This first day of May 2007, it appears to the Court that:
1) The plaintiff-appellant, Workers' Compensation Fund ("Fund"), appeals the Superior Court's dismissal of its complaint seeking a writ of prohibition and declaratory judgment preventing the Industrial Accident Board ("Board") from hearing the appellee Kent Construction Co.'s ("Kent") "true second injury" petition, pursuant to 19 Del C. § 2327. The Fund makes two related arguments on appeal. First, it claims that the Superior Court erred when it denied its writ of prohibition. Second, it claims that the Superior Court erred as a matter of law when it dismissed its complaint without allowing the Fund to be "fully heard." We have concluded that neither claim is meritorious. Therefore, the judgment of the Superior Court is affirmed.
2) The defendant-appellee, Kent Construction Co. ("Kent"), employed James Smith on November 15, 1999, when Smith ruptured a disk in his lower back as a result of a work injury. Kent began paying total disability benefits on or around November 30, 1999. By Agreement and Final receipt dated March 30, 2001, Kent acknowledged a 16.5 percent permanent impairment to Smith's lumbar spine. Pursuant to an Industrial Accident Board ("Board") Order dated November 9, 2004, Smith was awarded total disability benefits as of October 2, 2003. The first payment of total disability benefits was made on December 8, 2004.
3) On September 30, 2005, Kent filed a "true second injury" petition,
4) On May 22, 2006, the Fund filed a complaint against Kent and the Board in the Superior Court seeking a writ of prohibition preventing the Board from hearing Kent's petition for reimbursement. The Fund also sought a declaratory judgment that the two-year limitation in 19 Del. C. § 2327 begins to run upon the date of the first payment of total disability benefits following the date of the second accident. In a written opinion, the Superior Court dismissed the Fund's complaint on July 17, 2006.
5) The purpose of a writ of prohibition is to prevent a lower tribunal from exceeding its jurisdiction.
6) A writ of prohibition will only be granted when the lower court's lack of jurisdiction is "manifestly apparent" on the record.
7) Whether the Board has jurisdiction over Kent's petition depends upon two questions. First, the Board's jurisdiction depends on when the payment that begins the two-year time limitation in section 2327 was made. Second, it depends on whether the time period in section 2327 is a statute of limitations or a statute of repose. The Board expressly determined that the two-year
8) The Fund also argues that the Superior Court should not have ruled on whether the writ should be issued until it had an opportunity to fully brief the merits of the case. The Superior Court denied the Fund's request and based its ruling solely on the complaint. It is clear on the face of the complaint that a writ should not be issued in this case because an adequate and complete remedy at law is available on appeal. Thus, the Superior Court did not err when it dismissed the complaint without briefing on the merits.
NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the Superior Court is affirmed.
BY THE COURT: