WORKERS’ COMPENSATION REPORT
Significant Accident Does Not Mean Significant Permanency – Employer Prevails
Claimant was involved in a rather significant compensable work-related motor vehicle accident on September 22, 2016. He was struck from behind by a truck traveling at a high rate of speed. He sustained numerous injuries including traumatic brain injury, concussion with loss of consciousness, diffuse axonal injuries, subarachnoid hemorrhage, scalp lacerations and hematomas, carotid artery wall damage, right pulmonary contusion, 10 rib fractures (at least 4 of which were displaced fractures), a thoracic spine transverse process fracture, and cervical/lumbar strains. He was hospitalized for one month between acute care and in-patient rehabilitation.
Over one year after the injury, Claimant was seen by Dr. Meyers for a permanency evaluation, and he rated the following: 16% to the brain, 10% for headaches, 11% for the cervical spine, 22% to the thoracic spine, and 8% to the lumbar spine. Employer had Dr. Townsend evaluate the Claimant, and he found 10% permanency to the brain, no headache impairment, and only 7% permanency to the lumbar, thoracic, and cervical spines.
The Board noted that despite the significance of the initial trauma, they needed to look at this matter with regard to actual residual effects and complaints. They stated that Dr. Meyers had done just the opposite, focusing on the acute state, which ignored the Claimant’s significant recovery. Mental status testing only 3 months post-accident showed that the Claimant made substantial cognitive gains following the accident. He had little to no headache complaints or treatment for over a year before the Hearing. The Board also felt it was important that Claimant returned to work as a high school dean and later teacher rather quickly after the accident, and noted that this spoke to the return of his cognitive function and lack of headaches. The Board was also rather critical of Dr. Meyers thoracic permanency rating. Dr. Meyers testified that he rated 2% permanency for the thoracic transverse process fracture, and the remaining 20% of his rating was based on 2% permanency for each of Claimant’s 10 rib fractures. The Board accepted Dr. Townsend’s testimony that these rib fractures were healed. There was no loss of function. The only effect on function the ribs could possibly have would be pulmonary, and the Claimant had no such complaints in his records. Given the significant flaws in Dr. Meyers analysis on brain, headache, and thoracic permanency, the Board found Dr. Townsend more reasonable and accepted all of his ratings as to the brain, thoracic spine, neck and low back and no impairment rating as to the headaches.
Should you have any questions concerning this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.
Timothy Jubilee v. State, IAB Hrg. No. 1448320 (July 17, 2018).
Maria Paris Newill
Co-Managing Partner Maria Paris Newill will be traveling to Florida next week to attend the Annual Workers’ Compensation Conference at the Orlando World Center Marriott.
The following day, Mrs. Newill will be attending a celebration in Washington, D.C. as part of the Women & The Law Section of the Delaware State Bar Association. Mrs. Newill will be celebrating the 95 years of women in the Delaware Bar and enjoying a very special guest, U.S. Supreme Court Associate Justice Ruth Bader Ginsburg.
Heckler & Frabizzio Firm Picnic
Heckler & Frabizzio’s Annual Firm Picnic will be taking place on August 24, 2018. The Firm will be closing the office at 11:00 am in order to celebrate with our entire staff. We look forward to this event especially because it gives us all a chance to gather with our coworkers, family and friends. H&F recognizes and values all of the hard work our employees do everyday. This is our thank you! Please check back next month for pictures from this event.
Hot WC News
DCRB Proposed Rate Reduction
As a sign of continued Delaware claim cost reduction as the result of the Workers’ Compensation Act legislative medical cost containment reforms, the Delaware Compensation Rating Bureau, Inc. (DCRB) has just announced it is recommending a decrease in workers compensation premiums this year. The DCRB report recommends a Residual Market premium reduction of 7.23% and a Voluntary Market premium reduction of 9.94%. The DCRB recommendation will now be reviewed by the Rate Payor Advocate who will provide his position regarding the proposed reduction by September. Historically, there is usually an agreement reached between the parties by the Fall as to the final approved workers compensation rates. Stay tuned for further updates and final rate approval in the fall. To review the document please follow this link.
If you have any questions regarding the DCRB proposed rate reduction, please contact any attorney in our Workers’ Compensation Department.
LITIGATION CASE LAW UPDATE
Discovery No Substitute
For Properly Pled Complaint
On October 16, 2015, Plaintiff, a minor, was reportedly “assaulted, battered, and head butted” by another student while on schoolyard premises. Plaintiff brought a negligence claim against Defendant, the owners/operators of the schoolyard premises, alleging that Defendant acted “with a reckless indifference to the rights of the minor Plaintiff at the time of the alleged attack.”
Defendant filed a Motion to Dismiss arguing that; 1.) Plaintiff’s complaint failed to plead that Defendant’s alleged negligent supervision was a ministerial action, 2.) the complaint failed to plead that Defendant acted without good faith towards their students, and 3.) the complaint did not state the circumstances constituting gross negligence with particularity. Plaintiff contended that Defendant’s acts or omissions were ministerial, not discretionary, because “an act is ministerial if the act of the official involves less in the way of personal decision or judgment, or the matter for which judgment is required has little bearing on the importance upon the validity of the act.” Further, Plaintiff claims that in order to demonstrate that certain acts or failures to act are ministerial, a Plaintiff must show the existence of maintained mandatory policies or procedures that defendant ignored or otherwise failed to follow.
The Court concluded that Plaintiff failed to meet the burden of proving the absence of discretionary conduct by the Defendant because Plaintiff failed to provide any facts that show Defendant failed to supervise, or exercise due care to protect the Plaintiff. Further, Plaintiff was not entitled to further discovery in order to determine whether Plaintiff’s allegations can be supported. The Court had previously held that though discovery may be properly used to supplement the pleadings with additional details, its function is not to serve as a substitute for the complaint, which must contain facts that are believed to constitute the Plaintiff’s cause of action. Therefore, Defendant’s Motion to Dismiss was Granted.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Valeria Ward, as Next Friend of Zachery Ward, minor, v. Gateway Charter School Inc. (Del. Super. Ct. July 18, 2018) (unreported).
EMPLOYMENT CASE LAW UPDATE
Out of Time, Out of Benefits:
Untimely Filing Results in Unemployment Insurance Appeal Board’s Rejection of Appeal
Under Delaware Law, an employee who is terminated from his/her employment has the right to file for unemployment benefits. Following the employee’s application for benefits, the claim is reviewed by a Claims Deputy at which time s/he makes a determination as to whether the employee was fired for “just-cause”. Under 19 Del C. §3318(b), the Claims Deputy’s decision becomes final if an appeal is not filed within 10 calendar days from the date the decision is mailed to the parties. If an appeal is timely filed, the same is heard first by an Appeal Referee and then finally, by the Unemployment Insurance Appeals Board (“UIAB”), at which time the prior decision can either be affirmed or overturned.
In Alcide v. Mountaire Farms of DE, Inc., Alita Alcide (“Alcide”) filed for unemployment benefits following her termination from Mountaire (“Employer”) for violating the company’s attendance policy. Prior to her termination, Employer issued Alcide warnings as to her violation of the company’s policy. Per the attendance policy, Alcide was subsequently terminated following her eighth absence when she failed to appear for a scheduled shift. Following the review of this information, the Claims Deputy determined that Alcide was in fact terminated for “just-cause”, resulting in the denial of unemployment benefits. This decision was mailed to both Alcide and Employer on October 5, 2017, meaning that any appeal would have had to be filed by October 15, 2017. Alcide failed to meet this deadline but did file an appeal of the October 5, 2017 Decision on October 23, 2017. Both the Appeals Referee and the UIAB did conclude the October 5, 2017 Decision had been properly mailed and therefore, the appeal was untimely, resulting in Claims Deputy’s Decision becoming final under 19 Del. C. §3318(b). Alcide did then further appeal this decision to the Delaware Superior Court.
In affirming the UIAB’s Decision, the Superior Court found that the only issue that had been preserved in Alcide’s appeal was as to the timeliness of the appeal itself. The Court noted that while Alcide submitted that she had doctor’s notes for the absences resulting in her termination, it could only review the record below and was not going to make any further factual findings. After finding that there had been no error on behalf the Department of Labor in mailing the Decision, the Court concluded that Alcide had in fact “waived the opportunity to present her version of the events leading to her termination.” Accordingly, the denial of Alcide’s unemployment benefits and the UIAB’s finding of untimeliness of the subsequent appeal was upheld.
For information regarding this matter or any other employment law questions, please contact any attorney in our Employment Law Department. Alcide v. Mountaire Farms of DE, Inc., C.A. No. N17A-12-004 RFS (Del. Super. June 27, 2018).
THIS DAY IN LEGAL HISTORY
August 15, 1971
On August 15, 1971, President Richard M. Nixon announced a 90-day freeze on wages, prices and rents in an attempt to bring inflation that was increasing under control. As part of the measures he also removed the gold/silver backing from the US Dollar effectively ending the (Bretton Woods System) and the American role as the guarantor of stability for the US Dollar and other world’s currencies. By the end of the year, the US dollar became a floating currency and shortly after most of the rest of the world’s currencies followed, which is still the case today.