Submitted: August 1, 2017
Appeal From the Decision of the Industrial Accident Board.
Reversed and Remanded
F. Schmittinger, Esquire of Schmittinger & Rodriguez,
P.A., Dover, Delaware; attorney for the Appellant.
J. Ellis, Esquire of Heckler & Frabizzio, Wilmington,
Delaware; attorney for the Appellee.
J. Cleary, Esquire of the Department of Justice, Wilmington,
Delaware; attorney for the Industrial Accident Board.
WILLIAM L. WITHAM. JR. RESIDENT JUDGE.
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
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.
AND PROCEDURAL BACKGROUND
underlying case involves Mr. McCabe's workers'
compensation claim, in which the following facts are not in
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.
April 11, 2016, Mr. McCabe filed a Petition for Additional
Compensation Due to Injured Employee seeking payment for
medical bills associated with his injuries.
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." 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.
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 ...