IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE

REBECCA CLARK, )
)
Claimant-Below, )
Appellant, )
)

v. ) C.A. No. N18A-03-004 DCS
)
STATE OF DELAWARE, )
)
Employer-Below, )
Appellee. )

Submitted: November 16, 2018
Decided: March 8, 2019

Motz'on to Exclude-
GRANTED, in part; DENIED, in part.

OPINION

Heather A. Long, Esquire; Attorney for Appellant
William D. Rimmer, Esquire; Attorney for Appellee

STREETT, J.

Introduction

Rebecca Clark (the “Claimant”) filed an Amended Opening Brief on October
18, 2018 appealing the Industrial Accident Board’s (the “Board”) decision following
its October 27, 2017 hearing.l On November 16, 2018, her employer, the State of
DelaWare (the “Employer”) filed a Motion to Exclude Claimant’s Opening Brief (or
in the alternative, Dr. Singman’s deposition and claim of promissory estoppel). I_f
the Court does not grant the Motion to EXclude, Employer requests leave to Amend
its Answering Brief.

The Board hearing addressed Claimant’s Petitions to Deterrnine Additional
Compensation Due seeking findings of compensability for injuries to Clamiant’s
head, neck and left leg; for traumatic brain injury; for a proposed intracranial
pressure monitoring; for periods of total and partial disability; for a February 9, 2015
cervical fusion surgery; and for an October 21, 2015 tethered cord surgery. The
Board declined to re-examine issues involving Whether Employer Was incorrectly
applying medical expenses against Claimant’s credit concerning a February 16, 2016
settlement agreement because that issue had already been addressed in a February

20, 2017 Board Order.

 

1 The IAB Decision (Which consists of 87 pages) Was issued on February 12, 2018.

Parties’ Contentions
In her Opening Brief, Claimant references and relies on the deposition of Dr.
Eric Singman, a neuro optometrist. She also asserts a claim of promissory estoppel.
In its Motion to Exclude, Employer contends that Claimant did not submit Dr.
Singman’s deposition or raise the claim of promissory estoppel below and, as such,
neither can be considered by this Court.

Employer claims that the “[d]eposition was not taken in relation to the Petition
currently at issue, nor was it submitted at the October 27, 2017 [Board] Hearing.”2
Claimant contends that the Board attempted to “refine the parties’ prior agreements”3
and that Dr. Singman’s deposition “provides background and gives context to the
parties’ prior agreements with regard to compensability of Claimant’s injuries.”4 At

Oral Argument, Claimant’s counsel claimed that the Board attempted to alter the

February 16, 2016 settlement agreement in footnote 505 of its decision. Counsel for

 

2 Motion to Exclude Claimant’s Opening Brief, at 5.

3 Claimant’s Response to Motion to Exclude, at 2. [Claimant and Employer reached two settlement
agreements The first agreement (dated August 11, 2015) related to Claimant’s limited period of
total disability, ongoing partial disability, and cervical spine injury. The second agreement (dated
February 16, 2016) related to Claimant’s vision complaints.]

In her Response to the Motion to Exclude, Claimant erroneously writes that the Board attempted
to refine the prior settlements in footnote 80 of its decision. There is no footnote 80 in the Board’s
decision. At Oral Argument, Claimant’s counsel stated that footnote 50 is the correct footnote,
which can be found on page 79-80 of the Board’s decision.

4 Claimant’s Response to Motion to Exclude, at 2.

5 Footnote 50 reads:

Claimant reasoned that because the February 16, 2016 settlement agreement
pertained to Claimant’s vision complaints (examined by Dr. Singman) and
seemingly accepted the substance of Dr. Singmans’ deposition, Dr. Singman’s
deposition provides background to the February 16, 2016 settlement agreement

Claimant also says that the deposition “occur[red] within the context of the

 

Clark v. State of Delaware case6 (however, not submitted at the October 27, 2017
hearing), and as such, became a part of the case record at the time the deposition was
taken.”7 However, at Oral Argument, Claimant’s counsel conceded that the
transcript of Dr. Singman’s deposition was never attached to the record, entered at

the Board hearing, entered at any prior hearing, or referenced by the Board.

 

The Board realizes that Employer accepted a cervical spine injury in some regard;
in the letter memorializing the settlement agreement, Employer appears to only take
issue with payment for the February 2015 surgery, due to the fact that Dr.
Henderson had provided it (an out of state non-certified provider providing
treatment Without preauthorization). Further, if Employer’s arguments are to be
accepted, Employer admits it sought to acknowledge the October 21, 2015 surgery
if it was truly cervical in nature; this also suggests acknowledgement of an ongoing
cervical condition, at least in the 2015 timeframe. The Board points this out
because Employer’s experts’ opinions in the instant case are suggestive that
Claimant’s neck injury, if one existed, was minor and had resolved prior to 2015.
While the Board realizes that these opinions are inconsistent with Employer’s
previous acknowledgements, the Board notes that the burden in this case was
Claimant’s to show that she has an ongoing compensable cervical condition that
required the treatment for which she seeks compensation

6 Claimant is apparently referring to the February 16, 2016 settlement agreement In her Opening
Brief, Claimant explains that Employer agreed to a settlement agreement, relating to Claimant’s
vision treatment, after Dr. Singman’s deposition on February 3, 2016. See Claimant’s Amended
Opening Brief, at 18-19.

7 Claimant’s Response to Motion to Exclude, at 2. (parentheses in the original).

Lastly, Claimant asserts that promissory estoppel was raised below because
her counsel raised the elements of promissory estoppel at the Board hearing.8
Employer contends that Claimant did not raise a promissory estoppel claim “prior to
or at the October 27, 2017 Hearing.”9 Counsel for Employer also argued that
Claimant was required to assert promissory estoppel in her pre-hearing filings to the
Board.

Standard of Review

19 Del. C. § 2350(b) states that “In case of every appeal to the Superior Court
the cause shall be determined by the Court from the record. . .” Accordingly, “[t]he
Court will not consider evidence or issues not properly raised below. Thus, an issue
is Waived if it was not raised below.”‘° This Court has also held that “[t]he appellate
record may include transcripts from related hearings, as well as materials that are
not offered into evidence if the materials were considered by the trial court and are

necessary to the case’s disposition on appeal.”ll

 

8 The elements required for promissory estoppel are:

1) a promise was made; 2) it was the reasonable expectation of the promisor to
induce action or forbearance on the part of the promisee; 3) the promisee reasonably
relied on the promise and took action to his or her detriment; and, 4) such promise
is binding because injustice can be avoided only by enforcement of the promise.
Fanean v. Rite Aid Corp. ofDelaware, Inc., 984 A.2d 812, 822 (Del. Super. Dec. 3, 2009).

9 Employer’s Motion to Exclude, at 5.
10 Nanticoke Homes v. Miller, 2003 WL 22232809, at *fn. 1 (Del. Super. Sept. 29, 2003).

11 Hamz'lton v. Independent Disposal Servz'ce, 2017 WL 631770, at *6 (Del. Super. Feb. 15, 2017).
5

Discussion

Claimant’s argument that Dr. Singman’s deposition is relevant to the current
appeal because the Board attempted to alter the February 16, 2016 vision complaint
settlement agreement in footnote 50 of its decision is without merit. Footnote 50
does not mention the February 16, 2016 settlement agreement, does not discuss
Claimant’s vision complaints, and does not reference a deposition by Dr. Singman.
Instead, footnote 50 discusses the settlement agreement pertaining to Claimant’s
cervical spine injury,12 As such, it does not appear that Dr. Singman’s deposition
has any relevance to the issues discussed in footnote 50.13

At Oral Argument, Claimant conceded that Dr. Singman’s deposition was not
attached to the record below and not entered before the Board. Additionally, there
is nothing in the record that suggests (and Claimant does not assert) that the Board
relied on or considered Dr. Singman’s deposition Therefore, Dr. Singman’s
deposition was not part of the record below and Claimant cannot reference or rely
on it in her Appeal to this Court. Employer’s Motion to Exclude the transcript of

Dr. Singman’s deposition is granted.

 

12 The cervical spine injury settlement agreement occurred on August ll, 2015.

13 Moreover, the August 11, 2015 settlement agreement predated Dr. Singman’s deposition which
took place on February 3, 2016.

However, this Court denies Employer’s Motion to Exclude Claimant’s claim
of promissory estoppel. In its Decision, the Industrial Accident Board Wrote that:

Claimant first argues that Employer had already acknowledged the

compensability of this surgical procedure, evidenced by the August 11,

2015 letter memorializing the parties’ settlement agreement Claimant

maintains that Employer agreed to acknowledge this surgery in the

settlement, and she withdrew her original petition and underwent the

surgery in reliance of this acknowledgement Claimant further argues

that while Employer maintains that the acknowledgement only

regarded what Was thought to be a cervical spine procedure, tethered

cord surgeries are only performed in the lumbar area; thus Employer

knew, or should have known, that the acknowledgement Was for the

procedure that actually took place.14
Additionally, although not specifically characterized as promissory estoppel, the
Claimant raised the issue of reliance on the prior (August 11, 2015) settlement and
asked the Board to enforce the promise. In closing argument, Claimant’s counsel
stated: “I ask the Board to enforce the prior offer of settlement to pay for that
10/21/15 surgery...” 15

Furthermore, Delaware case law holds that failure to include an issue in the
initial petition filed with the Board and/or the pretrial memorandum (as required by

Industrial Accident Board Rule 9) does not constitute a waiver if the issue was

presented to the Board at the hearing.16

 

14 IAB Decision, at 66.
15 IAB Hearing Transcript, at 355.

16 Nanticoke Homes v. Mz`ller, 2003 WL 22232809, at fn. 1 (Del. Super. Sept. 29, 2003) (“Here,
Claimant did not seek compensation for a permanent disability to the leg in the initial petition filed

7

It appears that the elements of promissory estoppel were before the Board and
considered by the Board. As such Claimant did not waive her right to raise the claim
of promissory estoppel in the instant Appeal. Employer’s Motion to Exclude
Claimant’s Opening Brief is denied and Employer’s Motion to Exclude the claim of
promissory estoppel is denied.

Conclusion

For the foregoing reasons, Employer’s Motion to Exclude is GRANTED in
part and DENIED in part Employer’s Motion to Exclude Dr. Singman’s
deposition is GRANTED; Employer’s request for leave to Amend Employer’s
Answering Brief is GRANTED; Employer’s Motion to Exclude the Opening Brief
is DENIED; Employer’s Motion to Exclude the claim of promissory estoppel is
DENIED,

IT IS SO ORDERED.
0&/1»/»@,@¢./£/%4/1

Diane Clarke Streett, Judge

 

with the Board. Nor did Claimant raise this claim in the pretrial memorandum While Claimant’s
actions violate IAB Rule 9, the alleged impairment to the leg was later fairly presented to the Board
at the hearing. Thus, the issue Was raised below and had not been waived.”); Wallace v. Mountaire
Farms, Inc. , 2002 WL 31558080, at *2 (Del. Super. Oct. 1, 2002) (“Here, Employer did not
disclose the forfeiture issue in the pre-trial memorandum Employer also failed to provide notice
to opposing counsel of the forfeiture defense until two days prior to the hearing. While Employer’s
actions violate IAB Rule 9, the forfeiture defense was later presented to the Board. At the hearing,
Employer raised the issue in his opening statement, developed the issue during cross-examination,
and argued the issue in his closing statement Thus, contrary to Claimant’s assertion, the issue was
raised below and had not been waived.”).

