Paolino v. Industrial Acc. Bd., No. 96M-08-003-WTQ

• Court: Superior Court of Delaware
• Writing for the Court: QUILLEN
• Citation: 711 A.2d 800
• Parties: Daniel J. PAOLINO, III, Petitioner, v. INDUSTRIAL ACCIDENT BOARD; Battaglia Electric, Inc., Respondents. C.A. . Argued:
• Decision Date: 20 February 1997
• Docket Number: No. 96M-08-003-WTQ

Page 800

711 A.2d 800 Daniel J. PAOLINO, III, Petitioner,
v.
INDUSTRIAL ACCIDENT BOARD; Battaglia Electric, Inc., Respondents. C.A. No. 96M-08-003-WTQ. Superior Court of Delaware,
New Castle County. Argued: Feb. 20, 1997.
Decided: April 23, 1997.

Page 801

On Mr. Paolino's Petition for Writ of Prohibition. PETITION DENIED.

Harvey Bernard Rubenstein, Wilmington, for Daniel J. Paolino, III.

Sherry V. Hoffman, State of Delaware Department of Justice, for the Industrial Accident Board.

Jeffrey M. Austin, H. Garrett Baker, Elzufon & Austin, Wilmington, for Battaglia Electric, Inc.

QUILLEN, Judge.

This is a Petition for a Writ of Prohibition. The Superior Court has jurisdiction "of all causes of a civil nature, real, personal and mixed, at common law...." DEL. CONST. ART. IV, § 17. "The Superior Court may frame and issue all remedial writs...." 10 Del.C. § 562; 1 WOLLEY ON DELAWARE PRACTICE § 17. Thus, the jurisdiction of the Superior Court in this regard is both Constitutional and statutory. "The writ is of very ancient origin and originally issued out of the Court of King's Bench of England ... to keep particular courts within the limits of their particular jurisdiction." Fouracre v. White, Del.Super., 102 A. 186, 191 (1917). "[I]n this [S]tate the power to issue the writ of prohibition is not confined to inferior courts" but may extend to administrative agencies exercising quasi-judicial power. Id. The 1897 constitutional grant of original jurisdiction to the Supreme Court to issue writs of prohibition to particular courts, now contained in the Constitution at Article IV, § 11(6), "has nothing to do with the common-law power and jurisdiction of the Superior Court, which possesses the powers of the Courts of King's Bench, Common Pleas, and Exchequer of England." Id.

It is interesting to note that, at the time of the Fouracre decision, 1917, the Court could only find one instance where a writ of prohibition had issued in this State. Id. at 190, citing Clendaniel v. Conrad, Del.Super., 83 A. 1036 (1912). But a current LEXIS search of the phrase "writ of prohibition" will bring to the fore some 161 notations since 1946. The increasing consideration leads one to question whether the extraordinary writ is perhaps being overused and misused. The history and current use of the writ in Delaware would be an interesting treatise, at least for those of us who sometimes long for a more simple past.

The facts upon which the petitioner relies were succinctly stated in the opening brief, which is heavily relied upon in the next five paragraphs.

The respondent Battaglia Electric, Inc. (hereinafter "respondent") filed a petition before the Industrial Accident Board (hereinafter "Board") to terminate the total disability benefits of petitioner Daniel J. Paolino, III (hereinafter "Mr. Paolino"). Mr. Paolino had been injured at work and had been receiving weekly total disability benefits pursuant to his compensation agreement with the respondent. Since there was an agreement, Mr. Paolino had never filed a claim on the regular form provided by the Board.

While the Petition to Terminate was pending, the respondent by letter of January 5, 1996 directed what amounted to written interrogatories

Page 802

to Mr. Paolino, to which Mr. Paolino objected. The Board, after a Legal Hearing, ordered Mr. Paolino to answer three specific questions which were verbatim three of the questions which a claimant must answer on the form supplied by the Board when a claimant files a claim. Mr. Paolino then filed the Petition for a Writ of Prohibition in the Superior Court against the Board and the respondent which gives rise to this opinion. The questions the Board directed to be answered were not precisely the interrogatories propounded, but covered much of the same subject matter.

The Board directed Mr. Paolino to answer the following questions from its own form:

12. Give names and addresses of all employers for the past 5 years.

15. State names and addresses of all other treating doctors for the last 10 years.

22. Give description and dates of all previous and subsequent injuries and identify all.

In its decision, the Board conceded "that the parties may not propound interrogatories" but ordered Mr. Paolino "to answer questions 12, 15, and 22 of the Board's form 'Statement of Facts Upon Failure to Reach an Agreement.' " On the form are twenty-three questions which employees are asked to answer when a carrier denies a claim and the employee is required to file a petition for benefits. The three questions which the Board directed Mr. Paolino to answer constitute just three of those questions. ¹

The Board reasoned that since Mr. Paolino would have been required to answer the questions on the form to be used by him if he had filed a claim (entitled "Petition to Determine Compensation Due to Injured Employee"), Mr. Paolino should answer three of the same questions even though they arose out of the respondent's Petition to Terminate. The form for that termination petition, a form for use by employers, does not require employers to answer questions.

After the Legal Hearing on March 7, 1996, the Board mailed its Order on April 10, 1996 and further denied Mr. Paolino's Motion for Reargument by a decision mailed on July 24, 1996. The precise language of the decision is contained in the first order:

The Board has considered the arguments and law cited by counsel in conjunction with the Board rules and the Administrative Procedures Act (APA). While the Board agrees that the parties may not propound interrogatories, 29 Del. C. § 10125(b)(5) provides that the Board may "cause interrogatories to issue" ... [.] The Board has created a form referred to as "Statement of Facts upon Failure to Reach an Agreement" setting forth twenty-three (23) questions. Additionally, Rule 5 provides that the Board may in its discretion require "a clear and better statement of any cause of action or defense, or further and better particulars of any matter stated or required" ²

The Board, in my judgment, has power to cause these three particular questions to be answered. Even if the Administrative Procedures Act is deemed as only enabling (29 Del. C. § 10125(b)(5) says the agency "may be empowered to ... cause interrogatories to issue"), the Board has clear power to make rules of procedure (19 Del. C. § 2121(a); 29 Del. C. §§ 10111 and 10113) and Board Rule 5(B), as quoted in the Order, certainly covers the basic information requested in these questions.

The current Petition to Terminate led to an IME by Dr. Case on November 8, 1995, which gave rise to discovery of a prior examination by Dr. Case on May 24, 1991, which disclosed previously existing permanent injuries to the lumbar spine...