Del. Code 19, § 2348 : Labor — Workers' Compensation — Determination And Payment Of Benefits; Procedure — Hearings; notice of awards; evidence

Current through 2016 Legislative Session, Act 399

(a) In all hearings before the Board, the Board shall make such inquiries and investigations as it deems necessary. Unless otherwise stipulated by counsel and approved by the Department, the hearings shall be held in the Division of Industrial Affairs office nearest the site where the injury occurred or, if the accident occurred out of the State, in any county designated by the Department as convenient for the parties.

(b) In a controversy as to the responsibility of an employer or the employer's insurance carrier for the payment of compensation and other benefits under Part II of this title, any party in interest may petition the Board in writing for a hearing and award. The petition shall be sent to the Department's offices in Wilmington and shall set forth the reason for requesting the hearing and questions in dispute which the applicant expects to be resolved.

(c) The Department shall schedule a hearing by fixing its time and place, subject to review by the Board upon written objection by a party. The notice shall be given in hand or by certified mail, return receipt requested. Hearings pursuant to §§ 2324, 2325 and 2347 of this title shall be heard as expeditiously as practicable, but, absent compliance with subsection (h) of this section, in no case more than 120 days from the date of the notice of pre-trial conference to be issued by the Department. Unless excused for good cause shown, failure of any or all parties in interest to appear at a duly scheduled hearing or to petition for a continuance shall bar such parties from any further action concerning an adverse decision, a decision by default or a dismissal of a petition for hearing and award.

(d) The Superior Court shall, in accordance with such rules as the Court may make, provide for the obtaining of evidence outside of the State to be used in hearings before the Board. Subject to the approval of a hearing officer, the parties in interest in any cause may agree upon different methods of taking such evidence.

(e) Subpoenas provided for in accordance with this chapter shall be effective throughout the State.

(f) Whenever a cause shall be remanded to the Board for a rehearing, all evidence theretofore taken before the Board in a previous hearing or hearings shall become part of the evidence in the hearing upon remand.

(g) In those instances where an expedited hearing is requested, the petition for hearing shall set forth the facts in sufficient detail to support the request for an expedited hearing. If such a request is uncontested, the request shall be granted by the Department. If such a request is contested, the Board shall determine the matter.

(h) Requests for continuance may be granted only upon good cause shown by the party requesting the continuance. Good cause shall be set forth in the Rules of Procedure of the Industrial Accident Board. A request for continuance may be granted or denied by the Department. If a party objects to the Department's decision or another party's motion, it may, by motion, seek Board review and the Board shall determine the matter.

(1) With respect to any extension of the 120-day hearing deadline established by subsection (c) of this section, a written motion requesting the continuance shall be filed setting forth the basis for a good cause continuance pursuant to the Rules of Procedure of the Industrial Accident Board which, in the movant's opinion, justify such relief. With respect to such an extension request, the Board shall issue a written order specifying that good cause for such an extension exists under a specific Rule of Procedure of the Industrial Accident Board.

(2) With respect to any request for an extension of a hearing beyond 180 days from the date of the petition, the party seeking the continuance must demonstrate that good cause for such an extension exists under a specific rule of the Industrial Accident Board and extraordinary circumstances exist which warrant the award of such continuance in the interests of justice. If such extension is to be granted, the Board's order shall be accompanied by the following:

a. A specific finding stating that good cause for such an extension exists under a Rule of Procedure of the Industrial Accident Board and stating the reasons why a continuance, rather than the use of other case management measures (including, but not limited to, precluding the presentation of certain witnesses or other evidence by the party responsible for the delay), is necessary in the interests of justice;

b. In any instance where such a continuance is sought by the petitioner, a specific finding that the petitioner has demonstrated that the petitioner has prosecuted its petition with due diligence; and

c. With respect to any party whose lack of diligence caused the need for a continuance, an order of such remedial action as is consistent with Rules of Procedure of the Board and is just under the circumstances.

Where a petitioner's or respondent's lack of diligence has caused the motion for a continuance, to remedy such lack of diligence and to ensure a speedy, efficient and just resolution of the matter, the Board shall consider dismissing the petition or provisionally awarding the relief sought by the petition.

(i) At such hearing, it shall be incumbent upon all parties to present all available evidence and the Board shall give full consideration to all evidence presented. In addition, the Board may examine all witnesses. If either party or the Board seeks to utilize the medical testimony of an expert, it may do so; provided, that prompt and adequate notice to the opposing party or parties is given. Medical testimony of an expert may be presented by: deposition; by live testimony at the hearing; by telephonic testimony at the hearing; or by videotape.

(j) The Board may recess the hearing to a date certain and direct the parties, or any of them, to provide such further information as may be necessary to decide the matter.

(k) No later than 14 days after a hearing, the Board shall render a written decision that succinctly and clearly states its findings of fact and conclusions of law. To that end, where appropriate, the Board may render a decision at the hearing and read such decision into the record for its incorporation in the hearing transcript. Each Board decision shall be filed among the Board's records and a copy thereof shall be served personally on or sent by certified mail to each of the parties in interest or to the attorneys representing the parties, if such parties are represented by counsel. In any instance where a decision cannot be reached within 14 days, the Board shall provide the parties with a written estimate of when the decision will be rendered. Such additional time shall not exceed an additional 14 days.

Del. C. § 2348

Code 1915, § 3193q; 29 Del. Laws, c. 233; 32 Del. Laws, c. 186, § 3; Code 1935, § 6087; 19 Del. C. 1953, § 2348; 52 Del. Laws, c. 101, § 2; 63 Del. Laws, c. 418, §1; 69 Del. Laws, c. 382, §1; 71 Del. Laws, c. 84, § 16.;