Submitted: November 16, 2018
to Exclude-GRANTED, in part; DENIED, in part.
Heather A. Long, Esquire; Attorney for Appellant
William D. Rimmer, Esquire; Attorney for Appellee
Clarke Streett, Judge
Clark (the "Claimant") filed an Amended Opening
Brief on October 1 8, 201 8 appealing the Industrial Accident
Board's (the "Board") decision following its
October 27, 2017 hearing. 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). If the Court does not grant the Motion
to Exclude, Employer requests leave to Amend its Answering
Board hearing addressed Claimant's Petitions to Determine
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 oftotal 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.
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
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."Claimant contends
that the Board attempted to "refine the parties'
prior agreements"and that Dr. Singman's deposition
"provides background and gives context to the
parties' prior agreements with regard to compensability
of Claimant's injuries." At Oral Argument,
Claimant's counsel claimed that the Board attempted to
alter the February 16, 2016 settlement agreement in footnote
of its decision. Counsel for 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.
also says that the deposition "occur[red] within the
context of the Clark v. State of Delaware
(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." 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.
Claimant asserts that promissory estoppel was raised below
because her counsel raised the elements of promissory
estoppel at the Board hearing.Employer contends that Claimant
did not raise a promissory estoppel claim "prior to or
at the October 27, 2017 Hearing." Counsel for
Employer also argued that Claimant was required to assert
promissory estoppel in her pre-hearing filings to the Board.