Claimant filed a Petition for Additional Compensation Due alleging he sustained permanent impairment to the cervical spine at 20% and to the right upper extremity at 11% as a result of a September 6, 2016, work incident. Claimant’s permanent impairment rating was supported by the medical opinion of Dr. Stephen Rodgers. The Employer defended against this Petition with the medical expert opinion of Dr. Lawrence Piccioni, who provided ratings of 3% to the neck and 1% to the right shoulder, but only on the basis of giving the Claimant the benefit of the doubt.

At the time of the accident, Claimant was employed as a police officer for the Wilmington Police Department; he reportedly injured his right shoulder and neck when he attempted to restrain a man in the middle of an intersection. While the Employer had accepted limited, nonspecific injuries, it disputed the permanent impairment claims.

Following a Hearing before the Board, Claimant’s Petition was denied outright, as the Board found the Claimant failed to meet his burden of proof to establish any permanent impairment related to the incident. The Board noted that Dr. Rodgers was unaware of other health conditions the Claimant had, which were not attributed to the work incident.

The Board also questioned the mechanism of injury, finding the Claimant’s descriptions did not match the body camera footage of the incident. The Board found there was nothing on the body camera footage which could account for a serious permanent injury such as a herniated disc or torn ligaments in the shoulder. The Board then went on to note they did not find the Claimant credible, finding the Claimant’s testimony inconsistent with other evidence presented and that he was inconsistent with what he told medical providers and Dr. Piccioni at the Defense Medical Examination. Claimant was also not forthcoming about the effect of his unrelated conditions on his ability to return to work as a police officer.

Therefore, even though Dr. Piccioni had provided specific permanent impairment ratings, which he related to the accident, the Board declined to give the Claimant the benefit of the doubt. As such, the Board denied the Claimant’s Petition and awarded him no permanent impairment benefits.

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

James Wyatt v. City of Wilmington, IAB Hrg. No. 1447139 (May 05, 2022).

LITIGATION LAW UPDATE

A Triad of Exceptions to Delaware’s Collateral Source Rule – Medicare, Medicaid and TRICARE

Delaware Superior Court issued a Memorandum Opinion and Order granting, in part, defendant’s Motion in Limine to limit medical expense damages to the amount actually paid by TRICARE Insurance. In so deciding, the Court analyzed Delaware’s collateral source rule, as well as the well-established exceptions thereto for Medicare and Medicaid payments.

The collateral source rule allows an injured plaintiff to claim the full amount of treatment billed by a treating provider, and regardless of whether those bills may have been reduced or “written off” as the result of private health insurance or private payer negotiations. However, the Supreme Court has previously recognized exceptions to the collateral source rule when the write-off “accrues to the taxpayers” (e.g. when bills are reduced pursuant to Medicare or Medicaid payments). In so reasoning, the Supreme Court previously determined that, in the context of government-funded insurance, “(1) compensating a plaintiff for such write-offs would not serve to make the plaintiff whole because those amounts will never be paid by anyone, and (2) such write-offs primarily benefit taxpayers, not injured plaintiffs.”

The Court in Lacy determined that TRICARE benefits for active duty servicemembers, retirees, family members and survivors fit into this same carve out as applied to Medicare and Medicaid. The Court reasoned that TRICARE benefits are taxpayer funded through the Department of Defense, and that provider write-offs thus benefit the taxpayer and not the individual TRICARE member. The Court also reasoned that the TRICARE member has no personal responsibility to pay the written-off amount. Thus, the Court confirmed that TRICARE Insurance is another exception to the collateral source rule and plaintiffs benefitting from TRICARE Insurance may only claim the amount paid by TRICARE, rather than the full amount of services billed by the treating providers. The Court, however, deferred judgment on whether this ruling would impact claims for future medical treatment.

Nathaniel Lacy, III v. Bayhealth Medical Center, Inc., C.A. No. K20C-10-005 NEP (May 25, 2022)

EMPLOYMENT LAW

Plainitff’s Appeal Determined to be Untimely

Plaintiff was terminated from her employment and filed a claim for unemployment benefits. A Claims Deputy denied her claim, stating that Plaintiff received four weeks of overpayment of benefits. Plaintiff appealed the decision, but it was received one day after the appeal deadline. A hearing before the Appeals Referee was held to determine whether the plaintiff could demonstrate good cause for submission of an untimely appeal.

Plaintiff testified that her untimely appeal was due to COVID- related delays with the U.S. Postal Service. The Referee denied the plaintiff’s appeal as untimely. Further, the Referee found that no “mistake or error made by employees of the DOL” caused the delayed receipt of plaintiff’s appeal. The plaintiff appealed the Referee’s decision to the Unemployment Board. During the Board hearing, the Plaintiff argued that she was not given sufficient time to file an appeal because of post office delays.

The Board affirmed the Referee’s decision and found the DOL’s decision letter was properly mailed, and the Plaintiff’s appeal was untimely. Further, the Board found that the Plaintiff failed to provide evidence of “severe circumstances” that prevented the Plaintiff from making a timely submission and the Board failed to “modify or reverse any decision of an appeal tribunal.” The Board also denied to entertain the Plaintiff’s argument regarding the appeal period. The Plaintiff argued that “the appeal period is too short for the mail to arrive and to respond.” However, the Board did not find a failure in due process or an error in the Referee’s decision.  The Plaintiff appealed to the Superior Court.

The Superior Court reviewed the Board’s decision for legal error and determines whether the Board’s decision was supported by substantial evidence which is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Section 3318 of Title 19 of the Delaware Code gives parties 10 days to appeal a decision from the Claims Deputy, which begins to run on the date the referee’s decision is deposited in the mail unless the mailing fails to reach a party because of some mistake made by employees of the Department of Labor.

The Court concluded that the Board’s decision was supported by substantial evidence and without legal error because the Plaintiff never provided any evidence regarding the claimed delay in receipt of the DOL’s decision nor did she explain how COVID affected her mail. The Court affirmed the Board’s decision.

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

Sklodowski v. Unempl. Ins. App. Bd., 2022 WL 1499753 (Del. Super. May 12, 2022)