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Failing v. State

Superior Court of Delaware

February 25, 2019

REBECCA FAILING, Employee-Below, Appellant,
STATE OF DELAWARE, Employer-Below, Appellee.

          Submitted: December 3, 2019

         Upon an Appeal from the Decision of the Industrial Accident Board Affirmed.

          Walt F. Schmittinger, Esquire and Candace E. Holmes, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorneys for Appellant.

          Benjamin K. Durstein, Esquire of Marshall Dennehey Warner Coleman & Goggin, Wilmington, Delaware; attorney for Appellee.


          William L. Witham. Jr., Resident Judge


         Appellant Rebecca Failing ("Appellant") appeals from an adverse decision by the Delaware Industrial Accident Board ("the IAB" or "the Board") in favor of the State of Delaware ("the State"). The Appellant suffered injuries in a work accident and as a result required treatment from specialists at the University of Pennsylvania, located in Philadelphia, Pennsylvania.

         Despite being reimbursed $761.20 for mileage over a ten-month period, the Appellant requested an additional reimbursement of $114.75 for tolls and parking expenses and was denied by the Board. The IAB found that pursuant to section 2322(g), the Appellant could only be reimbursed with mileage related to travel for treatment. The Board opined that if the Legislature intended for tolls and parking to qualify for reimbursement, it must amend section 2322(g) because the IAB did not have authority to read language into a clear and unambiguous statutory provision.

         After consideration of the parties' arguments and the record, the Court finds that the Board's decision is free from legal error regarding its interpretation and application of 19 Del. C. § 2322(g). Therefore, for the forthcoming reasons, the Board's decision is AFFIRMED.


         The Appellant sustained an injury to her right knee in a work accident on October 4, 2016. As a result, Ms. Failing sought medical treatment from specialists at the University of Pennsylvania in Philadelphia, Pennsylvania.

         Over a ten-month period the Appellant made numerous commutes to Philadelphia and incurred travel expenses, including mileage, tolls, [1] and parking. Pursuant to Section 2322(g) of Title 19 of the Delaware Code, the State's insurance carrier agreed to and reimbursed the Appellant for mileage associated with her commutes that amounted to $761.20. However, the provider declined to reimburse for the Appellant's costs associated with tolls and parking that amounted to $ 114.75. The provider informed the Appellant that only mileage was compensable for travel to and from medical appointments pursuant to section 2322(g).

         On or about March 5, 2018, the Appellant filed a motion with the Board seeking reimbursement for fees associated with tolls and parking. A hearing was held on April 11, 2018 and the Board issued its order on June 11, 2018 denying the motion. Despite the Board's assertion echoing the parties view that the request for reimbursement for tolls and parking was not in itself unreasonable, the Board found that the Appellant was not entitled to reimbursement pursuant to section 2322(g) because that subsection did not explicitly provide for tolls and parking.[2]

         As a result of the Board's decision, the Appellant timely filed a notice of appeal regarding the IAB's denial on July 3, 2018.


         The Appellant contends that although section 2322(g) does not specify that tolls or parking expenses are compensable, those expenses are implicit pursuant to Mosley v. Bank of Delaware[3] and in accordance with the Legislature's purpose to construe the Workers' Compensation Act ("the Act") liberally.[4] The crux of the Appellant's argument is that the IAB failed to act on implicit authority granted pursuant to the Act because of the Board's mistaken belief that it could not grant reimbursement for tolls and parking incurred during commutes to Philadelphia.[5]

         The State, in opposition, contends that the Board correctly applied section 2322(g) and that their decision is free from legal error.[6] The State argues that the Appellant asks the Court to find ambiguity in section 2322(g) where none exists, and thus create new liability on employers that is not based in the Act or Delaware law."[7]The State further asserts that any interpretation of an expanded, implicit right to traveling expenses beyond mileage ignores the fundamental rules of statutory interpretation and construction and would expand the Act in a way that is only reserved to the Legislature, namely, by passing an amendment or enactment.[8]


         The Court's appellate review of an IAB decision is limited. In an IAB appeal, the Court must determine whether the Board's decision is supported by substantial evidence[9] and is free from legal error.[10] The Court "does not sit as a trier of fact with authority to weigh the evidence, determine questions of credibility, and make its own factual findings and conclusions."[11] The Court reviews questions of law, such as the construction of the Act, de novo[12]


         This appeal is based on the Appellant's assertion that the IAB's decision was in legal error regarding its interpretation and application of 19 Del. C. § 2322(g).

         A. The Law of Statutory Construction in Delaware

         The Court precedes its analysis of the Board's interpretation of section 2322(g) by reviewing the general standards of statutory construction in Delaware.

         In the event the Court is faced with a question of statutory interpretation and construction, as in the present appeal, the Court "must seek to ascertain and give effect to the intention of the Legislature as expressed in the Statute itself."[13] The Court presumes the Legislature inserted all statutory provisions for a useful purpose and construction.[14] Where a provision is expressly included in one section of a statute, but is omitted from another, it is reasonable to assume that the Legislature was aware of the omission and intended it."[15] The Court does, and may not, assume that any such omission was the result of oversight.[16] In these instances, the Court may not substitute its own language in a statute when it has been clearly excluded by the Legislature."[17]

         The Court interprets statutory words by commonly understood meanings.[18] If the language is unambiguous, then the word's plain meaning controls[19] and no further statutory interpretation or construction is necessary.[20] If, however, any ambiguity exists, then the Court is authorized to exercise its judicial discretion to construe the language according to general standards of statutory interpretation.[21]

         B. Section 2322(g) is Clear and Unambiguous - IAB's Decision was Free from Legal Error

         The Appellant asserts that section 2322(g) should be read in conjunction with sections 2243 and 2253 and that to interpret 2322(g) as not including tolls and parking would fly in the face of the Legislature's purpose to construe the Act liberally. The Court is not persuaded by the Appellant's argument because section 2322(g) is clear and unambiguous concerning mileage being the only authorized and compensable reimbursement available under the section. As a result, the Board's decision will be affirmed.

         The Act was passed for the benefit of employees who are injured during the course and scope of their employment.[22] Any existing employee compensation right(s) under the Act, must be stated either explicitly or implicitly within the framework of the Act.[23] If any reasonable doubts are present regarding an explicit or implicit right, the Court will liberally interpret the Act "to resolve any reasonable doubts in favor of the worker"[24] and to avoid mischievous or absurd results.[25] As will be demonstrated below, section 2322(g) contains no reasonable doubts, and thus, the Court is not required to liberally interpret this section of the Act.

         I. The cause and purpose behind the amendment adding 2322(g).

         Our Supreme Court has established that 19 Del. C. § 2322 defines services employers are required to provide to their injured employees.[26] When section 2322 was initially signed into law however, subsection (g) was not included. In 1999, that changed.

         The Delaware General Assembly, in response to an IAB decision ruling that insurance carriers were no longer obligated to pay mileage expenses for individuals who were required to travel for medical services, amended section 2322 by adding subsection (g).[27] The Legislature's clear intent was to correct inequality caused by the IAB ruling.[28] Their solution, codified by subsection (g), mandated a requirement that bound insurance carriers to reimburse injured employees with a reasonable mileage expense, based upon the [State of Delaware][29] mileage reimbursement rate.[30] Since 1999, 19 Del. C. § 2322(g) has provided that:

[a]n employee shall be entitled to mileage reimbursement in an amount equal to the State specified mileage allowance rate in effect at the time of ...

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