August 2021

Yes, No, Maybe – Ambiguities in Permanent Impairment Hearing Outcomes
It has long been understood in Delaware that permanency is a battle between two experts, each with their own rating, and supported or supplemented by factual and medical evidence. Under well-settled law, the Board can only fashion its own alternative rating when supported by and based upon the evidentiary record. Turbitt v. Blue Hen Lines, Inc.  711 A.2d 1214 (Del. 1998). Despite this possibility, permanency is overwhelmingly approached and argued as an either/or proposition – a choice between the claimant’s expert rating and the defense expert’s rating.
However, a growing trend has been emerging in this area. Faced with a high rating from claimant’s expert and a 0% rating from the defense expert, the Board is beginning to find claimants failed to meet the burden of proof as to the precise permanency rating. This results in the Board denying the Petition but not affirmatively finding there is no permanent impairment.
Three recent cases are illustrative. In St. James v. State of Delaware, IAB No. 1490378 (May 18, 2021), the Board rejected a 14% right upper extremity impairment rating, noting the claimant’s lack of disclosure of prior injury to the body part raises an issue of possible apportionment, which the claimant’s expert did not address. As such, the Petition for permanent impairment benefits was denied. In DeBenedictis-Bayne v. State of Delaware, IAB No. 1482162 (Apr. 13, 2021), the Board noted concerns with Dr. Rodgers’ rating of 20% cervical spine impairment. Dr. Rodgers’ examination findings did not support the elevated rating, and while the Board declined to find 0% permanency, it denied the Petition, as the claimant failed to meet her burden of proof. In a similar Decision, in Shipmon v. State of Delaware, IAB No. 1461921 (Jan. 6, 2020), the Board found Dr. Rodgers’ 22% cervical spine impairment rating to be “highly inflated.” Again, the Board did not specifically find a 0% impairment rating, but it denied the Petition. Claimant appealed, and the Superior Court recently affirmed the Board’s denial of the Petition (see Shipmon v. State of Delaware, C.A. No. N20A-01-007 DCS, Jul. 30, 2021).
It is possible these claimants will obtain new, reduced permanency ratings and will re-file for permanency. In that instance, it will of course be our position that the prior litigation outcomes would preclude re-filed permanency allegations as a matter of law, but if this argument is rejected by the Board, then the prior hearing record would at a minimum be of assistance in challenging the re-filed claims on their merits. Hopefully, the mere costs of re-filing with a new permanency opinion would dissuade claimants. Going forward, these outcomes should be considered at the time of the 30-Day Rule deadline in similar matters.
If you should have any questions on this issue, then please contact any Attorney in our Workers’ Compensation Department.
High Tuition Doesn’t Necessarily Afford Legal Duties
Following an encounter with the Newark Police Department, Plaintiff, a college student, was charged with violating Defendant University’s alcohol and disruptive conduct policies. A few days later, Plaintiff was arrested outside of her classroom on Defendant University’s campus by an officer with the Newark Police Department.
Subsequently, Plaintiff filed suit against Defendant University asserting a variety of claims, including negligence, negligent infliction of emotional distress, and premises liability. In response, Defendant University moved to dismiss the litigation for failure to state a claim.
If your troubled in seeing how an arrest by a Newark Police Officer could create a cognizable claim against Defendant University, you’re not alone – the Delaware Superior Court couldn’t either. The Court first looked for a legal duty owed to Plaintiff by Defendant University. At best, the Court found that a college owed its students a duty for “the acts of third persons which are both foreseeable and subject to university control.”
The Court held the Plaintiff’s Complaint failed on both counts. First, Defendant University would have no reason to know that a non-University police officer executing a legal warrant would endanger the safety of Plaintiff or others so situated. Moreover, the Newark Police Department’s officer was not subject to Defendant University’s control and had a legal right to execute the arrest warrant at that time and place. As such, Defendant University’s motion to dismiss was granted.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Cantatore v. Univ. of Delaware, 2021 WL 2745107 (Del. Super. Ct. June 30, 2021).
Plaintiff’s Claim for Social Security Benefits Remanded After Being Denied Four Times
Plaintiff filed for social security benefits in 2016 for a disability that originated in 2015. Plaintiff’s application was denied twice before he appealed to the administrative law judge (“ALJ”).   The ALJ found the plaintiff ineligible for benefits as did the Social Security Administration’s Appeals Counsel. Therefore, the plaintiff filed a complaint seeking judicial review of the Social Security benefits decision and remand for further proceedings or for a benefit award in his favor. The plaintiff argued that the Social Security Commissioner erred in failing to consider pertinent medical evidence.
The Court must uphold the Social Security Commissioner’s factual decisions if they are supported by “substantial evidence” meaning such evidence as a reasonable mind might accept as adequate to support a conclusion. Therefore, the Court looks to whether the Social Security Commissioner’s conclusions were reasonable.
In making its determination, the Social Security Commissioner looks to whether a claimant: (1) worked during the alleged period of disability; (2) had a severe impairment; (3) had an impairment that meets or equals the requirements of a listed impairment; (4) could return to his past relevant work; and (5) if not, whether he could perform other work in the national economy.
The Court found that the ALJ did not determine whether the plaintiff’s symptoms rose to the level of disability and failed to consider the plaintiff’s impairments. The Court further found that the ALJ failed to consider the cumulative effect of multiple mental illnesses and gave the opinions of plaintiff’s physicians no weight.
Therefore, the Court granted the plaintiff’s motion and remanded the matter back to the Social Security Commissioner because without the ALJ’s actual evaluation of the cumulative effect of plaintiff’s mental conditions, the Court could not conclude that the ALJ’s decision was supported by substantial evidence.
Should you have any questions regarding this decision, or any liability lawquestions, please contact any attorney in our Liability Law Department.
Kirk v. Saul, 2021 WL 2823122, (D.Del., 2021)
Heckler & Frabizzio’s partnership with the Choir School of Delaware, has afforded our Firm the opportunity get involved in the community. Our partners, Maria Paris Newill, Patrick Rock, and Amy Taylor presented to the kids on July 23rd and discussed a career in the legal field. We also provided an ice cream truck that was a huge hit! If you would like to make a donation to this awesome organization please follow this link. Thank you!
Holland Workers’ Compensation Inn of Court
Gregory Skolnik, Partner, spoke at the Holland Worker’s Compensation Inn of Court seminar on July 28th. Gregory presented on the topic IAB trial practice and procedure.
Vice President of the ALA
Page Chase, Firm Administrator, was recently elected as vice president of the Association of Legal Administrators, First State Chapter. Page has served as a committee chair on the board for the last 3 years and intends to proceed to President in 2022. Congratulations, Page!
Please contact Page Chase, Firm Administrator, to submit exciting news including, promotions, adjuster updates, accolades, accomplishments, and the like. You may also submit ads for open positions.