Prima Facie Displacement in Del. Does Not Bar Subsequent Petition for Review

I know the last post we had a bit of fun with the claimant’s name . . .Phil. A. Minion.  Not to be confused with filet mignon.  And on the heels of that little bit of mirth comes an offering from Chris McGarry of Elzufon, Austin & Mondell.  I always love the decisions that come out of Thursday Motion Day.  If you are on Facebook, you know about your Sunday Funday, and your Throwback Thursday . . . I think we ought to give Motion Day some sort of quirky name . . .I will ponder that and get back to you . . . ’cause Thursday Motion Day is just a little too dignified and serious to have fun with . . . .

Anyway, this matter came to the Board on a challenge to the Employer’s Petition for Review, specifically a Motion to Dismiss the PFR based on an IAB decision 3 years earlier which ruled that Claimant was a prima facie displaced worker.  The argument was based on an assertion of res judicata and collateral estoppel, saying that nothing had changed since the previous ruling to allow re-consideration of the Claimant’s right to TTD benefits. 

You know, the old “Once a displaced worker, always a displaced worker . . . .”

The case is Priscilla Stove v. Aramark, IAB Hr’g No. 1258714 (July 23, 2015)(ORDER).  And as I have been having fun with the topic of “names’ lately, I am really loving on this one.  I had this little daydream that I could represent the injured worker and we could be Priscilla Stove and Cassandra Crockpot — wouldn’t that be delicious?

Turning back to our case, here is what Chris had to say:

The Board denied the Claimant’s Motion to Dismiss the Employer’s Petition for Review filed pursuant to Section 2347 on the basis of res judicata and collateral estoppel.  In denying the motion, the Board noted that the only prohibition is that the Employer cannot file the Petition more than once every 6 months.  Citing the appellate court decisions of  Puckett (Supreme Court 1/7/13) and Shively (Superior Court 2/9/10), the Board agreed that res judicata and collateral estoppel flat out do not apply to a Section 2347 petition.  The Board went so far as to say that even if the same medical expert provides testimony at two successive Hearings, the Board still has the discretion to accept the opinion at one Hearing yet reject the same opinion of the same medical expert at the subsequent Hearing, so long as substantial evidence exists to support the Board’s findings.  The principles of res judicata and collateral estoppel only prohibit the Board from reconsidering or revisiting the merits of its previous decision or revisiting the correctness of the prior award.  It does not prohibit the Board from reviewing an Agreement or prior award with a timely Petition filed under 2347.

Side note – the Superior Court in Shively stated that purpose of Section 2347 is to avoid the “crystallizing effects of res judicata and collateral estoppel” and to apply res judicata or collateral estoppel, Section 2347 would be rendered meaningless.  And under Puckett - the Court noted that the mere passage of time in and of itself is new evidence and to allow res judicata  and collateral estoppel to apply to a Sec. 2347 Petition, the Board’s review would be a remarkably one sided affair.

I like this case.  I find the idea of collateral estoppel barring a subsequent Petition for Review after a finding of prima facie displacement to be a rather aggressive and clever idea.  One which doesn’t quite work in light of the above ruling, but I still have to applaud that slightly “outside the box” thinking on the part of Claimant’s counsel.

And to defense counsel Chris McGarry — thank you for sharing.

Irreverently Yours,

Cassandra Roberts