IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WAYNE FORAKER, ) ) Claimant Below

- ) Appellant, ) ) C.A. No. N19A

- 12

- 001 ALR

v

. ) ) AMAZON.COM, INC., ) ) Employer Below

- ) Appellee. )

Submitted: December 31, 2020 Decided: January 4 , 2021

Upon Application for Certification of an Interlocutory Appeal

By Employer Below

- Appellee

DENIED

ORDER

Upon consideration of the application for certification of interlocutory appeal

and response in opposition thereto ; the facts, arguments, and legal authorities set

forth in the parties’ submissions; Supreme Court Rule 42 ; the Superior Court Rules

of Civil Procedure; decisional law; and the entire record in this case, the Court

hereby finds as follows:

1. This matter was before the Superior Court in the Court’s appellate role.

2. Wayne Foraker (“Foraker”) was injured in the course of his

employment at Amazon.com, Inc. (“Ama zon”). Foraker was paid temporary total2

disability workers’ compensation benefits for his work

- related injury. The Industrial

Accident Board (“IAB”) denied additional total disability benefits on the grounds

that Foraker’s continuing medical problems wer e attributed to a preexisting injury

and not Foraker’s more recent work

- related injury.

3. In a Memorandum Opinion issued November 5, 2020, this Court found

that the IAB committed legal error in its denial of additional workers’ compensation

.

T his Court also ruled that the record did not include substantial evidence to support

the IAB’s findings of fact that Foraker’s recent Amazon injury had completely

resolved and , instead, that any injury Foraker continued to suffer was attributed to

his prior injury.

4. By Order dated December 11, 2020, this Court denied Amazon’s

motion for reargument/clarification on the grounds that t he standard for reargum ent

ha d not been met. This Court also found there was no basis to further clarify its

decision.

5. Amaz on cites two bases for approving the application. First

, Amazon

argues that interlocutory appeal will expedite the judicial process, reduce the cost of

litigation and hasten full and final resolution. Second, Amazon claims this Court

decided a significan t issue.

6. Foraker opposes certification of interlocutory appeal.

7. The standard for certification of an interlocutory appeal is high:3

I nterlocutory appeals should be exceptional, not routine, because they disrupt the normal procession of litigation, cause delay, and can threaten to exhaust scarce party and judicial resources. Therefore, parties should only ask for the right to seek inter locutory review if they believe in good faith that there are substantial benefits that will outweigh the certain costs that accompany an interlocutory appeal. 1

8. A n interlocutory appeal may be certified by this Court pursuant to

Supreme Court Rule 42 o nly when the appealed decision (1) “ decides a substantial

issue of material importance that merits appellate review before a final judgment ” 2

and ( 2 ) meets one or more criteria enumerated in Rule 42(b)(iii)

. 3 Moreover, before

certifying interlocutory appe al, this Court “ should identify whether and why the

likely benefits of interlocutory review outweigh the probable costs, such that

interlocutory review is in the interests of justice .” 4

9. Amazon ’s application does not meet the strict standards for

certi fication under Rule 42(b).

10. Neither t he Court ’s November 5, 2020 Memorandum Opinion nor the

Court’s December 11, 2020 Order denying reargument/clarification decide d a ny

substantial issue s of material importance . While significant to the parties invo lved,

the issues before the Court were routine

. T his Court applied a well

- established

1 Supr. Ct. R. 42(b)(ii).

2 Supr. Ct. R. 42(b)(i).

3 See Supr. Ct. R. 42 (b)(iii).

4 Supr. Ct. R. 42(b).4

standard of review, remand ed the matter for application of the correct legal standard

and for findings based on record evidence

. 5

1 1

. The Court’s November 5, 2020 Memorandum Opinion and December

11, 2020 Order do not meet Rule 42(b)(iii) criteria

. The relief granted by this Court

is not novel

. There is no conflict among trial courts that should be addressed by the

Delaware Supreme Court. In addition, the Order do es not grant or deny dispositive

relief and interlocutory review is therefore unlikely to terminate this litigation. On

the other hand, interlocutory review will cause further delays of this case and require

the parties to expend resources litigating an u nexceptional issue, a scenario that the

strict standards of Rule 42(b) seek to prevent. 6

12. Exceptional circumstances that would merit interlocutory review of th is

Court’s rulings are not present here.

13. The public policy rationale of the worke r’s compensation no

- fault

scheme is to provide for prompt payment of medical expenses and lost wages

5 See A & J Builders, Inc. v. McKirby , 2009 WL 2972916, at *1 (Del. Sept. 14, 2009) (TABLE) (reiterating that “an order of remand by the Superior Court to the Industrial Accident Board is interlocutory and not a final order” unless rem anded for purely ministerial functions). See also Sprint Nextel Corp. v. iPCS, Inc. , 2008 WL 2861717, at *1 (Del. Ch. July 22, 2008) (“The ‘substantial issue’ requirement is met when an interlocutory order decides a main question of law which relates to t he merits of the case, and not to collateral matters.”).

6 See Supr. Ct. R. 42(b)(ii) (“ Interlocutory appeals should be exceptional, not routine, because they disrupt the normal procession of litigation, cause delay, and can threaten to exhaust scarce part y and judicial resources. ”).5

associated with work

- related injuries. 7 A n interlocutory appeal before the Board

reconsiders whether Foraker is entitled to additional compensation is con trary to that

public policy in favor of prompt compensation . In addition, any appeal by Amazon

after an award of benefits triggers the constitutional requirement that an employer

post a bond for the full amount of the award prior to any request for a stay of that

payment. 8

1 4

. Any potential benefits of interlocutory review are substantially

outwei ghed by the inefficiency, disruption and cos ts of an interlocutory appeal

.

1 5

. Accordingly, i nterlocutory review will be disruptive, will cause delay,

and will not be consistent with the fair and efficient administration of justice.

NOW, THEREFORE, this 4 th day of January 202 1 , Amazon ’s application

for certification of an interlocutory appeal i s hereby DENIED.

IT IS SO ORDERED. 

## Andrea L. Rocanelli

___ ___________________________ The Honorable Andrea L. Rocanelli

7 Moss Rehab v. White , 692 A.2d 902, 909 n.12 (Del. 1997).

8 Del. Const. a rt. IV, § 24.