Boller v. Tip Top Trim Shop

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
Employer-Below,
Appellee.
MATTHEW E. BOLLER, )
)
Claimant-Below, )
Appellant, ) C.A. No. K17A-09-002 WLW
) In and for Kent County
v. )
)
TIP TOP TRIM SHOP, )
)
)
)
Subrnitted: March 12, 2018
Decided: June 6, 2018
ORDER
Upon Appeal from the Decision of the
Industrial Accident Board.
Remana'ed
Walter F. Schmittinger, Esquire and Candace E. Holmes, Esquire of Schmittinger and
Rodriguez, P.A., Dover, Delaware, attorneys for Claimant-Appellant.
H. Garrett Baker, Esquire of Elzufon, Austin & Mondell, P.A., Wilrnington,
Delaware, attorney for the Employer-Appellee.
WITHAM, R.J.
Matthew E. Boller v. T ip T op T rim Shop, Inc.
C.A. No. Kl7A-09-002 WLW
June 6, 2018
Before the Court is Claimant-Appellant, Matthew Boller’s (hereinafter, the
“Claimant”), appeal from a decision of the lndustrial Accident Board (hereinafter, the
“Board”). Having carefully reviewed the parties’ submissions, as well as the record
below, it appears that:
l. The Claimant is the sole employee and owner of Tip Top Trim Shop, Inc.
(hereinafter, the “Employer”), an upholstery business.
2. On January 28, 2015, the Claimant filed a First Report of Injury or Disease
with the Delaware Department of Labor’s Office of Workers’ Compensation. The
Claimant alleged that he was suffering “great pain” in both his wrists and thumbs.
The Claimant attributed the pain to years of pulling material, using scissors, and
lifting seats.
3. On September 15, 2015,1 the Claimant filed a Petition to Deterrnine
Compensation Due (hereinafcer, the “Petition”) with the Industrial Accident Board
seeking compensation for injuries to his thumbs that he suffered as a result of his
employment.
4. On May 24, 2017, the Board denied the Petition as untimely since,
according to the Board, it was filed more than one year after the triggering of the
statute of limitations
5. On August 9, 2017, the Board clarified that, although it should have
applied a two-year limitations period, the Petition was still denied as untimely
1 Although the Board’ s decision stipulates that the Claimant filed the Petition on September
20, 2015, the Court notes that a copy of the Petition provided to the Court is stamped as being
received on September 15, 2015.
Matthew E. Boller v. T ip T op T rim Shop, Inc.
C.A. No. Kl7A-09-002 WLW
June 6, 2018
because the “Claimant’s thumb symptoms began many years before he submitted
the First Report of Injury to [his] insurance carrier and more than two years before
he filed the Petition.” Therefore, the Board found that the “Claimant ‘should have
recognized the nature, seriousness and probable compensable nature of the injury
or disease’ more than two years before filing the Petition . . . .”
6. On September 8, 2017, the Claimant appealed the Board’s decision to this
Court, challenging numerous findings made by the Board.
7. Before the Court can reach the merits of the Claimant’s Appeal, however,
the Court finds that it is necessary for the Board to clarify its application of the three
Geroski factors.2
8. According to the Delaware Supreme Court in Geroski, the Board must
determine the date when a claimant, as a reasonable person, should have recognized
the ( l) nature, (2) seriousness, and (3) probable compensable nature of the claimant’s
injury or disease.3 These determinations are factually intensive, requiring a careful
consideration of the testimony and evidence presented to the Board. Most
importantly, each component must be present to determine the triggering date of the
statute of limitations, since the limitations “clock” is not triggered until a claimant
recognizes all three components4
9. ln this case, although the Board listed the three Geroski factors, the Board
2 Geroskz`` v. Playtex Family Products, 1996 WL 69770 (Del. Jan. 24, 1996) (TABLE).
3 Id. at *l (citation omitted).
4 Wright v. Um'ted Med. & Home Health, Inc., 2002 WL 499889, at * 2 (Del. Super. Mar.
21, 2002).
Matthew E. Boller v. T ip Top T rim Shop, Inc.
C.A. No. Kl7A-09-002 WLW
June 6, 2018
failed to precisely address why the Claimant should have recognized the seriousness
of his thumb condition more than two years before filing the Petition.5 The case is
therefore REMANDED to the Board to address this issue.
IT IS SO ORDERED.
/s/ William L. Witham, Jr.
Resident Judge
WLWJr./dsc
5 The analysis is both mandatory and important in this case since cumulative injuries, like
the Claimant’s, typically progress to a certain degree of severity before the injury is actually
compensable See Wright, 2002 WL 499889 (where the Court remanded the Board’s decision to
address the second Geroskz' factor because, even though the claimant was diagnosed with carpal
tunnel syndrome in 1991, the evidence indicated that the claimant’s condition was likely not
compensable until her condition worsened in 2000).
4