WORKERS’ COMPENSATION REPORTS

CLERICAL ERRORS DO NOT RESCUE CLAIMANT WHO FILED PETITION OUTSIDE STATUTE OF LIMITATIONS

Employer filed a Motion to Dismiss Claimant’s Petition as it was filed outside of the two year statute of limitations. Claimant argued that Employer impliedly accepted the claim because Employer paid over 75 medical bills during a twenty-two month period post-accident, so the five year statute of limitations for accepted claims would apply.

The Board rejected claimant’s arguments. The claims adjuster testified that he was investigating the claim and questioning compensability when the bills were paid. All but 5-6 of the bills were paid pursuant to the “IN DISPUTE” payment provisions of 19 Del. C. § 2322, without admission of liability, though the statutory language on about 10-15 of the forms may not have been in the proper font size.

These errors did not establish that the bills were paid under a “feeling of compulsion” sufficient to result in an implied acceptance of the claim, because the claims adjuster provided credible testimony that they were the result of computer and/or clerical errors. Claimant testified that immediately following the alleged work accident, she was aware that the claims adjuster was questioning the claim. Moreover, claimant admitted that she did not read any of the forms, so any errors in the language or font size used could not have lulled claimant into believing that the claim had been accepted.

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

Jones v. Christiana Care Health Services, IAB Hrg. No. 1396595 (Sept. 28, 2015).

LITIGATION CASE LAW UPDATE

PLAINTIFF’S SUIT TOSSED FOR NOT SUBMITTING TO EXAMINATION UNDER OATH

The Superior Court granted Defendant’s Motion to Dismiss due to Plaintiff’s failure to submit to an Examination Under Oath (“EUO”), which Plaintiff was contractually obligated to undergo pursuant to her automobile insurance policy.

Plaintiff was injured in an accident involving an uninsured driver. Subsequently, she filed her personal injury protection (“PIP”) claim with her insurance company, who then paid expenses up to her policy limits of $15,000.00.

Defendant State Farm Fire and Casualty Company then requested that Plaintiff submit to an Examination Under Oath to investigate Plaintiff’s claim for uninsured motorist (“UM”) benefits.

Instead of submitting to the EUO, Plaintiff filed suit arguing in part that Defendant has a contractual liability to “[stand] in the shoes of the tortfeasor.” By filing suit, Plaintiff ironically attempted to bypass her own contractual obligation to aid Defendant in the investigation of her claim.

The Court found that Plaintiff did not comply with the contractual conditions of the automobile policy, and that because she has not met her obligations, Defendant is not required to pay any UM benefits.

Please contact one of our Liability Department attorneys for additional discussion of this matter.

Marrero v. State Farm Fire and Casualty Company, C.A. No.: N14C-08-104 JRJ; (September 14, 2015)

EMPLOYMENT LAW UPDATE

SUPERIOR COURT AFFIRMS UIAB DECISION TO REFUSE TO HEAR UNTIMELY APPEAL

The Superior Court maintained its “extremely differential standard” of review of Unemployment Insurance Appeals Board (“UIAB”) decisions by affirming the UIAB’s decision to decline Claimant’s appeal because it was submitted after the deadline.

Claimant, an employee of Enterprise Leasing Company, was found by the Appeals Referee to have been terminated for just cause for insubordination and for being “recklessly indifferent to the consequences [of his behavior] to his employment.”

Claimant’s appeal of the Appeals Referee’s decision was submitted to the UIAB in a letter that was postmarked on November 10, 2014, surpassing the appeal deadline of October 27, 2014. The UIAB declined Claimant’s appeal, after which Claimant filed an appeal to the Superior Court, citing that his delay in response to the UIAB was due to being hospitalized for knee surgery.

The Court maintained that its review of UIAB appeals are limited to the criteria that UIAB decisions are “free from legal error and supported by evidence on the record.” Additionally, the Court reviewed other matters enumerating that untimely appeals could be accepted due to errors made by the Department of Labor. The Court also affirmed that “Delaware courts have routinely declined to find that untimely appeals due to illness must be heard.”

For the lack of any defect by the Department of Labor and due to the aforementioned illness precedent, the Superior Court found that the UIAB “did not abuse its discretion in declining to hear [Claimant’s] appeal.”

Please contact one of our Employment Law attorneys for additional discussion.

Honaker v. Enterprise Leasing Co. and Unemployment Insurance Appeals Board, C.A. No.: S14A-12-003 MJB (August 19, 2015)

ANNOUNCEMENTS

TOPOR PASSES DELAWARE BAR

Heckler & Frabizzio law clerk Amanda Topor has passed the Delaware Bar Exam and will be sworn-in as a Delaware attorney in December 2015.

We congratulate Amanda on her achievement, and we look forward to her continued success.

CYBERSECURITY TRAINING

On August 25, 2015, the attorneys and support staff of Heckler & Frabizzio were trained in the best practices of cybersecurity awareness and the latest tips in cyber threat prevention.

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.”

This program 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.