Claimant was involved in a 3/6/20 accident where he strained his low back turning in his work vehicle. 7% permanency to the lumbar spine was negotiated following production of a permanency report from Dr. Rodgers. Claimant was then involved in a second accident at work on 9/22/21. While working as a School Resource Officer, he was attempting to restrain a student, and fell to the ground, again injuring his lumbar spine. Dr. Rodgers then rated claimant at 21% overall permanency to the lumbar spine (for a 14% increase over what had been negotiated before), relying on the range of motion method of the 5^th Edition of the AMA Guides. Dr. Piccioni conducted a defense medical examination and provided an overall rating of 11% (for a 4% increase), under both the 5^th and 6^th Edition diagnosis-based categories. On 7/24/23, the Board held a Hearing to determine the appropriate rating.

The Board issued a Decision finding Dr. Piccioni’s rating more appropriate, and commenting that Dr. Rodgers’ assessment was “excessive” and “inflated.” Neither expert’s physical examination showed signs of radiculopathy. Dr. Rodgers conceded on cross-examination that the only changes on physical examination between his two permanency reports were 5 degrees loss of forward flexion and sluggish reflexes on the right, both of which he conceded were not significant. Dr. Rodgers’ overall rating would be consistent with a patient who had significant ongoing radiculopathy, a fracture that had not healed well, or a multilevel fusion. While the Board appreciated claimant’s subjective complaints had somewhat worsened since the second accident, he had also been released full duty and was working in that capacity for months leading up to the Hearing. Dr. Piccioni’s rating more accurately reflected claimant’s current functional abilities.

Should you have any questions regarding this Decision, please contact Greg Skolnik or any other attorney in our Workers’ Compensation Department.

Giakas v. State, IAB Hrg. No. 1516294 (Aug. 25, 2023)

EMPLOYMENT LAW UPDATE

Severance Pay Deemed Wages In Unemployment Benefits Analysis

Claimant was employed as a paralegal from October 2002 to August 2022. In August 2022, Claimant and his law firm employer executed an agreement where Claimant would be paid one year’s salary in the amount of $94,450.00 in consideration for the separation agreement from his employer. In September 2022, Claimant filed for Delaware unemployment insurance benefits and was denied as the lump sum Claimant received was deemed severance pay by a claims deputy.

Claimant appealed the deputy’s decision, and a telephone hearing was held. Claimant argued that the agreement with his employer was not to sever an employment relationship but was to resolve an ethics claim that Claimant filed concerning another firm employee. The hearing referee affirmed the claims deputy’s determination.

On appeal to the Unemployment Insurance Appeals Board, the Board found that Claimant’s primary argument was whether the lump sum was a severance payment, as if it was not, it may not affect his receipt of unemployment insurance benefits.

The Board held that the one-year salary payment coupled with the termination of the employment relationship operated as a severance. Moreover, the Board held that the payment is classifiable as a “dismissal payment” pursuant to 19 Del. C. §3302(18). The Board reasoned further that even if the payment was to resolve an unrelated dispute, the payment’s classification is still wages. The Board argued that classifying the lump sum as wages was in the spirit of public policy as Claimant was not left in “economic instability” because of his separation from the Employer. The Board affirmed the appeals referee’s decision to the Delaware Superior Court.

Claimant executed a kitchen-sink approach in his appeal to the Delaware Superior Court, as he brought multiple arguments arising from, among other things, the separation agreement and his due process rights. While the Superior Court reviews questions of law de novo, it does not make its own factual findings and must uphold Board decisions unless the Court finds that the Board “‘acted arbitrary or capriciously’ or that its decision ‘exceeded the bounds of reason.’”

The Court affirmed the Board’s decision as it was based on “substantial evidence and free from legal error.” The Court found the separation agreement to be binding and the complete understanding between the parties. The Court found that Claimant suffered no prejudice during the telephone hearing. The Court found further that the Board’s “buttressing its decision with public policy considerations” was not erroneous.

Should you have any questions regarding this decision, especially the navigation of severance agreements, or any employment law concerns, please contact any attorney in our liability department.

William W. Weller v. Morris James, LLP and Unemployment Insurance Appeal Board, C.A. No.: N23A-03-007 FWW (Del. Super. Ct. November 30, 2023).

LITIGATION LAW UPDATE

The Makings of a True Crime Thriller . .  and the Equally Enthralling Discovery Dispute that Follows

The Superior Court denies plaintiffs’ motion to compel, finding in part that the accidental partial production of records due to a clerical error does not constitute waiver of attorney-client privilege.

A Delaware mental health therapist was murdered at home by one of her patients, Christopher Frick. Following the crime, Christopher returned to his parents’ home, and his parents promptly called the police, leading to Christopher’s arrest and subsequent incarceration. The therapist’s Estate then sued Christopher and his parents for wrongful death, and defendants sought coverage under their homeowners’ insurance policy with State Farm.

State Farm agreed to provide the parents with a defense under a reservation of rights, but denied coverage as to Christopher. The parties stipulated to dismissal of all claims against the parents, but the Court subsequently entered a summary judgment (which was not contested) on behalf of plaintiffs against Christopher in an amount exceeding 15million. Christopher assigned his rights under the policy to plaintiffs, who filed suit against State Farm alleging it had wrongfully denied Christopher coverage under the policy.

As part of that litigation, the Estate sought production of the carrier’s “Claim File.” As it turns out, the “Claim File” had been separated into two separate files, one for Christopher and one for his parents. State Farm voluntarily produced Christopher’s file during discovery, but maintained that the parents’ file was not relevant. Plaintiffs relied on Tackett v. State Farm Fire and Cas. Ins. Co. to argue that “the disclosure of even part of the contents of a privileged communication surrenders the privilege as to those communications.” Plaintiffs argue that, because the parents’ file and Christopher’s file were, at times, comingled, that production of one entitled them to complete production of both. The Court disagreed and ruled that the two files were separate, and the accidental misfiling of some of the parent documents into Christopher’s file, and thus accidental partial production of those misfiled documents, does not constitute waiver of privilege as to the remaining parent file documents. The motion to compel was denied.

Cynthia Boatright, et al v. State Farm Insurance Company, C.A. No. N20C-11-022 CEB (Del. Super. Nov. 28, 2023)