Julie T. Jackson
Decrane Aerospace, Inc.
Date Submitted: August 13, 2013
This is my decision on Julie T. Jackson's appeal of the Industrial Accident Board's dismissal of her Petition to Determine Compensation Due. Jackson worked for Decrane Aerospace, Inc. Jackson alleges that she injured her head, neck, and back when she slipped and fell at work on December 21, 2009. Jackson filed a Petition to Determine Compensation Due on April 15, 2010, but then withdrew it. Jackson filed a second Petition to Determine Compensation Due on December 16, 2011. A hearing was scheduled for April 20, 2012, but was continued for 100 days, per stipulation of the parties, because Jackson had not yet retained a medical expert to testify. A second hearing was scheduled for July 26, 2012. Ten days before the hearing, Jackson requested a continuance of the hearing because she still had not retained a medical expert to testify. Decrane agreed to the request and the Board granted a second 100-day continuance, but stated that any additional continuances "should only be granted upon a finding of both good cause and extraordinary circumstances." The Board also noted that in cases involving an extension beyond 180 days, "the Board is to consider whether remedial action should be taken against the party whose lack of diligence caused the delay, including dismissing the petition or provisionally granting the relief requested." A third hearing was scheduled for November 1, 2012.
At the start of the hearing on November 1, 2012, Jackson orally requested another continuance so that her treating physician, Jay Dave, D.O., a neurologist who had been treating her for about five months and had performed an MRI and EMG on her, could have more time to determine whether he could testify as to whether or not her injuries were related to her accident at work. Decrane objected to the third continuance. The Board denied Jackson's request for a third continuance because, in its opinion, she did not satisfy the requirements of "good cause" and "extraordinary circumstances" as required by 19 Del.C. § 2348(h)(2) and Industrial Accident Board Rule 12. The Board then dismissed Jackson's Petition to Determine Compensation Due because she did not have a medical expert at the hearing who could testify that her injuries were caused by her fall at work. Jackson then filed an appeal with this Court.
STANDARD OF REVIEW
"A discretionary ruling by a trial court or administrative body on a motion for a continuance will not be set aside unless that decision is unreasonable or capricious." Jackson has the burden of proving that the Board's denial of her continuance request was arbitrary or unreasonable.
Jackson argues that the Board erred as a matter of law and fact when it denied her request for a third continuance because when doing so the Board did not first consider the six-factor analysis set forth in Drejka v. Hitchens Tire Service. I have concluded that the decision to grant or deny a continuance request of a hearing before the Board is governed by 19 Del. C. §2348(h) and Industrial Accident Board Rule 12 and not Drjeka. Drjeka dealt with the rules adopted by the Superior Court governing discovery and case management for cases being litigated in that court. 19 Del. C. §2348(h), by its plain and unambiguous language, governs how requests for continuances in matters before the Board are to be handled by the Board. Thus, given that Drjeka dealt with rules for how the Superior Court is to conduct its proceedings and that there is different statutory authority for how the Board is to conduct its proceedings, it would appear that Drjeka is simply not applicable to the matter at hand. Indeed, to apply Drjeka to the matter at issue in this case would require me to completely re-write Section 2348(h). There is no reason for me to do that. Section 2348(h) states:
Requests for continuance may be granted only upon good cause shown by the party requesting the continuance. Good cause shall be set forth in the Rules of Procedure of the Industrial Accident Board. A request for continuance may be granted or denied by the Department. If a party objects to the Department's decision or another party's motion, it may, by motion, seek Board review and the Board shall determine the matter.
(1) With respected to any extension of the 120-day hearing deadline established by subsection (c) of this section, a written motion requesting the continuance shall be filed setting forth the basis for a good cause continuance pursuant to the Rules of Procedure of the Industrial Accident Board which, in the movant's opinion, justify such relief. With respect to such an extension request, the Board shall issue a written order specifying that good cause for such an extension exists under a specific Rule of Procedure of the Industrial Accident Board.
(2) With respect to any request for an extension of a hearing beyond 180 days from the date of the petition, the party seeking the continuance must demonstrate that good cause for such an extension exists under a specific rule of the Industrial Accident Board and extraordinary circumstances exist which warrant the award of such continuance in the interests of justice. If such extension is to be granted, the Board's order shall be accompanied by the following:
a. A specific finding stating that good cause for such an extension exists under a Rule of Procedure of the Industrial Accident Board and stating the reasons why a continuance, rather than the use of other case management measures (including, but not limited to, precluding the presentation of certain witnesses or other evidence by the party responsible for the delay), is necessary in the interests of justice;
b. In any instance where such a continuance is sought by the petitioner, a specific finding that the petitioner has demonstrated that the petitioner has prosecuted its petition with due diligence; and
c. With respect to any party whose lack of diligence caused the need for a continuance, an order of such remedial action as is consistent with Rules of Procedure of the ...