

   
   

z  j

  iue-grow, udge

Original to Prothonotary
cc: J0hn J. Ellis, Esquire
Joseph W. Weik, Esquire

63 Appellant’s Opening Br. 6 ("Claimant’s counsel opted not to depose an expert witness prior to
the July 6, 2015 new hearing date.").

14

Specifically, the Board stated:

"[T]he petition that was filed is the appropriate measure
to have the issue of whether [Kirkland’s] condition has
resolved, This is the proper vehicle to have that issue
resolved and just the fact that there is now a concession .

. a late concession that [Kirkland] is no longer totally
disabled, [Terminix] should still have a chance to litigate
that issue of whether the condition has been fully
resolved."6

The Board did, however, continue the case for 60 days to allow Kirkland "a chance
to depose her own doctor on [the] issue"l of whether she recovered from her work
injuries.$ Although Kirkland scheduled her treating chiropractor’s deposition for
June 15, 2015,9 Terminix’s counsel was informed on June 14, 2015 that "they had
elected to cancel the deposition."'o

On July 6, 2015, the parties reconvened to litigate whether Kirkland’s
injuries had resolved fully. At that hearing, Terminix submitted Dr. Kalamchi’s
deposition transcript. Kirkland relied on her own testimony.

On August 17, 2015, the Board issued its decision and concluded the only
issue to decide was "whether the injuries Claimant sustained in the April 29, 2013
work accident have completely resolved."" Based on the record, the Board
granted Terminix’s Petition, determining that Kirkland’s work-related injuries had

6 Tr. 9:4-12, May 15, 2015 hearing, attached as Ex. 9 to Appellant’s App. to Opening Br.
7 1a 9:16_19.

8 LA.B. D@@isi@n, Aug, 17, 2015, ar 15.

9 Tr. 5:19-20, July 6, 2015 hearing, attached as Ex. 10 to Appellant’s App. to Opening Br;.
m Terminix’s Answering Br. 2.

" I.A.B. Decision, Aug, 17, 2015, at 14.

resolved fully as of August 6, 2013.'2 Kirkland appealed the Board’s decision on
August 24, 2015.
The Parties’ Contentions

Kirkland contends that the issue of whether lier work-related injuries had
resolved fully was not properly before the Board and that the Board’s ultimate
decision on that issue therefore "constitutes reversible error because the Board
decided an issue that was not properly placed before it" in violation of its own
Rulesu - specifically, Board Rule 26. That Rule states: "When a petition is
pending before the Board, . . . a party wishing to [inter alia, request to review an
open compensation agreement] must file a formal petition."m

Kirkland argues that Terminix’s pending Petition alleged only that
"Claimant is physically able to return to work," and, therefore, the sole issue on
which the Board could render a determination was whether Kirkland physically
was able to return to work after her April 29, 2013 work injuries.'s She contends

that, under Rule 26, the Board could not consider whether her injuries had resolved

fully unless and until Terminix filed a second petition specifically raising that

'2 1a at 19.
13 Appellant’s Opening Br. 7.
"* 1a ar 7-8 wiring Board Rule 26:
When a petition is pending before the Board, either party may assert an additional

issue but a party wishing to assert one or more of the following issues must file a
formal petition . . .

(l) A request to review an open compensation agreement . . . .).
15 Appellant’s Opening Br. 8.

issue. Because no such petition was filed, Kirkland argues the Board erred in
determining Kirkland’s injuries resolved as of August 6, 2013.'6

Kirkland also argues that whether she received notice of the July 6, 2015
hearing’s subject-matter "sufflciently in advance" of the liearing is irrelevant
because Rule 26 conclusively requires a petition to be flled." Nonetheless,
Kirl<land contends that if notice was relevant, her counsel was not "properly
notified by the [Board] that there would be a hearing on the issue of whether . . .
[her] work related injuries had fully resolved."'g Relying on Phillips v. Delhaize
Amerz`ca, Inc.,lg Kirkland argues that the "Board’s proceedings are governed by
both the requirements of due process and the [Administrative Procedures Act (the
‘APA’)]."ZO Accordingly, the Board must "inform the party of the time, place, and
date of the hearing and the subject matter of the proceedings."zl In Phz'llz`ps, this
Court determined the Board failed to comply with "either due process or the
APA’s notice requirements [since] [t]he Board did not send any notice at all to [the

parties] about what [the Board] intended [to] address at the legal hearing."zz

'6 1a

17 Appellant’s Reply Br. 2.

18 ;g'_?.tjppm‘llant’s Openin§.; Br. 9.

19  WL 2122139,§21¥.***"31 (Del. Super. July 20, 2007) (citing 19 Del. C.§ 230lA (d) and 29
Del. C. § 10161).

20 Appellant’s Openi:a'g_l§r. 8.

21 ld. (citing Phillips, §§31337 WL 2122139, at *2 (citing J.L.B. Corp. v. Delaware A.B.C.C., 1985
WL 189008, at *2 (Del. Super. June 7, 1985))).

22 App@ilanr’s opening Br. 9 (citing Phizhps, 2007 WL 2122139 ar 2).

5

Kirkland further contends that the pre-trial memorandum was not sufficient
notice because Terminix checked off the box indicating that "Claimant’s continued
injuries are not causally related to the accident," which, Kirkland argues, is not the
same as alleging her injuries "completely resolved."23 Lastly, Kirkland argues she
was prejudiced by the Board’s decision because, had she known the Board was
going to consider whether her condition had resolved, her cross-examination of
Terminix’s medical expert "would have been far different and more focused on

that issue."m

Terminix responds that Rule 26 does not require Terminix "to file a second
Petition for Review in order to have the Board address whether [Kirkland’s] work
injuries have resolved."z$ Rather, the "relevant standard is whether an issue has
been raised sufficiently in advance of [the] hearing to provide parties notice and an
opportunity to be heard."% Citing Jepsen v. Universily of Delaware, Terminix
contends: "An issue is properly before the Board if it is the subject of a petition or
included on the Pre-Trial Memorandum.’m Moreover, Terminix argues: "Even if

[Kirkland’s] interpretation of Rule 26 was debatable, the courts generally ‘will not

23 Appellant’s Reply Br. 3.

24 Appellant’s Opening Br. l0.

25 Terminix’s Answering Br. l7.

26 ld. ar 18.

27 Id. (ciring Jepsen v. Unzv_ @fz)el., 2003 WL 22139774, ar *3 (D@l. super. Aug. 28, 2003).

6

force the Board to impose a literal and hyper[-]technical interpretation of the rules
where the Board itself has chosen not to do so."’zg

Terminix asserts that the Board agreed that the pending Petition
encompassed the issue of whether Kirkland’s work injuries fully had resolved.
The Board’s decision was reasonable, Terminix contends, given that Kirkland was
on notice that Terminix intended to terminate her benefits based on the medical
expert opinion that her work injuries had resolved.zg For example, in August 2013,
Dr. Kalamchi opined that Kirkland’s work-related related cervical and lumbar
strains had "resolved."$o Moreover, at the May 15, 2015 hearing, the Board
specifically told Kirkland that the next hearing would address the fully-resolved
issue. Therefore, even if Kirkland was unaware of the issue until the hearing, she
was not prejudiced because, at the very latest, Kirkland was notified by the Board
on May l5, 2015 that there would be a hearing in 60 days.3'

Terminix further argues that "Delaware courts have many times in the past
affirmed Board [d]ecisions finding that a [c]laimant’s condition has returned to

baseline and that the employer is no longer responsible for current problems."”

28 T@rminix’s Arisweriiig Br. 18 (airiiig Yazlaw Fraighr Sys., lna, 1999 WL 167780, ar *4 (Dei.

Super. Mar. 5, l999)).
29 Terminix’s Answering Br. 18-19.
30 Kalamchi Dep. 10:24.

31 Terminix’s Answering Br. l9.
32 1a ar 15 wiring sahrapzar v. Haavy Eqarp. Ramals, 2011 wL 1848896, ar *6 (Dei. Super. Apr,

26, 201l) ("The Board’s decision . . . is supported by substantial evidence that Claimant’s
ongoing symptoms are related solely to his pre-existing condition.")); Cottman v. Burris Fence

.»'4-
f

Terminix contends that Kirkland offered no medical evidence to rebut the fact that
she had a "pre-existing and symptomatic degenerative back condition,"” and that
"Dr. Kalamchi’s testimony constituted substantial evidence for the Board to rely
on"'m in finding that Kirkland’s work injuries fully resolved. Accordingly,
Terminix posits, the Board’s decision should be affirmed
Standard

This Court repeatedly has emphasized its limited role in reviewing the
industrial Accident Board’s decisions: the Court must determine if the Board’s
factual findings are supported by substantial evidence in the record35 and whether
its decision legally was correct.%

"Substantial evidence" is less than a preponderance of the evidence but more
than a "mere scintilla."w lt is "such relevant evidence as a reasonable mind might

"38 The Court must review the record to

accept as adequate to support a conclusion.
determine if the evidence is legally adequate to support the Board’s factual

findings In so doing, the Court evaluates the record in the light most favorable to

Constr., 918 A.2d 338 (Del. 2006) (TABLE) (affirming decision that sprain from work injury
had resolved and any further symptoms were the result of an underlying chronic condition)); see
also Paynter v. Allen Famz'ly Fooa's, C.A. No. SlOA-l2-O03, at 12 (Del. Super. June 14, 201 l) =
("Employer does not carry the burden for the cost of treatment due to a degenerative condition
unrelated to the workplace injury.").

33 Terminix’s Answering Br. 15-16.

3" 1¢1. ar 13,

33 Hzsred v_ E_l. duPom de Nem@urs & C@., 621 A.2d 340, 342 (Del. 1993).

36 mason v. chrysler C@rp., 213 A.zd 64, 66 (Del. 1965).

33 Rzchards@n v. Pemzes, 402 U.s. 389, 401 (1971).

33 Hzsred, 621 A.2d ar 342 wing olney v. Cooch, 425 A_2d 610, 614 (Del. 1931)).

8

the prevailing party to determine whether substantial evidence existed reasonably

to support the Board’s conclusion.39 The Court does not "weigh evidence,

determine questions of credibility or make its own factual findings.""o

Moreover, "an administrative agency’s interpretation of its rules [is]

46

presumptively correct."‘" Generally, judicial deference is given to an

administrative agency’s construction of its own rules in recognition of its expertise

in a given fleld."‘iz Accordingly, "an administrative agency’s interpretation of its

?$743

rules will not be reversed unless ‘clearly wrong. On appeal, the Court reviews

legal issues de )10v0.44

Analysis

Kirkland has not challenged the validity of the Board’s decision that her
work injuries had resolved. The limited issue currently before this Court is
whether that issue properly was before the Board in the first place. For the reasons
set forth below, l find that the Board was within its discretion to determine whether

Kirkland’s work injuries had resolved.

39 Burmudez v. PTFE Compounds, Inc., 2006 WL 2382793, at *3 (Del. Super. Aug. 16, 2006)~
"° olney, 425 A.2d ar 614.

"‘ Dzv. @fs@c. sam v. Bwns, 438 A.2d 1227, 1229 (Del. 1981).

42 1a (citing Dzeb@l¢ ma v. Marshazz, 585 F.zd 1327 (srh cir, 1973)).

43 Burns, 438 A.2d at 1229 (citing Peterson v. Hall, 421 A.2d l350, l353 (Del. Super. l980)).
44 Person-Gaz`nes v. Pepco Hola'z'ngs, Inc., 981 A.2d ll59, 1161 (Del. 2009).

9

The Board Rules applicable here are sufficiently vague so as to require
interpretation by the Board. That interpretation is given great weight45 and unless
"clearly wrong," will not be reversed.% In this case, the Board determined on two
separate dates, and after a change in composition,‘w that the pending Petition, along
with the pre-trial memorandum, sufficiently raised the issue of whether Kirkland’s
work injuries had resolved fully.48 I cannot say that the Board’s interpretation of
its Rules clearly is wrong.

Rule 26 states, in pertinent part, that:

When a petition is pending before the Board, either party
may assert an additional issue but a party wishing to
assert one or more of the following issues must file a

formal petition . . .

(1) A request to review an open compensation
agreement.

For its part, Rule 9 requires that parties complete a pre-trial memorandum before a
Board hearing, which includes a "complete statement of what the petitioner seeks

and alleges."49 The pre-trial memorandum may be amended up to 30 days prior to

45 Rl`ley v. Chrysler Corp., 1987 WL 8273, at *l (Del. Super. Mar. 6, 1987) ("The Board’s
interpretation of its own rule is entitled to great weight."); see also Goldsborough v. New Castle
Counly, 2011 WL 5l736 (Del. Super. Jan. 5,2011).

46 Bams, 438 A.zd ar 1229.

47 Board member Terrence Shannon retired shortly after the May 27, 2015 hearing.

48 sea kirkland v. sMCs Tarminzx, Na. 1419447, ar 2 (D@l. I.A.B. may 27, 2015) (oRDER);
I.A.B. Decision, Aug. l7, 20l5, at l4.

"° Rule 9(13)(5)(1»).

10

