Claimant was involved in a compensable work accident and was placed on total disability. He filed a Petition to add the left shoulder as a compensable body part, while the Employer filed a Termination Petition to end total disability and to address resolution of injuries. Right before the Hearing, the Claimant conceded to end total disability, and thus the Employer communicated to the Workers’ Compensation Fund a request for it to waive reimbursement of total disability, while noting the Hearing was still going forward on other issues. The Fund agreed.

The morning of the Hearing, the Claimant requested a continuance of the resolution issue. The Board granted the continuance, and the Hearing went forward solely on the left shoulder issue. A few days later, the Board issued the Order on the continuance, which prompted the Fund to renege on its waiver of reimbursement; the Fund argued the continuance allowed it to bring in evidence to justify reimbursement and began scheduling a deposition. The Employer filed a Motion to Enforce the settlement/waiver, which was presented at a Legal Hearing, with the Board taking the matter under advisement while it considered whether to grant or deny the motion.

The Board subsequently issued a Decision on Claimant’s Petition, finding the left shoulder was never injured in the work accident. It accepted the testimony of Dr. Matz, who discussed the lack of shoulder complaints in the early records, the lack of acute MRI findings, and other data points arguing against a specific shoulder injury. As such, claimant’s Petition was denied.

A week later, the Board issued its ruling on the Motion to Enforce. The Order confirmed there was no indication of “deception or sharp practice on the part of Employer’s counsel,” and that the Employer was fully up front with the Fund about what it was seeking and what it intended to do; the continuance was strongly opposed by the Employer, and thus there was no foul play. The simple fact was the Fund had agreed to waive reimbursement, and the continuance was solely on the issue of resolution, and not on the issue of termination of total disability. Therefore, the Board ordered the Fund to abide by its waiver, resulting in no reimbursement from the Employer.

Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.

Gary Steadman v. Evergreen Waste Services, IAB No. 1519915, Decision on Petition to Determine Additional Compensation Due, dated Nov. 21, 2022, Order on Motion to Enforce, dated Nov. 28, 2022

LITIGATION LAW UPDATE

When Three Years May be Shorter than Two Years: An Analysis of Delaware’s Borrowing Statute

The Superior Court discusses Delaware’s borrowing statute to determine whether Delaware’s statute of limitations should apply to a claim governed by Missouri law. In this case, a baby asphyxiated when placed in a Fisher-Price Newborn-to-Toddler Rocker. The death occurred in 2013, but a similarly constructed Fisher Price Sleeper was not recalled by the company until April of 2019, at which time Plaintiffs assert they first became aware of dangers associated with the rocker.

The incident occurred in Missouri, which has a three-year statute of limitations. By contrast, Delaware’s shorter two-year statute of limitations includes a tolling period such that the statute does not begin to run until Plaintiffs have reasonable knowledge of the negligence causing the death. The Court analyzed Delaware’s borrowing statute, which requires Delaware courts to apply the shorter of the two statutes of limitation when there is a difference between Delaware’s and the one applicable to the state or country where the action arose. Defendants, citing Frombach v. Gilbert Associates, Inc., argued that the potential tolling of Delaware’s two-year statute made it, in effect, longer than Missouri’s straight three-year statute, and thus should be applied. 236 A.2d 363, 366 (Del. 1967).

The Court reasoned that the need to consider Delaware’s statute with its respective ‘accoutrements’ (e.g., accrual dates and any tolling doctrines) unnecessarily complicates application of the borrowing statute and stated “[a]llowing the discovery tolling exception to expand the statute of limitations created by statute is inconsistent with the wording of the borrowing statute and prioritizes when the statute of limitations begins rather than its length.” Nonetheless, the Court deferred, stating it felt obligated to apply prior caselaw precedent to the analysis. As such, the Court agreed that Missouri’s three-year statute of limitations was shorter when weighed against Delaware’s two-year statute with all its ‘accoutrements.’ Thus, the Court found that the shorter Missouri statute should be applied.

Shanna Marie Olsen and Gregory Joseph Olsen, Parents of Ryan Joseph Olsen, Deceased v. Fisher-Price, Inc. and Mattel, Inc., C.A. No. N21C-02-097 WCC (Del. Super. December 30, 2022)

EMPLOYMENT LAW

Case Reversed Due to Defendant’s Failure to Respond

Plaintiff worked for Defendant from 2014 through 2021. In response to the COVID-19 pandemic, Defendant put a vaccination/testing policy in place, which Plaintiff refused to comply with. Therefore, Plaintiff was terminated. Plaintiff filed for unemployment benefits, which were initially denied. During the Referee Hearing, the Plaintiff testified that she only had a few days to get tested and had difficulty making an appointment. In addition, Plaintiff testified that she did get tested but never sent the results to Defendant. The Referee affirmed the Claims Deputy’s decision, finding that the Plaintiff was terminated for good cause in connection with her work, and was disqualified for receiving unemployment benefits.

Plaintiff appealed the decision to the Unemployment Board, who concluded that the Plaintiff had been discharged from her employment for just cause. Thereafter, the Plaintiff appealed to the Superior Court, who defers to the Board’s decision so long as the decision is supported by substantial evidence and free from legal error.

On appeal, the Plaintiff argued that she complied with the Defendant’s testing policy and the Board’s findings were not supported by substantial evidence. However, the Defendant did not file an answering brief addressing Plaintiff’s arguments on appeal.

The Court reversed the Board’s findings and remanded the case to the Board for further proceedings because of Defendant’s failure to file an answering brief. The Court noted that when an appellee fails to comply with the Court’s briefing schedule, the Court may reverse an agency’s decision, notwithstanding the legal or factual soundness of that decision.

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

Tabitha Payne v. Unemployment Insurance Appeal Board and Ingleside Homes, Inc, 2023 WL 166271 (Del.Super., 2023)