Claimant was involved in a 1/19/22 work accident involving accepted neck and low back injuries. The Employer filed a Petition to Review seeking to terminate the claimant’s ongoing total disability benefits. The Board granted Employer’s Petition and terminated the claimant’s total disability benefits.

The Board opined that Dr. Grossinger was “just not credible”, and his testimony filled with shortcomings. Dr. Grossinger was diagnosing the claimant with a “non existent” head injury, as claimant denied hitting her head and denied having concussion symptoms. No other provider mentioned any head injury or cognitive difficulties. Dr. Grossinger also diagnosed the claimant with a “double crush syndrome”, which was not supported by medical testing, an impossible diagnosis for the claimant, as her symptoms were not all on one side of her body. The Board stated, “To say this bizarre testimony impacts the credibility of Dr. Grossinger’s opinions is an understatement.”

The Board also rejected Dr. Grossinger’s creative explanations for a lengthy gap in treatment – Dr. Grossinger’s personal vacation in Florida and COVID-19 issues. As to his vacation, the Board wrote, “good for him, but Dr. Grossinger could have easily referred the claimant to another spine practitioner” to continue treatment during Dr. Grossinger’s trip. As to the COVID-19 excuse, the Board said there was no evidence of any impact on healthcare availability or State restrictions at that time. The gap in treatment called into question Dr. Grossinger’s opinions on continuing diagnosis, restrictions, and treatment.

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

Tabre Nelson v. Professional Realty Management, IAB Hrg. No. 1520650 (May 4, 2023).

LITIGATION LAW UPDATE

Plaintiff Fails to Prove She was

 Able and Available to Work

Plaintiff was employed by Defendant as an assistant store manager but stopped working due to kidney issues.  Due to the COVID-19 pandemic, Plaintiff requested a job where she would not have to interact with customers, as it was too dangerous given her preexisting medical condition. The Defendant informed the Plaintiff that it was not possible for her to avoid interacting with customers. Therefore, the Plaintiff filed for unemployment benefits.

Pursuant to 19 Del. C. § 3315(3), employees must be able and available to work in order to receive unemployment benefits. The Claims Deputy found that the Plaintiff was not able and available to work, making her ineligible to receive benefits.  The Plaintiff appealed her decision to the Appeals Referee, explaining that she was looking for work that allowed her to stay at home.  The Referee also determined that the Plaintiff was not able and available to work because she had not been released by her doctor to return to work without restrictions.

Next, the Plaintiff appealed to the Unemployment Insurance Board once again arguing that she requested light duty from the Defendant and her doctor had not approved her for work with the public. The Board affirmed the Referee’s decision. The Plaintiff then appealed to the Superior Court.

The Superior Court looks to whether the Board’s decision is supported by substantial evidence, such evidence that a reasonable mind might accept as adequate to support a conclusion. The Court will only overturn the Board’s decision if the Board acts “arbitrarily and capriciously or exceeds the bounds of reason in view of the circumstances and has ignored recognized rules of law or practice so as to produce injustice.”

In her appeal, the Plaintiff argued that the Board did not have the complete record and requested that the Court review additional emails and documents that were not before the Board. However, since the Court is limited to the record that was before the Board, the Court will not consider new evidence.

Next, the Plaintiff argued that she was able, available and actively seeking work. Had the Defendant made accommodations for her, the Plaintiff stated that she would have remained employed. The Court explained that a claimant is not “able and available” if she is cleared to work with restrictions an employer cannot accommodate.  The Court stated that unemployment insurance is not health insurance or disability insurance and since the Defendant could not accommodate the Plaintiff’s needs, the Plaintiff was not “able and available.”

Therefore, the Court found that the Board’s decision to deny the Plaintiff benefits was supported by substantial evidence. The Board’s decision was affirmed.

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

Derock v. Unemployment Insurance Appeal Board (Del. Super, 2023)

EMPLOYMENT LAW

Plaintiff Fails to File Timely Appeal

Plaintiff filed for unemployment benefits with the Department of Labor (“DOL”) on April 10, 2022. The Claims Deputy found the plaintiff ineligible for benefits because she was not “unemployed” as defined by 19 Del. C Section 3302(17).

Under 19 Del. C Section 3302(17):

An individual is unemployed in any week during which the individual preforms no services and with respect to which no wages are payable to the individual, or in any week of less than full-time work if the wages payable to the individual with respect to such week are less than the individual’s weekly benefit amount plus whichever is the greater of $10 or 50% of the individual’s weekly benefit amount.

The Claims Deputy mailed the Notice of Determination to the Plaintiff on January 1, 2022, advising the Plaintiff that she was ineligible for benefits and that she could appeal the decision within 10 days, which would be on or before July 11, 2022.  In this case, the Plaintiff filed an appeal on July 20, 2022. Since the Plaintiff failed to file her appeal before July 11, 2022, the DOL filed a Notice, informing the Plaintiff that the Claims Deputy’s decision was final and binding. On August 30, 2022, the Plaintiff appealed to the Appeals Referee to determine the issue of whether the Plaintiff’s right of appeal was filed in a timely manner. The Referee determined that the appeal was untimely and that the DOL committed no administrative error. The Plaintiff filed a second appeal to the Unemployment Board, who affirmed the referee’s decision on November 4, 2022.

Following the Board’s decision, the Plaintiff appealed to the Superior Court, who only looks at whether or not there was substantial evidence to support the finding of the Board. The Court reviews the Board’s rulings for abuse of discretion and will only disturb the Board’s decision where the Board “acts arbitrarily or capriciously or exceeds the bounds of reason in view of the circumstances and has ignored recognized rules of law or practice so as to produce injustice.” The Court noted that the time for filing an appeal is an express statutory condition of jurisdiction that is both mandatory and dispositive. However, if the delay is caused by an administrative error on the part of the DOL, then the Court could find that the Claims Deputy’s decision is not final.

In this case, the Plaintiff argued that her appeal was filed late because she received the Notice of Determination from the Claims Deputy late. However, since the Plaintiff did not provide any evidence to suggest an error and the Notice of Determination was mailed to the Plaintiff’s address on file, the Board did not find any administrative error on part of the DOL. Further, Notice that is “correctly, stamped and mailed, is presumed to have been received by the party to whom it was addressed.”

Therefore, the Court upheld the Board’s decision and found that the Referee’s decision was supported by substantial evidence and free from legal error. Further, the Court concluded that the Board did not abuse its discretion when it declined to accept the Plaintiff’s appeal for review.

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

Scull v. Unemployment Insurance Appeal Board, 2023 WL 3364513 (Del. Super, 2023)