May 2016
WORKERS’ COMPENSATION REPORTS
Industrial Accident Board Denies Claimant’s Counsel’s Motion for Attorney Fees
In this case, the claimant sought payment of disputed medical treatment and hospital bills allegedly related to a compensable work injury. Claimant’s counsel sent defense counsel a letter asserting an attorney’s lien for the medical benefit recovery, and also demanded that the medical treatment expenses be paid directly to claimant through her attorney. Following medical investigation, the Employer accepted the disputed treatment as compensable and issued payments for same directly to the medical providers pursuant to the Workers’ Compensation Healthcare Practice Guidelines.
Claimant then filed a Petition to Determine Additional Compensation Due seeking payment of those same medical treatment expenses, and claimant’s attorney again asserted an attorney’s lien and filed a Motion for Attorney’s Fees with the Industrial Accident Board.
Following a contested Legal Hearing, the Board issued an Order denying claimant’s Motion. The Board reasoned that 1) when there is no dispute as to the compensability of the medical services provided, the provider of that service is the proper entity to receive payment directly, and not the claimant; and 2) although the Board is authorized to award attorneys’ fees, even when a case is settled by the parties prior to Hearing, the matter must proceed at least to the point past a valid initial filing and not be moot from its inception. In this case, the bills had been paid directly to the providers before the Petition was filed. The Board thus faulted claimant’s attorney and held that “the Board will not award Claimant’s counsel a fee for his failure to exercise due diligence.”
Counsel for Employer, Amy M. Taylor, Esq.
Milourde Decembre v. Perdue Foods, LLC, IAB
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LITIGATION CASE LAW UPDATE
A Day Late is a Day Too Late for Statute of Limitations Purposes
In the case of Vicks v. Justinson Landing Apartments, Judge Rocanelli dismissed a lawsuit filed one day after the Statute of Limitations had expired. Plaintiff alleged that she was injured on January 10, 2014 when she slipped and fell on ice outside the apartment complex, and suffered physical injuries. The lawsuit was filed on January 11, 2016, two years and one day after the alleged incident on January 10, 2014. Judge Rocanelli referenced Title 10 of the Delaware Code Section 8119 that provides unambiguously the two-year Statute of Limitations for personal injury claims. Judge Rocanelli wrote “plaintiff did not commence this action until January 11, 2016. There is no reason to otherwise equitably toll the Statute of Limitations.” The Judge followed up with a comment that suggested an equitable tolling of Statute of Limitations is in the background of deciding cases on technical applications of the statute. Judge Rocanelli wrote:
“While this Court is cognizant of the public policy favoring resolution of cases on their merits, and that dismissing a claim that has been filed only one day after the Statute of Limitations may be harsh, the Court is satisfied that even if this matter were to proceed, plaintiff’s claims have no merit under the Continuing Storm Doctrine. Specifically, at the time that plaintiff suffered her alleged injuries, defendant did now owe plaintiff any duty to remove snow or ice at the apartments because a winter storm was ongoing.”
This is a reminder that even though technical defenses are available, it is helpful to have an application of merit based defenses.
If you would like to discuss any matter concerning the Continuing Storm Doctrine or the Statute of Limitations, please feel free to call one of the attorneys at Heckler & Frabizzio (302) 573-4800
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EMPLOYMENT LAW UPDATE
NCD Applauds Support for Fair Wages for People Who Are Blind or Have Significant Disabilities by the AbilityOne Commission
The National Council on Disability-an independent federal agency-applauds the declaration by the U.S. AbilityOne Commission “for all qualified nonprofit agencies participating in the AbilityOne Program to commit to, and begin (if not maintain), paying at least the Federal minimum wage, or state minimum wage if higher, to all employees who are blind or have significant disabilities working on AbilityOne contracts.”
AbilityOne is the largest source of employment for people who are blind or have significant disabilities in the United States. More than 550 nonprofit organizations employ disabled workers and provide services to the Federal Government as administered by the AbilityOne Commission, with assistance from National Industries for the Blind, and SourceAmerica. The move comes after a grand jury investigation into AbilityOne was started earlier this year after a series of CNN investigative reports exposed allegations of corruption at the Commission.
The declaration issued by AbilityOne on March 18, reflects advances first proposed by NCD in its 2012 landmark report, “Subminimum Wage and Supported Employment,” which called for change to antiquated labor policies of the 1930s that presumed people with disabilities were incapable of gainful employment at a competitive wage – a flawed presumption that has come under increasing and appropriate scrutiny in recent years. Section 14(c) of the Fair Labor Standards Act allows employers certified by the United States Department of Labor to compensate workers with disabilities at a rate below minimum wage.
“With programs like AbilityOne, the U.S. government has an opportunity to lead the way as a model employer of workers with disabilities, both directly and through socioeconomic initiatives in procurement,” said Clyde Terry, NCD Chair. “The commitment to model best practices and to innovate pioneering strategies that lead to compensation at prevailing wages expressed by AbilityOne affirms that integrated, supported, and competitive employment is rapidly becoming the new normal for disabled workers. NCD applauds their call to action, welcomes the progress the declaration represents and looks forward to its swift and meaningful implementation.”
As a result of the declaration issued by AbilityOne, NCD reaffirms the following policy recommendations made at the publication of our 2012 report, specifically:
“NCD Applauds Support for Fair Wages for People Who Are Blind or Have Significant Disabilities by the AbilityOne Commission.” National Council on Disability. 22 Mar. 2016. Web. 11 May 2016.
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ANNOUNCEMENTS
Heckler & Frabizzio’s welcomes Rebecca Wilcox
We are pleased to announce that Rebecca Wilcox has recently joined our firm as a law clerk. Pending her anticipated successful completion of the July Bar exam, she will be named an Associate of the Firm working with partner Maria Paris Newill. Rebecca will graduate from Widener University School of Law in May. Rebecca has interned with the Environmental Law Clinic at Widener, where she was also the Editor-in-Chief of the Widener Law Review. Furthermore, Rebecca has also obtained her Bachelor’s degree in Business Management from Wilmington University.
Congratulations to Heckler & Frabizzio’s Outstanding Receptionist
We are pleased to announce that Nancy Osborn will be the recipient of the Myrna L. Rubenstein Professional Support Recognition Award in the gold ballroom of the Hotel DuPont during the DSBA Law Day lunch on May 17, 2016 at 12 PM.
Heckler & Frabizzio would like to congratulate Nancy on her well-deserved award! Nancy is one of the most acknowledged employees of Heckler & Frabizzio. Thank you Nancy for your years of professional support and service!!!!
Paying it Forward
Please visit Anthony Frabizzio at the St. Anthony’s Italian Festival which runs from Sunday, June 12 through Sunday, June 19. The Frabizzio Family runs the Nona Strada Café at the Italian Festival that week. Admission will be $5.00 for ages 14 – 61. Under age 14 (if accompanied by parent or guardian 18 or older) & over age 61 FREE! 8-Day passes will also be available on-site for $15.00.
Workers’ Compensation Seminar
The annual Delaware Workers’ Compensation Seminar, which is co-sponsored by the Workers’ Compensation section of the Delaware State Bar Association and the Industrial Accident Board, was held on Wednesday, May 4th, 2016 at the Chase Center at the Wilmington Riverfront.
Cassandra Roberts gave introductory remarks, and then the Honorable Lowell L. Groundland, Chairman of the Industrial Accident Board, addressed the audience and announced his retirement after a prestigious career.
Several attorneys from Heckler and Frabizzio participated in the seminar as authorities on workers’ compensation matters in Delaware. Maria Paris Newill also gave a presentation as a member of three-party panel on Christiana Care v. Davis, a recently decided Delaware Supreme Court Opinion regarding the use of “resolved” language in settlement agreements and the implications this decision has had and will have on practicing workers’ compensation law in Delaware. John J. Ellis provided a case law review and Utilization Review roundup as a member of a three-party panel.
The keynote speech was given by the Honorable Kent A. Jordan, U. S. Court of Appeals Third Circuit. Judge Jordan peppered his remarks on Appellate Advocacy with well-timed anecdotal humor.
The seminar ended with a session on the ethics of disclosure in workers’ compensation matters.
For more information on CLE events, including DE Insurance Continuing Education licensee credits, please contact our office at 302-573-4800
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