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McCabe v. Bayside Roofing, Inc.

Superior Court of Delaware, Kent

November 15, 2017

ROBERT McCABE, Claimant-Below, Appellant,
v.
BAYSIDE ROOFING, INC., a Delaware corporation, Employer-Below, Appellee.

          Submitted: August 1, 2017

         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.

          ORDER

          WILLIAM L. WITHAM. JR. RESIDENT JUDGE.

         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 Roofing. Mr. McCabe was treated by several doctors for injuries, including Dr. Balu.

         On April 11, 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. 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 (hereinafter, 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."[1] 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 10, 2016 merely references a close [indiscernible] finding amendment to the petition. There's nothing there referencing the inclusion of- - of the medical ...

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