SUPERIOR COURT
OF THE

STATE OF DELAWARE

E. SCOTT BRADLEY 1 The Circle, Suite 2
JUDGE GEORGETOWN, DE 19947
TELEPHONE (302) 856-5256

June 26, 2019

Michael G. Owen, Esquire John J. Ellis, Esquire

Morris James, LLP Heckler & Frabizzio

803 North Broom Streeet 800 Delaware Avenue, Suite 200
P.O. Box 2328 P.O. Box 128

Wilmington, DE 19899-2328 Wilmington, De 19899-0128

Re: Donna Freebery v. Law Firm of Michael Freebery
Civil Action No. S18A-10-001 ESB

Dear Counsel:

Appellant Donna Freebery (“Freebery”) is employed by the Appellee, The
Law Firm of Michael Freebery (the “Employer”). Michael Freebery is Donna’s
husband. On February 19, 2016, Freebery allegedly suffered a low back injury
while moving a box of files at the Employer’s office. She filed a Petition to
Determine Compensation Due with the Industrial Accident Board (the “Board”) on
January 9, 2018. The Board denied Freebery’s petition and she has appealed.

Freebery raises three main issues on appeal. First, she argues that it was an
error of law or abuse of discretion for the Board to allow the Employer to contest
compensability of the alleged injury at the hearing. Second, that it was an abuse of

discretion for the Board to reject her implied agreement argument on procedural
grounds. Third, that the Board abused its discretion by failing to view certain
statements as “judicial admissions” to compensability attributable to the Employer.

I have determined that the issue of compensability was properly before the
Board. I also find that it was not an abuse of discretion for the Board to reject the
implied agreement argument as untimely. Finally, none of the statements that
Freebery calls attention to can fairly be deemed “judicial admissions” in the current
case,

Factual and Procedural Background

On February 19, 2016, Freebery allegedly suffered a low back injury while
moving a box of files at the Employer’s office. The workers’ compensation
insurance carrier for the Employer paid for a majority of Freebery’s treatment
following this incident. Seeking a written agreement formally acknowledging her
injury, Freebery filed a Petition to Determine Compensation Due on January 9,
2018. Freebery was also seeking payment of medical expenses in the amount of
$842.86 and a week of wage benefits of approximately $533.00.

The parties submitted a joint Pre-Trial Memorandum (the “PTM”) to the
Board on March 27, 2018. The PTM asks if compensability of the injury was
admitted. Freebery answered “Yes” and the Employer added “not as to any

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ongoing work injury.”” The PTM also includes a section for the Employer to

 

*Employer’s Answering Br. (“Answering Br.”), Ex. A.
? Freebery’s Opening Br., Ex. J.
identify defenses to a claim. The Employer checked several options, including one
alleging that, “claimant’s injuries are not causally related to the accident.”

The Board conducted its hearing on June 18, 2018 (the “Hearing’”’). At the
start of the Hearing, the parties submitted a Joint Stipulation of Facts. In the Joint
Stipulation, the parties identified the witnesses that would be called and the issues
that the Board was being asked to determine.’ Although not mentioned in the PTM
or listed on the Joint Stipulation, Freebery indicated that she might later raise an
implied agreement argument during her opening statement. The Employer pointed
out the potential untimeliness of such an argument but acknowledged that it had
been made aware of this possibility on the day before the Hearing.

The Board’s Decision, dated July 31, 2018, denied Freebery’s Petition and
found that she had failed to prove that a work accident occurred on February 19,
2016. In making this determination, the Board made clear that it found the
Employer’s expert witness to be more persuasive than Freebery’s. In response to
the Employer’s Rule 21 motion for clarification the Board stated that it declined to
consider Freebery’s implied agreement argument as it was untimely and

improperly raised.°

 

* Answering Br., Ex. F.
‘Id., Ex. B.
°TId., Ex. H.
Freebery has appealed the Board’s denial of her initial Petition to Determine
Compensation Due as well as its subsequent clarifying order. The parties have
fully briefed their arguments and submitted them for my consideration.

Contentions of the Parties

Freebery asserts that the Employer admitted compensability on the Pre-Trial
Memorandum (the “PTM”) and the Board therefore erred by allowing the
Employer to contest compensability at the Hearing. Additionally, Freebery argues
that the Board’s rejection of her implied agreement argument as untimely was an
abuse of discretion given the Board’s decision to allow the Employer to contest
compensability. Finally, Freebery claims that the Board erred by failing to
properly consider various “admissions” by the Employer with regard to
compensability.

The Employer contends that compensability was not admitted on the PTM
and that Freebery was well aware that compensability would be the primary issue
at the Hearing. The Employer continues by pointing out that Freebery had ample
opportunity to raise her implied agreement argument prior to the Hearing but failed
to do so. The Employer also asserts that Freebery did not seriously or fully present
this argument during the Hearing. Lastly, the Employer argues that the Board’s
decisions are supported by substantial evidence and that there were no

compensability admissions fairly attributable to the Employer.
Standard of Review

Upon review of a decision of the Industrial Accident Board this Court
examines the record for any errors of law and determines whether substantial
evidence exists to support the Board’s findings.° “Substantial evidence” is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’ The Court defers to the Board and does not weigh evidence,
determine credibility, or make any factual findings.* Errors of law are reviewed de
novo. Absent error of law, the standard of review for a Board’s decision is abuse
of discretion.’ Only decisions that exceed the “bounds of reason” in light of
circumstances constitute an abuse of discretion.’

Discussion

I must make a determination on three main issues. The first issue is whether
the Board committed an error of law or abused its discretion in allowing the
Employer to contest compensability at the Hearing. The second issue is whether
the Board committed an abuse of discretion in rejecting Freebery’s implied
agreement argument as untimely. The last issue is whether the Board’s failure to

consider certain statements and other evidence as judicial admissions of

 

* Histed v. EI Dupont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993).

” Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).

* Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).

* Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009).
10 Td.
compensability on behalf of the Employer was an abuse of discretion. I address
each of these arguments in turn.
1. Compensability as an issue at the Hearing.

Freebery repeatedly asserts that the Employer admitted to compensability on
the PTM and that the Board should therefore have prohibited it from contesting
compensability at the Hearing. Freebery builds much of her accompanying
arguments upon this premise. However, I read the PTM differently. The PTM
asks if compensability is admitted, to which Freebery’s counsel answered “Yes.”"'
This only shows that, at the time they filled out the PTM, Freebery and her counsel
apparently believed that compensability was a nonissue. I do not view this as an
admission to compensability on behalf of the Employer. Next to Freebery’s
answer, the Employer’s counsel added, “not as to any ongoing work injury.”
Additionally, in the section for defenses to the petition, the Employer’s counsel
checked several options, most notably one alleging that, “claimant’s injuries are
not causally related to the accident.”'? I find that the Employer’s additions to the
PTM make it clear that it intended to contest the compensability of the alleged
accident at the Hearing.

Furthermore, I believe that the actions and statements made by Freebery’s

counsel leading up to the Hearing indicate awareness that compensability would be

 

4 Opening Br., Ex. J.
12 Id.
contested. This is most clearly shown by the parties’ Joint Stipulation of Facts for
the Hearing. The Joint Stipulation listed the “Issues To Be Determined” as the
following:

A. Was there a work accident/injury on February 19, 2016;

B. If there was a 2/19/16 work accident/injury, is the injury ongoing

or has it resolved/returned to baseline prior to hearing;
C. Whether the claimed period of total disability from August 15,
2017 through August 22, 2017 was causally related to the alleged
February 19, 2016 work accident/injury;
D. Whether outstanding medical bills are causally related to the
alleged work accident/injury.’°
In light of the above I fail to see how Freebery can fairly claim that the Employer’s
intention to contest compensability at the Hearing came as a surprise.

I also note that Freebery did not explicitly object to the Board’s
consideration of the compensability issue on procedural grounds during the
Hearing. Freebery contends that her attempts to draw the Board’s attention to the
“admission” to compensability on the PTM should have made it clear that she
objected to the Employer’s ability to contest the issue. This argument fails for two
reasons. First, I have already found that Freebery’s interpretation of the PTM as an
admission of compensability is incorrect. Second, it is well established law in

Delaware that an objection must be made at an administrative hearing or it is

deemed waived on appeal.'* For all of the foregoing reasons, I find that the Board

» Hearing Joint Ex. #1.
“ Standard Distrib., Inc. v. Hall, 897 A.2d 155, 157 (Del. 2006).

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did not commit an error of law or abuse its discretion by allowing the Employer to
contest compensability of the alleged accident at the Hearing.
1. Timeliness of implied agreement argument.

Freebery’s main argument on this issue is that the Board’s rejection of her
implied agreement argument shows an impermissible double standard given that it
allowed the Employer to contest compensability at the Hearing. This comparison
fails as I have already determined that the compensability issue was properly
before the Board.

As a standalone matter, I agree with the Board’s determination that
Freebery’s implied agreement argument was untimely. Freebery did not raise the
implied agreement argument in either the PTM or in the Joint Stipulation of Facts.
In her opening statement, Freebery mentioned that she “may” or “may not” raise
the issue of the existence of an implied agreement. The Employer objected to this
argument as being improperly raised. The record indicates that Freebery’s counsel
informed the Employer’s counsel that the implied agreement argument might be
raised at the Hearing on the day before the Hearing. While this may not
technically qualify as a last-minute surprise, such notice is certainly unfair to the
Employer. Importantly, notice of this argument came after the point where the
Employer could address it in the discovery process and through depositions of the

relevant parties. Accordingly, J find that the Board’s determination that the
implied agreement argument was improperly raised was not an abuse of discretion.
This holding is consistent with other Delaware cases addressing procedural flaws
with arguments before the Board."°

2. The Employer’s alleged judicial admissions of compensability.

Freebery points out several different statements and pieces of evidence that
she contends should have been viewed as judicial admissions of compensability.
“Judicial admissions” are voluntary and knowing concessions of fact made by a
party during judicial proceedings (e.g., statements contained in pleadings,
stipulations, depositions, or testimony; responses to requests for admissions; and
counsel’s statements to the court).’° The first alleged judicial admission is the
Employer’s “admission” to compensability on the PTM. This argument fails as I
have already determined that the Employer actually contested — and did not admit
to — compensability on the PTM.

Donna Freebery next argues that the statements of Michael Freebery with
regard to compensability should have been considered judicial admissions made by

the Employer. Normally, a business owner’s statements could fairly be held out as

 

's See Feralloy Indus. v. Wilson, 1998 WL 442937 (Del. Super. June 23, 1998)
(holding that employer did not properly raise a statute of limitations defense when
it first mentioned the defense in its closing argument); Warren v. Amstead Indus.,
Inc., 2019 WL 1780799 (Del. Super. Apr. 23, 2019) (holding that the
determinative issue of whether claimant had retired was improperly raised as it was

not mentioned in any pretrial documents).
‘© Merritt v. United Parcel Serv., 956 A.2d 1196, 1201 (Del. 2008).

9
binding on the business and the business’s insurance carrier. However, I agree
with the Employer that this would be unfair in the current case given that the
business owner is the husband of the claimant. Michael Freebery did not testify on
the behalf of the Employer but rather in support of Donna Freebery.

Finally, Freebery claims that documents she submitted into evidence from
State Farm regarding payments made in relation to the accident should have been
deemed judicial admissions. Unfortunately, this argument goes to the merits of
Freebery’s attempted implied agreement argument. As previously discussed, the
Board correctly determined that this argument was improperly raised and could not
be considered. Moreover, the documents, whether or not they were from State
Farm, cannot reasonably be deemed to be statements made during judicial
proceedings and are therefore, by definition, not judicial admissions.

Conclusion

I have found that the Board did not commit legal error or abuse its discretion
in considering the Employer’s arguments with regard to compensability at the
Hearing or in rejecting Freebery’s implied agreement argument as untimely. The
Board’s decision is hereby AFFIRMED.

Very truly yours,
E. Scott Bradley
cc: Prothonotary

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