Claimant filed a Petition alleging an 11/24/21 work related motor vehicle accident with neck and low back injuries, a significant ongoing period of total disability, and payment of all reasonable, necessary, and causally related medical bills and expenses, including pain treatment with Dr. Cary, and orthopedic care with Dr. Zaslavsky. Employer argued that as Claimant had a prior commuted 2013 neck and back claim with a different insurance carrier, that Nally v. Standard Distributing applied so that to shift liability to the 2021 accident, Claimant would need to prove both an (1) untoward event, and (2) a new injury.

The Board found that the minor motor vehicle accident constituted an “untoward event.” However, the Board ruled that there was no new injury, so that Claimant’s Petition was denied. The opinion of defense expert, Dr. Matz, was deemed more credible than Dr. Zaslavsky. Claimant had an extensive history of multiple claims involving neck and back injuries before November 2021. The medical evidence established recurring symptoms and treatment in association with each of those multiple claims. MRIs were ordered in 2004, 2009, 2013, and 2016. The diagnoses were cervical and lumbar strain/sprain injuries. Claimant treated with chiropractic, therapy, narcotics, muscle relaxers, and medical marijuana. Records in 2016 showed Claimant was recommended for spinal injections. Claimant was kept out of work for several periods. Dr. Cary opined Claimant had permanent impairment to the neck and back in connection with the 2013 accident. As of his last treatment in 2016, it was clear that Claimant’s problems were unresolved. Unlike Dr. Zaslavsky, Dr. Matz actually reviewed pre and post-accident imaging of the neck and back and testified credibly that there was no new injury shown in 2021.

The Board also questioned Claimant’s credibility. His statement that he was “100%” after the 2016 accident conflicted with the records. He failed to disclose his prior neck and low back injuries after the 2021 accident to multiple providers. He did not disclose any injury to employer for several days after the 2021 incident. When he finally sought treatment in the Emergency Room, his examination was normal, and no imaging ordered. He denied radicular complaints. Yet one month later when he saw Dr. Cary, he complained of 10/10 neck and low back pain with radiation into the bilateral arms and legs. After Dr. Cary discussed work hardening with the Claimant, he never returned to Dr. Cary. He transferred care to Dr. Zaslavky, upon advice of his uncle, although no medical professional suggested that. Claimant was then not compliant with even Dr. Zaslavsky’s recommendations for treatment. He cancelled, no showed, or displayed questionable effort at over a dozen therapy appointments.

Claimant has pursued an appeal, that is presently pending before the Superior Court. Stay tuned for further updates as the appeal progresses!

Should you have any questions regarding this matter, please contact Greg Skolnik or any other Workers’ Compensation attorney.

Marquan Taylor v. Greggo & Ferrara, IAB Hrg. No. 1520266 (Oct. 31, 2022).

LITIGATION LAW UPDATE

Motorist Coverage Requires a Motor . . . Lots of “Horse Power” Not Sufficient

The Superior Court granted Defendant’s motion to dismiss, holding that a horse-drawn buggy does not qualify as an uninsured motor vehicle under Plaintiff’s insurance policy. Plaintiff and the at fault horse-drawn buggy were in an intersectional accident when the horse-drawn buggy failed to yield the right-of-way at a stop sign. The buggy carried no insurance, so Plaintiff filed suit for UM benefits under her own policy. Defendant denied the claim and filed this motion to dismiss.

The Superior Court, based on principles of contract and statutory interpretation, determined that the plain meaning of “motor vehicle” does not include a vehicle pulled by a horse. Looking at various dictionary definitions of “motor vehicle”, the Court reasoned that “motor vehicles” require a method of self-propulsion, whereas a horse-drawn buggy would be no different mechanically than a wagon pulled by a child.

The Court also reasoned, based on public policy considerations, that UM coverage provides protection to policyholders when a tortfeasor otherwise required by law to have insurance coverage has failed to do so. However, there is no financial responsibility law requiring buggies in Delaware to carry insurance. Thus, any coverage gap caused by this scenario should be addressed by the General Assembly and not by the courts.

Vanessa Harper and Earnest Harper v. State Farm Mutual Automobile Insurance Company, C.A. No. K22C-07-005 NEP (Del. Super. December 8, 2022)

EMPLOYMENT LAW

Employee Receives Second Chance at Unemployment Benefits

Plaintiff filed for unemployment benefits after being denied an accommodation from his Employer. Plaintiff was admitted to the hospital with symptoms of a heart fibrillation and was out of work for over a month. After a visit with his physician, the Plaintiff was cleared to work full time at a desk job. However, the Employer had no sit down or desk jobs available.

The Claims Deputy denied Plaintiff’s claim for unemployment benefits because it was determined that the Plaintiff had voluntarily left his job for personal or health reasons and had failed to meet his burden to establish that he had left with good cause attributable to his work. The Plaintiff appealed the decision to the Appeals Referee, who affirmed the decision. However, the Appeals Referee concluded that the Plaintiff had involuntarily separated from his position due to a medical condition but had not met his burden of providing a doctor’s certificate indicating that he was able to work and was available to work.  The Plaintiff then appealed to the Board, who concluded that the Plaintiff left work for “personal reasons” and had not “established good cause to quit” his job.

Following the Board’s decision, the Plaintiff appealed to the Superior Court arguing that the Board erred in concluding that he had voluntarily quit his job. The Court reviewed the Board’s decision for substantial evidence – such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. If the Plaintiff left work involuntarily because of illness, the burden is to show that the Plaintiff is able to work and available to work (a showing that must be substantiated by a doctor’s certificate.)

The Court found that both the Board and Claims Deputy mistakenly analyzed the case as a voluntary departure- instead of involuntary. Therefore, the Court remanded the case back down to the Board because the Board made no finding of fact in support of its assertion that the Plaintiff had voluntarily left his job. The Court agreed with the Referee, that the Plaintiff involuntarily left work because of his health condition and actively sought to return to work with accommodations.

The Court also remanded the case back down to the Board to decide whether the Plaintiff was able to and available for work since neither the Referee nor Board addressed the issue. An individual is “available to work” when he or she is “willing, able and ready to accept employment which he has no good cause to refuse, that is, he is genuinely attached to the labor market.”  An employee does not have to be able to return to his usual or prior job, he is available to work so long as “he is able to work and is qualified for work, albeit in a different occupation.”

Therefore, the Board’s decision was reversed, and the matter remanded for further proceedings.

Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.

Willam Fretz v. Unemployment Insurance Appeal Board and Vincenzo Maddalena, 2022 WL 17430375 (Del.Super., 2022)