Superior Court grants motion to dismiss claimant’s pro se appeal as untimely and finds the Board’s decision dismissing claimant’s petition based on the two-year statute of limitations was based on substantial evidence and contained no errors of law.
The claimant alleged she was injured at a work event on July 25, 2017, while at a meeting, during which she got upset, had trouble speaking and developed a headache. The next day, the claimant went to the emergency room and was advised she needed immediate surgery, which took place shortly thereafter. In April 2018, the claimant notified her employer that she considered her condition to be work-related. She was notified by her employer’s insurance carrier by way of three different letters that the claim was not accepted and also advising her of the two-year statute of limitations.
The claimant was initially represented by counsel, and on September 13, 2018, a DCD Petition was filed but then later withdrawn without prejudice. A second petition was filed again with counsel on March 20, 2019, which was likewise withdrawn without prejudice. Later, on October 22, 2020, the claimant, who was then proceeding pro se, filed a DCD Petition that was substantially similar to the first two petitions. The employer moved to dismiss the 2020 petition on the basis of the two-year statute of limitations in Section 2361(a) of the Act because the petition was filed more than two years from the date of the alleged injury. The Board issued a decision on March 11, 2021, granting the employer’s motion to dismiss and finding that the claimant’s petition was untimely. That decision was mailed to the claimant on March 15, 2021. The claimant then filed an appeal to the Superior Court, but not until April 23, 2021. The employer moved to dismiss that appeal as being untimely.
Section 2349 of the Act is the controlling statute and provides that a Board decision shall be final unless within 30 days of the date when the decision is mailed to the parties it is appealed to the Superior Court. The court noted that, on the face of the appeal and the attachments, it was clearly untimely since the Board’s decision was issued on March 11, 2021, was mailed to the parties on March 15, 2021, and the appeal was not filed until April 23, 2021. The claimant contended that she had spoken with someone in the Superior Court’s office for clarification of the appeal deadline and was told that the deadline is “however you understand it to be.” The court held that this did not constitute a default by a clerk to extend the time to file an appeal and, therefore, since claimant filed her appeal from the Board’s decision eight days after the appeal period had run, it was time barred.
The court further went on to find that, even assuming the appeal was timely filed, the Board’s decision dismissing the DCD Petition as untimely was supported by substantial evidence and free from legal error. On this issue, Delaware law is clear that filing timely petitions and their later withdrawals does not extend the statute of limitations for a subsequently, untimely filed petition. The court noted that while it was sympathetic to the claimant’s plight, they were duty bound to apply the laws that exist, which in this case means that the withdrawal of the second DCD Petition without a third being timely filed was fatal to the claimant’s case. That is, because the claimant’s third petition was not filed until October 2020, it was well beyond the two-year period and, therefore, time barred.
What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.