324 A.2d 775

Samuel E. EASTBURN, Jr., Appellee Below, Appellant, v. NEWARK SCHOOL DISTRICT, Appellant Below, Appellee. George L. McFARLANE, Appellee Below, Appellant, v. PHOENIX STEEL CORPORATION, Appellant Below, Appellee.

Supreme Court of Delaware.

July 12, 1974.

Oliver V. Suddard, Wilmington, for ap-pellees below, appellants.

Julius Komissaroff, of Berg, Komissa-roff & Sawyer, Wilmington, for appellants below, appellees.

Before HERRMANN, Chief Justice, DUFFY, Associate Justice, and BROWN, Vice Chancellor.

HERRMANN, Chief Justice:

In this workmen’s compensation case, the Industrial Accident Board denied the Employers’ application for examination of the Employee-Claimants by a Philadelphia physician. Upon appeal by the Employers, the Superior Court reversed, obviously relying upon the scope-of-review rule set forth in Ortiz v. Gioia Specialty Foods, Del.Super., 295 A.2d 589 (1972). The Employees now bring this appeal.

The determinative question is whether an interlocutory order of the Industrial Accident Board is appealable to the Superior Court. We hold not.

Appellate review of decisions of the Industrial Accident Board are governed by *77619 Del.C. §§ 2349 and 2350.1 The references therein are to the appealability of an “award” only; there is no reference therein to the appealability of an interlocutory order of the Board.

The word “award” must be read as the final determination of the Board in the case. The word itself requires that connotation; and the urgency of workmen’s compensation cases, as well as the improvement of judicial administration, militates against a ruling permitting fragmentation of such litigation by interim appeals.2

Accordingly, we hold that interlocutory orders of the Industrial Accident Board are unappealable. Appellate review of an interlocutory order must await appellate review of the final determination of the Board.

The scope-of-review rule set forth in Ortiz, relied upon below, must be overruled. There, based upon McClelland v. General Motors Corporation, Del.Supr., 214 A.2d 847 (1965), the Superior Court applied the “substantial right” test to the appealability of an interlocutory order of the Board. The McClelland case involved the appealability to the Supreme Court of an interlocutory order of the Superior Court, entered upon an appeal from a final award of the Industrial Accident Board. The “substantial right” test of appealability of an interlocutory order of the Superior Court in a civil case, based upon the earlier practice in Chancery, arose from constitutional change. Del.Const., Art. 4, Sec. 11(1) (a), Del.C.Ann.; Wagner v. Shanks, Del.Supr., 194 A.2d 701 (1963). It was not extended to the Industrial Accident Board by McClelland.

We note in passing that 19 Del.C. § 2343(a) gives an employer the right to have an examination of the employee made at “reasonable times and places” by a “physician legally authorized to practice his profession under the laws of such place”. Depending upon the circumstances of each case, the denial of that right may be deemed an abuse of discretion in the determination of reasonableness.

Reversed and remanded for further proceedings consistent herewith.

Eastburn v. Newark School District
324 A.2d 775

Case Details

Name
Eastburn v. Newark School District
Decision Date
Jul 12, 1974
Citations

324 A.2d 775

Jurisdiction
Delaware

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