November 2015

WORKERS’ COMPENSATION REPORTS

DELAWARE SUPREME COURT FINDS THAT WHEN CLAIMANT AGREES THAT INJURY “RESOLVED,” THERE CAN BE NO PERMANENT IMPAIRMENT

Claimant alleged a slip and fall injury to his back, ongoing total disability from the date of accident, and sought payment of medical bills. Prior to Hearing, Claimant accepted Employer’s settlement offer to acknowledge the work accident which had resulted in a lumbar spine “contusion” injury that had “resolved” with “limited” treatment. The parties executed settlement documents confirming the agreement and describing the “nature of injury” as “lumbar spine contusion – resolved.” These documents were filed and approved by the Board.

Nine months later, Claimant filed a Petition seeking permanent impairment benefits. This Petition was dismissed by the Board. The Superior Court reversed, finding that the parties agreed to “resolve” the petition generally, not that the injury was over. Employer filed a discretionary appeal to the Supreme Court, which was accepted after review.

The Supreme Court reversed, reinstating the original Board Order dismissing the Petition. The Court noted that the settlement correspondence and Board approved documents were clear that the injury had “resolved,” and that this term did not refer to settlement generally. The Court found that the Superior Court had overstepped the bounds of appellate review, substituting its own factual findings for those of the Board, without any satisfactory basis.

Maria Paris Newill, and Gregory P. Skolnik, Attorneys for Employer.

Christiana Care Health Services v. Kenneth S. Davis, No. 138, 2015 (Del. Nov. 3, 2015).

LITIGATION CASE LAW UPDATE

SUPREME COURT AFFIRMS SUPERIOR COURT DECISION IN DAVIS v. STATE FARM INSURANCE COMPANIES

On October 15, 2015, The Supreme Court of the State of Delaware affirmed the Superior Court’s February 2, 2015 opinion in Davis v. State Farm Insurance Companies that PIP claims must be presented in two years from the date of the accident, not two years plus 90 days.

In the Superior Court Opinion, Judge Butler explained that Plaintiff is not entitled to bring a PIP claim within two years plus 90 days absent a showing that the bills were impractical to submit within two years. Plaintiff’s counsel had argued that plaintiffs are “routinely” provided two years plus 90 days to bring a claim and cited the case of State Farm Mutual Automobile Insurance Company v. Ciamaricone for the proposition that the Court routinely allows a 90 day extension without requiring a showing of impracticability, but the Court explained that there is no citation from the Court as to any other case where the Court “generally” allows an additional 90 days. In the Court’s words, there is no “other case in which this Court ‘generally’ allowed such a ‘liberal’ interpretation to clear, unambiguous statutory language, and we have been unable to unearth one.”

Plaintiff also wanted the Court to reject any defenses alleging that Spine Care Delaware, LLC v. State Farm Mutual Automobile Insurance Company prohibits additional defenses when not raised in 30 days, but Judge Butler wrote that even if State Farm had not replied to the Plaintiff’s submission “the correct remedy would be to apply the rate of interest provided by 21 Del. C. § 2118B(c) to the amount of unpaid benefits due from the insurer.” The Court also pointed out that State Farm continued to maintain the same defenses throughout litigation. The Second Affirmative Defense
in the case alleged that the Plaintiff failed to submit medical bills and expenses within two years from the date of the accident.

Defendant State Farm’s attorney Patrick G. Rock says, “It is prudent to raise specific denials in the Affirmative Defenses and not rely on general assertions in PIP cases.” If you have any questions concerning the “grace period” for PIP claims or questions of whether interest is owed, feel free to call Patrick G. Rock, or one of the attorneys in the Liability Department.

Patrick G. Rock, Attorney for Defendant State Farm Insurance Companies

Davis v. State Farm Insurance Companies, No.87, 2015 (Del. Oct. 15, 2015)

EMPLOYMENT LAW UPDATE

CLAIMANT’S FAILURE TO APPEAR CAUSES FAILURE OF APPEAL

The Superior Court affirmed the Unemployment Insurance Appeal Board’s (UIAB) decision as to the determination of Claimant’s benefits overpayment due to Claimant’s failure to properly air his grievances as to the findings of overpayment before the Appeals Referee.

The Delaware Department of Labor determined that Claimant was overpaid benefits. The Claimant, who had the right to appeal the overpayment findings, filed his appeal five months after the deadline. Although his appeal was untimely, a hearing was still scheduled to discuss the appeal’s timeliness.

Claimant failed to appear at the timeliness hearing, and his appeal was subsequently dismissed. Claimant made an additional appeal, which was dismissed because of his failure to appear the second time. Claimant then appealed to the Superior Court seeking remedy.

The Superior Court found no error in the UIAB’s decision and that the UIAB decision was appropriate due to Claimant’s failure to properly participate in his claim.

For additional discussion of this matter, please contact one of our Employment Law department attorneys.

Williams v. Division of Unemployment Insurance and Unemployment Insurance Appeals Board (Oct. 21, 2015)

ANNOUNCEMENTS

NEWILL NAMED TO NAPW VIP WOMAN OF THE YEAR CIRCLE

Co-Managing Partner Maria Paris Newill has been inducted in the National Association of Professional Women (NAPW) VIP Woman of the Year Circle “for excellence, leadership and commitment to her profession, while encouraging the achievement of Professional Women.”

The attorneys and staff of Heckler & Frabizzio congratulate Maria on her accomplishment.

LAST CHANCE: WORKERS’ COMPENSATION CLE OPPORTUNITY

Workers’ Compensation Department attorney John W. Morgan will be presenting at the National Business Institute Continuing Legal Education seminar “Handling the Workers’ Compensation Case from Start to Finish.”

It’s not too late to register for this program, which will be offered on Wednesday, December 9, 2015 from 9:00 a.m. to 4:30 p.m. at the Doubletree Hotel Wilmington Downtown located at 700 King Street, Wilmington, DE 19801.

For more information and to register, please visit the seminar’s registration page via NBI’s website.