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Freebery v. Law Firm of Michael Freebery

Superior Court of Delaware

June 26, 2019

Donna Freebery
v.
Law Firm of Michael Freebery

          Michael G. Owen, Esquire Morris James, LLP

          John J. Ellis, Esquire Heckler & Frabizzio

         Dear Counsel:

         Appellant Donna Freebery ("Freebery") is employed by the Appellee, The Law Firm of Michael Freebery (the "Employer"). Michael Freebery is Donna's husband. On February 19, 2016, Freebery allegedly suffered a low back injury while moving a box of files at the Employer's office. She filed a Petition to Determine Compensation Due with the Industrial Accident Board (the "Board") on January 9, 2018. The Board denied Freebery's petition and she has appealed.

         Freebery raises three main issues on appeal. First, she argues that it was an error of law or abuse of discretion for the Board to allow the Employer to contest compensability of the alleged injury at the hearing. Second, that it was an abuse of discretion for the Board to reject her implied agreement argument on procedural grounds. Third, that the Board abused its discretion by failing to view certain statements as "judicial admissions" to compensability attributable to the Employer.

         I have determined that the issue of compensability was properly before the Board. I also find that it was not an abuse of discretion for the Board to reject the implied agreement argument as untimely. Finally, none of the statements that Freebery calls attention to can fairly be deemed "judicial admissions" in the current case.

         Factual and Procedural Background

         On February 19, 2016, Freebery allegedly suffered a low back injury while moving a box of files at the Employer's office. The workers' compensation insurance carrier for the Employer paid for a majority of Freebery's treatment following this incident. Seeking a written agreement formally acknowledging her injury, Freebery filed a Petition to Determine Compensation Due on January 9, 2018. Freebery was also seeking payment of medical expenses in the amount of $842.86 and a week of wage benefits of approximately $533.00.[1]

         The parties submitted a joint Pre-Trial Memorandum (the "PTM") to the Board on March 27, 2018. The PTM asks if compensability of the injury was admitted. Freebery answered "Yes" and the Employer added "not as to any ongoing work injury."[2] The PTM also includes a section for the Employer to identify defenses to a claim. The Employer checked several options, including one alleging that, "claimant's injuries are not causally related to the accident."

         The Board conducted its hearing on June 18, 2018 (the "Hearing"). At the start of the Hearing, the parties submitted a Joint Stipulation of Facts. In the Joint Stipulation, the parties identified the witnesses that would be called and the issues that the Board was being asked to determine.[3] Although not mentioned in the PTM or listed on the Joint Stipulation, Freebery indicated that she might later raise an implied agreement argument during her opening statement. The Employer pointed out the potential untimeliness of such an argument but acknowledged that it had been made aware of this possibility on the day before the Hearing.

         The Board's Decision, dated July 31, 2018, denied Freebery's Petition and found that she had failed to prove that a work accident occurred on February 19, 2016.[4] In making this determination, the Board made clear that it found the Employer's expert witness to be more persuasive than Freebery's. In response to the Employer's Rule 21 motion for clarification the Board stated that it declined to consider Freebery's implied agreement argument as it was untimely and improperly raised.[5]

         Freebery has appealed the Board's denial of her initial Petition to Determine Compensation Due as well as its subsequent clarifying order. The parties have fully briefed their arguments and submitted them for my consideration.

         Contentions of the Parties

         Freebery asserts that the Employer admitted compensability on the Pre-Trial Memorandum (the "PTM") and the Board therefore erred by allowing the Employer to contest compensability at the Hearing. Additionally, Freebery argues that the Board's rejection of her implied agreement argument as untimely was an abuse of discretion given the Board's decision to allow the Employer to contest compensability. Finally, Freebery claims that the Board erred by failing to properly consider various "admissions" by the Employer with regard to compensability.

         The Employer contends that compensability was not admitted on the PTM and that Freebery was well aware that compensability would be the primary issue at the Hearing. The Employer continues by pointing out that Freebery had ample opportunity to raise her implied agreement argument prior to the Hearing but failed to do so. The Employer also asserts that Freebery did not seriously or fully present this argument during the Hearing. Lastly, the Employer argues that the Board's decisions are supported by substantial evidence and that there were no compensability admissions fairly attributable to the Employer.

         Standard of Review

         Upon review of a decision of the Industrial Accident Board this Court examines the record for any errors of law and determines whether substantial evidence exists to support the Board's findings.[6] "Substantial evidence" is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[7] The Court defers to the Board and does not weigh evidence, determine credibility, or make any factual findings.[8] Errors of law are reviewed de novo. Absent error of law, the standard of review for a Board's decision is abuse of ...


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