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Clark v. State

Superior Court of Delaware

March 8, 2019

REBECCA CLARK, Claimant-Below, Appellant,
v.
STATE OF DELAWARE, Employer-Below, Appellee.

          Submitted: November 16, 2018

         Motion to Exclude-GRANTED, in part; DENIED, in part.

          OPINION

          Heather A. Long, Esquire; Attorney for Appellant

          William D. Rimmer, Esquire; Attorney for Appellee

          Diane Clarke Streett, Judge

         Introduction

         Rebecca 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.[1] 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 Brief.

         The 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.

         Parties' Contentions

         In her 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 this Court.

         Employer 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."[2]Claimant contends that the Board attempted to "refine the parties' prior agreements"[3]and that Dr. Singman's deposition "provides background and gives context to the parties' prior agreements with regard to compensability of Claimant's injuries."[4] At Oral Argument, Claimant's counsel claimed that the Board attempted to alter the February 16, 2016 settlement agreement in footnote 50[5] 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.

         Claimant also says that the deposition "occur[red] within the context of the Clark v. State of Delaware case[6] (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."[7] 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.

         Lastly, Claimant asserts that promissory estoppel was raised below because her counsel raised the elements of promissory estoppel at the Board hearing.[8]Employer contends that Claimant did not raise a promissory estoppel claim "prior to or at the October 27, 2017 Hearing."[9] Counsel for Employer also argued that Claimant was required to assert promissory estoppel in her pre-hearing filings to the Board.

         Standard ...


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