Merritt v. United Parcel Service

Timothy Merritt appeals from a Superi- or Court judgment affirming a decision of the Industrial Accident Board (the “Board”) to terminate disability benefits paid to Merritt by his employer, United Parcel Service (“UPS” or “Employer”). On appeal, Merritt claims that the Superi- or Court erroneously upheld the Board’s decision, which in turn was erroneous because the Board: (1) failed to give conclusive effect to UPS’s admission of liability; and (2) prospectively determined an issue not before the Board, by finding that Merritt’s partial disability would end on a specific future date. Because we conclude that Merritt’s first claim of error is meritorious and reverse on that ground, we do not reach Merritt’s second claim.

FACTS 1

On May 16, 2005, Merritt, who worked as a laborer for UPS, herniated a disc in *1198 his lower back while lifting boxes off a conveyor belt. Merritt continued working at UPS with physical restrictions until September 13, 2005, when his persistent pain and numbness became severe. As a consequence, UPS agreed to pay Merritt total disability benefits at a rate of $285.33 per week.

On October 26, 2005, Dr. Ah Kalamchi performed surgery to repair Merritt’s disc herniation. After the surgery, Merritt reported a marked decrease in pain and numbness. Dr. Kalamchi ordered complete bed rest for one month, followed by physical therapy and rehabilitation. By December 2005, however, Merritt encountered more back problems when one of his discs “blew out” while he was grocery shopping. Merritt also lost bowel and bladder control.

On January 9, 2006, UPS filed a Petition to Terminate Benefits, claiming that Merritt was no longer totally disabled and could return to work. Two days later, on January 11, 2006, Dr. Kalamchi performed a second surgery on Merritt. According to Dr. Kalamchi’s January 26, 2006 note, Merritt “was to take it easy and avoid heavy lifting.” The note did not indicate Merritt’s disability status, however. 2 On March 2, 2006, Dr. Kalamchi reexamined Merritt and noted “additional improvement in back pain and left buttock pain, no limp, and no shooting pain or numbness down the leg.” He prescribed therapy and weight reduction, and asked Merritt to return for a follow-up visit on April 24, 2006.

On March 8, 2006, Dr. Lanny Edelsohn, who was retained by UPS for that purpose, examined Merritt independently. In his post-examination report, Dr. Edelsohn opined that Merritt was no longer totally disabled and could return to work in a sedentary position, with restrictions but not to his job at UPS. Dr. Edelsohn anticipated that Merritt would reach maximum medical improvement in about 90 days and “should return to work starting out at four hours per day and gradually increas[e] his hours ... over [a period of] four to six weeks.” 3 Dr. Edelsohn, both when he prepared his report and also on the date of his deposition, was unaware that Dr. Kalamchi had placed Merritt on total disability. The reason was that it was not until March 22, 2006 that Dr. Kalamchi issued a disability slip retroactively placing Merritt on total disability from January 11, 2006 until April 24, 2006.

On March 29, 2006, on his attorney’s advice, Merritt met with Dr. Steven D. Grossinger for a second opinion. Dr. Grossinger diagnosed Merritt with lumbar radiculopathy. He concluded that Merritt could not return to work for UPS, because of continuing pain and because of abnormalities in his neurological examination. Dr. Grossinger issued a disability slip placing Merritt on total disability for three months beginning March 29, 2006. 4

On April 4, 2006, 30 days before the scheduled Board hearing, UPS’s counsel sent a letter via facsimile to the Board (the “Letter”), which stated:

*1199 Please be advised that the Employer/Carrier:

1. Admits a transient period of recurrence from January 11, 2006 (the date of the second surgery) to March 8, 2006 (the date of the defense medical examination);

2. Admits temporary partial disability benefits from March 8, 2006 to the present and on-going at a rate of $75 per week; and

3. It should be noted that the Employer cannot accommodate sedentary or light duty restrictions and it is therefore appropriate that the claimant seek alternative work. 5

Following a May 4, 2006 hearing, the Board granted UPS’s Petition to Terminate Benefits. In its June 2, 2006 order, the Board held that: (a) Merritt’s total disability ended on April 24, 2006, and (b) Merritt was entitled to partial disability benefits, but only for a closed period of six weeks from and after the end of the total disability period, i.e., from April 24, 2006 to June 5, 2006.

In finding that Merritt’s total disability had ended, the Board considered Dr. Edel-sohn’s report (opining that, as of March 2006, Merritt could return to part-time work); Dr. Kalamchi’s disability slip (placing Merritt on total disability until April 24, 2006); and Dr. Grossinger’s disability slip (placing Merritt on total disability until June 28, 2006). Because Dr. Grossinger was not Merritt’s treating physician, the Board disregarded his opinion. 6 The Board found that Merritt was no longer totally disabled, because: (i) Dr. Kalamchi had noted improvement in Merritt’s condition and (ii) Dr. Edelsohn had opined that Merritt could return to part-time work in a sedentary position, albeit with restrictions. The Board found that the effective end date of Merritt’s total disability status was April 24, 2006 (as per Dr. Kalamchi’s disability slip), because Merritt “[was] permitted to rely on his treating doctor’s no-work orders ... regardless of actual physical ability or condition.” 7 Merritt does not dispute the Board’s findings regarding total disability on this appeal. Merritt disputes only the Board’s decision with respect to partial disability.

As earlier noted in his March 2006 report, Dr. Edelsohn opined that Merritt could return to full-time employment after a period of “four to six weeks” of part-time work. Based solely on Dr. Edelsohn’s opinion, the Board found that Merritt was “capable of returning to [full-time] work in a sedentary capacity, beginning with part[-]time hours and increasing to full[-]time hours after six weeks.” The Board concluded that Merritt was “entitled to partial disability compensation at a rate of $141.95 per week for a period of six weeks following the termination of total disability,” i.e. until June 5, 2006, but was “not eligible for partial disability compensation after the six week period has ended.” 8

*1200 Merritt appealed the Board’s decision to the Superior Court. Merritt claimed that the Board erred in two respects: (a) by finding that Merritt was entitled to partial disability benefits for only six weeks, rather than giving conclusive effect to UPS’s admission of liability — contained in UPS’s Letter and reiterated at the Board hearing — that his partial disability was “ongoing;” and (b) by finding that Merritt would be able to return to full-time employment six weeks after his total disability period ended, thereby terminating Merritt’s partial disability benefits as of a future date.

Addressing Merritt’s first claim, the Superior Court found that the Letter constituted an amendment to UPS’s pre-trial memorandum. The Court then summarily concluded that the Board did not abuse its discretion in its treatment and consideration of the Letter, because by finding Merritt entitled to partial disability payments for a closed period of six weeks, the Board gave effect to UPS’s “recognition that it was responsible for partial disability benefits for a limited, period of time.” 9 The Superior Court also rejected Merritt’s second claim of error, holding that 19 Del. C. § 2325 permits the Board to set a future date as the end date for partial disability compensation. This appeal followed.

ANALYSIS

On appeal Merritt presents the same two claims of error. Where the Board’s decision is supported by substantial evidence and is free from legal error, this Court will affirm. 10 This Court does not, however, weigh evidence, decide questions of credibility, or make its own factual findings. It determines only if the evidence is legally adequate to support the Board’s factual findings. 11 Alleged errors of law, however, are subject to de novo review. 12 Absent errors of law, we review the Board’s decision for abuse of discretion. 13

Preliminarily, UPS argues that Merritt’s first claim of error was not properly preserved for appeal, for two reasons. First, UPS contends that the Letter was never made an exhibit at the Board hearing. That argument is not persuasive. Although the Letter was not formally introduced as an exhibit at the Board hearing, the Board referred to the Letter in its decision and both parties were fully aware of its contents. Moreover, during the Board hearing UPS’s counsel repeatedly *1201 referred to the Letter and reiterated the admissions contained therein. 14

Second, UPS argues that Merritt’s counsel remained silent when UPS’s counsel described the Letter as an amendment to UPS’s pre-trial memorandum, and never asked the Board to give the Letter “conclusive, judicial effect.” That argument must also be rejected. Merritt does not dispute the finding that the Letter was an amendment to UPS’s pre-trial memorandum. His claim is that the Board failed to give the appropriate legal effect to UPS’s admission of liability in its Letter. It is undisputed that Merritt’s counsel did not specifically ask the Board to apply Superi- or Court Civil Rule 36 or to give “conclusive, judicial effect” to UPS’s admission. But, as discussed below, Merritt was entitled to expect that the Board would give conclusive effect to UPS’s admission, without his counsel having to make a formal request to that effect. Accordingly, Merritt is not precluded from claiming that the Board erroneously failed to give conclusive effect to UPS’s admission. 15

We conclude that UPS’s admission was the equivalent of a judicial admission and should therefore have been given conclusive effect. Voluntary and knowing concessions of fact made by a party during judicial proceedings {e.g., statements contained in pleadings, stipulations, depositions, or testimony; responses to requests for admissions; counsel’s statements to the court) are termed “judicial admissions.” 16 Here, UPS voluntarily and expressly conceded in its Letter to the Board that Merritt’s partial disability was “on-going.” UPS’s counsel reiterated that admission at the Board hearing, and asked the Board to “enter an order consistent with [the][L]etter.” In these circumstances, UPS’s admission, made during the administrative proceedings before the Board, merits the same treatment as a judicial admission.

Although there are no Delaware cases directly on point, judicial admissions, as distinguished from evidentiary admissions, 17 are traditionally considered conclu *1202 sive and binding both upon the party against whom they operate, and upon the court. 18 Consequently, the Board should have given UPS’s admission conclusive effect. A tribunal may, however, in the exercise of its discretion, reheve a party from the conclusiveness of its judicial admissions. 19 That principle is reflected in Board Rule 14(B), which relevantly provides that the Board may “disregard any customary rules of evidence and legal procedures so long as such a disregard does not amount to an abuse of its discretion.” 20 We must, therefore, decide whether the Board, by not giving conclusive effect to UPS’s admission, abused its discretion.

The Board referred twice to UPS’s admission in its written decision. The first *1203 reference was in its summary of the procedural posture of the petition. 21 The second was in its discussion of Merritt’s total disability. The Board relied on UPS’s admission that Merritt had suffered a recurrence of total disability as of January 11, 2006. 22 Inexplicably, however, the Board made no reference to that admission when discussing the issue of partial disability. Nor did the Board explain why it rejected UPS’s admission that Merritt’s partial disability was “ongoing,” and chose instead to conclude (in reliance upon Dr. Edelsohn’s opinion) that Merritt’s partial disability would cease six weeks after the total disability period ended.

The Board’s failure to explain its rejection of UPS’s admission is troubling. Dr. Edelsohn — who was not Merritt’s treating physician and who had examined Merritt only one time — was the only medical expert witness who opined on the issue of partial disability. 23 Merritt did not present any medical expert testimony on this issue. His counsel’s decision not to do so was likely in reliance on the binding effect of UPS’s judicial admission, 24 which was facially inconsistent with Dr. Edelsohn’s opinion. 25

In these circumstances, we must conclude that the Board abused its discretion by disregarding UPS’s admission that Merritt’s partial disability was “on-going,” and by setting a six week end date to Merritt’s entitlement to partial disability benefits. Given our disposition of Merritt’s first claim, we do not reach the issue of whether the Board may set a future date as the end date for partial disability benefits.

*1204 CONCLUSION

For the foregoing reasons, the judgment of the Superior Court is reversed with instructions to remand the case to the Board for a new determination regarding Merritt’s entitlement to partial disability compensation, and the amount thereof.