December 2014 Newsletter
WORKERS’ COMPENSATION REPORTS
Significant Work Injury Not a Free Ticket for Surgery: Cervical Spine Condition Found Not Work Related
Claimant sustained a compensable work injury when he fell approximately 12 to 20 feet from an excavator resulting in accepted injuries including concussion, left ear laceration with associated hearing loss, fracture of the left clavicle, fracture of the coracoid process at the base, fracture through the scapular spine, and fracture of the left temporal bone. Claimant then filed a Petition seeking acknowledgment of a cervical spine injury and surgery approval.
Dr. Andrew J. Gelman testified on behalf of the Employer that claimant had a pre-existing history of neck complaints with documented multi-level disc disease and radiculopathy with resulting upper extremity numbness and weakness as far back as 1999 and as recently as 2008. Claimant had undergone diagnostic studies and injections prior to the work accident for his cervical condition. Emergency room records from the date of accident did not document any neck injury and claimant’s neck was noted to be “non-tender.”
Dr. Gelman concluded that claimant’s complaints of neck and upper extremity pain, tingling and weakness approximately five months after the work accident were consistent with the natural progression of his longstanding degenerative disease and were not related to the work accident. Claimant testified that he had no problem doing his physically demanding pre-injury job and that he had no complaints of neck or arm pain for at least a year before the work injury.
The Board accepted the opinion of Dr. Gelman noting that claimant had chronic neck issues and the contemporaneous medical records did not reflect any traumatic injury to his neck. The Board also found claimant’s testimony to be disingenuous and not credible, as claimant testified that he did not recall being informed of a pre-existing cervical spine issue. Claimant’s Petition was denied.
Maria Paris Newill, Attorney for Employer
Clifton McNatt, Jr. v. Daisy Construction Company, Hearing No. 1410464 (Nov. 25, 2014).
LITIGATION CASE LAW UPDATE
Workers’ Compensation Statute Amendments Have No Application to PIP Coverage, Court Rules
The Superior Court denied Defendant’s Motion for Summary Judgment seeking a determination that amendments to the workers’ compensation statute have changed the prior rule that personal injury protection (“PIP”) benefits are primary over workers’ compensation benefits.
Philadelphia Indemnity Insurance Company contended that more recent amendments to the workers’ compensation statute make it clear that payment of medical expenses must be made by the workers’ compensation carrier or the PIP carrier will be unable to obtain the full subrogation which is allowed pursuant to the PIP statute at 21 Del. C.§ 2118(g).
The Plaintiff contended that the amendments are exclusive to workers’ compensation benefits and have no application to personal injury protection coverage, to which the Court agreed. In the November 26, 2014 unpublished order, Judge Vaughn said the amendment to the Workers’ Compensation statute, seeking to control the medical costs, does not apply to a PIP carrier.
George E. Tunnell v. Philadelphia Indemnity Insurance Company C.A. No.: K13C-02- 042, Nov. 26, 2014.
If you would like to discuss the above and how it impacts the application of PIP coverage, please feel free to contact one of our Liability attorneys.
ANNOUNCEMENTS
We are pleased to announce that Kristen S. Swift (Widener School of Law, ’14), sworn into the Delaware Bar on December 10, 2014, has been named an associate attorney in the Workers’ Compensation department.
Additionally, we extend our congratulations to John Gilbert who is celebrating his 11th year anniversary with the firm and William D. Rimmer who is celebrating his 21st anniversary with the firm. We thank them for their years of dedication to the firm and our clients.
Lastly, the attorneys, paralegals, and staff of Heckler & Frabizzio wish you a joyous holiday season and a safe and prosperous new year.