MISSING:
Knitty, mate to Weaver, last seen entering a washing machine at the corner of Market Plaza and Commerce Street. Went missing sometime around 7:30 PM last Tuesday and never made it to next destination (the dryer). If seen do not approach or apprehend, just please call: H&F @ 302/573-4800. Our thoughts & prayers go out to Weaver at this time.
WORKERS’ COMPENSATION LAW
Board Denies Injecting “PRP” in its Decision
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Claimant was involved in a compensable work accident in 2019 injuries to multiple body parts, including the low back. In 2021, the Claimant filed a Petition to Determine Additional Compensation Due seeking payment for lumbar spine Platelet-Rich Plasma (“PRP”) injections.
Claimant called Dr. Grossinger in support of his position. Dr. Grossinger suggested that PRP was appropriate to consider given the failure of various other conservative modalities. As part of his testimony, Dr. Grossinger stated commentary made by Dr. Rudin in the medical records that PRP is a fraction of the cost of lumbar surgery, with quicker recovery, and that the vast majority of Dr. Rudin’s PRP patients improve and do not go on to have surgery.
Employer’s medical expert, Dr. Gelman, alleged that PRP injections are an “investigational” procedure with unproven efficacy and not part of the Delaware Practice Guidelines. Dr. Gelman further stated that PRP was not FDA approved and there were no high-level studies to prove PRP is effective.
The Board found in favor of the Employer. The Board noted that Dr. Grossinger is not an orthopedist and has no experience with PRP injections to the spine. The Board agreed with Dr. Gelman that while some reputable medical facilities are conducting PRP treatment, there are no high-level studies to prove its effectiveness. With that, the Board indicated that the Claimant failed to meet his burden to prove PRP was reasonable and necessary to his low back treatment.
Should you have any questions regarding this Decision, please contact John W. Morgan, or any other attorney in our Workers’ Compensation Department.
Matthew Bryant v. Marjam Supply Co., Inc., IAB Hrg. No. 1481980 (Sept. 28, 2021).
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EMPLOYMENT LAW
Plaintiff’s Claim for Unemployment Benefits Fails; Plaintiff Admits She Was Never Unemployed
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Plaintiff was hired by the Defendant in October 2019, working full time. Plaintiff also owned and operated a separate business, which was temporarily closed during COVID-19. In March, Plaintiff filed for unemployment benefits and a Claims Deputy determined that the Plaintiff was not eligible for unemployment benefits because she was not unemployed. The Plaintiff appealed the decision to the Appeals Referee and testified that she was employed full time with the Defendant and did not have any loss of income from the Defendant. The Referee upheld the Claims Deputy decision, and the Plaintiff appealed to the Board. The Board affirmed the decision as the only issue was whether the Plaintiff was unemployed.
Plaintiff filed an appeal to the Superior Court and advanced fourteen arguments for why the Board erred, including that she was denied due process, and the Board’s decision was incorrect.
The Court reviews the Board’s decision to determine whether it is supported by substantial evidence and free from legal error. The Board is authorized to enact regulations pertaining to hearing procedures. The Board may “affirm, modify, or set aside any decision of an appeal tribunal on the basis of evidence previously submitted.” The Board did not hold a hearing, but instead based its decision after reviewing the record. The Court found that the Board’s procedures were free from legal error and there was no abuse of discretion. The Court further found that the Board did not err in affirming the Referee’s decision without a further hearing. Therefore, the Plaintiff was not denied due process.
The Plaintiff also argued that she was entitled to federal pandemic assistance, which was not addressed by the Board. Since the only issue before the Board was to determine whether the Plaintiff was unemployed and in turn eligible for benefits, the Court found that the Board did not err by limiting its review to that issue.
The Court found that substantial evidence supported the determination that the Plaintiff was not unemployed. Therefore, 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.
August v. People’s Place II, Inc., 2022 WL 537405, at *1 (Del. Super. Feb. 23, 2022)
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LITIGATION CASE LAW
Court Limits the Admissibility of Biomechanical Testimony in Personal Injury Case
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Defendant changed lanes and side-swiped a vehicle occupied by Plaintiff. Thereafter, Plaintiff sued Defendant for personal injuries. During the course of discovery, Defendant retained a biomechanical engineer (Engineer) to perform a force and impact analysis regarding the accident. Engineer opined the accident was far less dramatic than as described by Plaintiff and resulted in forces to Plaintiff which could not have injured Plaintiff. Subsequently, Plaintiff moved to exclude the Engineer’s testimony to the extent it related to how the accident occurred as well as Plaintiff’s ability to withstand physical forces.
The Delaware Superior Court concluded Engineer’s testimony regarding how the accident occurred, including the physical description offered by Engineer, was legitimate, relevant evidence which contradicts Plaintiff’s description, and therefore was admissible at trial.
As for the Engineer’s analysis of Plaintiff’s ability to withstand physical forces, the Court reviewed Delaware case law regarding the circumstances under which an engineer may address medical causation as well as the trial judge’s duty to act as a gatekeeper to ensure generalized conclusions of an expert are applicable to a particular individual.
The Court found that Plaintiff’s unique medical history and the ‘peculiarities’ of her condition could not be accounted for by Engineer and therefore his opinions were an improper invasion into the medical field by one who has no medical expertise. As such, Plaintiff’s Motion was granted in part limiting Engineer’s testimony to events of the accident.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Crum v. Corbin, Jr., et al., 2022 WL 667339 (Del. Super. Ct. Mar. 7, 2022).
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