The Superior Court issued an opinion February 21, 2012 in Delaware Home and Hospital v. Edith Martin, K11A-07-001 (RBY) requiring “full discovery and disclosure” prior to a new hearing before the Industrial Accident Board.

Ms. Martin was injured on the job in 2008 and underwent multiple knee surgeries with Dr. Rowe, several years apart. She stopped working in May 2008 and despite apparent attempts to find a new job, she was not employed thereafter. After the second surgery in 2011, she filed a Petition to Determine Additional Compensation Due for total disability benefits during the ten weeks she was disabled. The carrier contested the claim, asserting that she was voluntarily unemployed and thus was not eligible for total disability.

At the hearing before the IAB, Martin was permitted to testify over employer’s objection as to her diligent efforts to find employment since being forced to leave her job in 2008. The objection centered on her lack of response to multiple discovery requests asking for documents pertaining to Claimant Martin’s efforts to find a job. The Court wrote, “Appellant twice requested Claimant to produce any information or documentation regarding Claimant’s job search efforts since her industrial accident.  The requests sought documents regarding Claimant’s efforts, information upon which Claimant would rely at the hearing, and a list of employers to which Claimant applied.  Claimant did not provide Appellant with the information to which she testified.  Instead, Claimant informed Appellant that she had turned over all documents and that Claimant received Social Security payments.  Claimant argued that further information was not subject to Appellant’s requests, because it was not memorialized in a document. The Board admitted the evidence over Appellant’s objection.”

The Superior Court reversed the Board’s admission of Martin’s testimony as an abuse of discretion, holding that the Board should not have permitted Martin to testify about her schooling or job search efforts because she had not answered discovery requests concerning those matters. The Court wrote that Martin’s rationale for not providing the requested discovery was that the discovery rules require only production of documents, and the information was not contained in any documents in the possession of the claimant. IAB Rule 11 permits discovery of documents, but not interrogatories, and the discovery request was really an interrogatory. The Court wrote that “[t]his sort of razor thin distinction could appear to border on what was once referred to as ‘unhandsome dealing.’  Not having the information in some formalized, written form is decidedly not the equivalent of not having the information.”

The Court went on to write, “Claimant’s characterization of the request as an interrogatory may be fair. Claimant’s suggestion that Appellant is not entitled to an answer thereof, however, is not.  Claimant argues that nothing in the Board rules indicates that interrogatories are permitted.  The fact that the rules do not suggest interrogatories does not mean, necessarily, that they are not allowed.  Claimant does not present any authority to the contrary.  The request was proper.  Appellant was entitled to the information.”

The Court appears to look to considerations of due process and basic procedural fairness in expanding the scope of Industrial Accident Board discovery. Quoting Torres v. Allen Family Foods, 672 A.2d 26 (Del. 1995), the Court wrote, “Nothing is more repugnant to our traditions of justice than to be at the mercy of witnesses one cannot see or challenge, or to have one’s rights stand or fall on the basis of unrevealed facts that perhaps could be explained or refuted.” The Court reversed the IAB and remanded for a new hearing only “after full discovery and disclosure”.

I think the Superior Court is right — a defendant should not be required to appear and defend against a case where they have not been provided basic discovery. That does not comport with basic procedural due process. On the other hand, I will be interested to see if any attorneys start propounding ridiculously voluminous interrogatories in IAB cases like they do in Superior Court personal injury cases. My practice mainly involves litigating Superior Court personal injury cases resulting from automobile accidents. The defendants’ interrogatories are usually around seventy questions long, and each question contains three to five sub-questions on average. I usually meet with the client myself to answer these interrogatories. I suspect that most reasonable attorneys probably go play golf and make their paralegal answer the damn things. My paralegal refuses. Anyway, I figure it gives me the opportunity to review the case in detail and start preparing for trial. After I spend two or three (or four) hours sitting with the client answering interrogatories, I know what has been done and what is left to do to prepare for trial. That said, I try not to take cases that don’t warrant spending hours upon hours answering ridiculous interrogatory questions that were apparently designed with the main purpose of enabling an insurance defense attorney to pad his bill.

If claimant’s counsel in the Martin case knew he or she was going to spend four hours answering interrogatories, I wonder if the Petition to Determine Additional Compensation Due would ever have been filed in the first place. My money says a lot of IAB petitions would never be filed if claimaints’ counsel had to do the amount of work that goes on in Superior Court cases where full interrogatories are permitted.



Ben Schwartz represents Delaware citizens injured in accidents such as car accidents, tractor trailer accidents, motorcycle accidents and bicycle accidents. Most of the time, Ben’s cases involve jury trials in the Superior Court of Delaware in Wilmington, Dover or Georgetown, DE.  Ben accepts a limited number of Delaware workers’ compensation cases and also represents medical providers before the Delaware IAB where their medical reimbursements are contested. If you have been injured in an accident in Delaware and you are seeking representation by an attorney, please contact Ben at