October 2020

End of the Line
Benefits End with the Injury
Claimant was involved in a compensable work accident with multiple alleged injuries. At a prior Hearing in 2017, the claimant alleged ongoing injury to the head and neck, while seeking payment of surgery and other benefits related to same. The Board agreed with the Employer’s experts and found that any injuries to the head and neck had long since resolved. While the surgeries at issue were denied on technical grounds, they would still not be compensable due to the finding of resolution.
Claimant then filed Petitions seeking permanent impairment to the head and neck, as well as disfigurement to the neck related to one of the surgeries that had previously been denied. The Employer filed a Motion to Dismiss, citing to Christiana Care Health Services v. Davis, 127 A.3d 391 (Del. 2015), which affirmed a dismissal on similar grounds, as entitlement to benefits ends once a work-related injury has resolved. At the Legal Hearing, claimant argued that the recent Delaware Supreme Court case of Washington v. Delaware Transit Corp., 226 A.3d 202 (Del. 2020), stood for the proposition that the Board cannot dismiss permanency/disfigurement when those issues were not raised at the prior Hearing.
The Board rejected the claimant’s arguments and found in favor of the Employer. The Board distinguished Washington as involving different circumstances; specifically, Washington involved a finding in a Termination Petition that the claimant could return to work as the basis for dismissing a subsequent permanent impairment claim. By way of contrast, the prior Petition in this matter involved questions of whether there were ongoing, compensable injuries to the head and neck. As the Board found there were not, the claimant lost all entitlement to subsequent benefits for those body parts. According to the Board, “Once the Board finds that a compensable injury resulting from a work accident either does not exist or has subsequently resolved, there simply can be no further entitlement to benefits with respect to that claimed injury.” Therefore, claimant’s Petitions were dismissed.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
Rebecca Clark v. State of Delaware, IAB No. 1393189, July 30, 2020.
Defendant won. It’s Motion for Summary Judgment was granted after the Court decided the Plaintiff’s expert failed to meet the Daubert standard. Essentially, Plaintiff was unable to establish the causal connection between certain cancers and diesel exhaust from the railroad to the satisfaction of the Court. Upon obtaining the Daubert ruling, Defendant filed a Motion for Costs seeking $3013.74.
In deciding whether the Defendant was entitled to costs, the Delaware Superior Court first looked to the Delaware Rules of Civil Procedure which state that “costs shall be allowed as of course to the prevailing party.” Similar cost shifting language has been interpreted to require the party given a final judgment to ‘generally’ be awarded costs of suit. ‘Generally’ means ‘for the most part,’ or ‘usually,’ but not always. Determining when, or if, costs should be awarded is a matter of judicial desertion.
In opposition of the motion, the Plaintiff cited numerous cases in which a jury returned a verdict and the court subsequently declined to award costs. These cases cite the often-quoted language that “sometimes it is important to win with grace.”
The Court was admittedly burdened with deciding whether or not Defendant was acting with grace. Indeed, grace is difficult to define. The Defendant undeniably prevailed in the litigation. Nevertheless, it was not by a jury decision and instead was the result of an adverse Daubert ruling. In the end, the Court found that the factual circumstances did not warrant a deviation from the general rule that the prevailing party should be awarded costs. The Court reasoned that the Plaintiff knew that one of the possible results was an adverse ruling and an Order of costs against him. The Defendant’s Motion for Costs was granted.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Wilant v. BNSF Ry., 2020 Del. Super. LEXIS 2778 (Sep. 11, 2020).
Unemployment Board’s Decision Affirmed, Plaintiff Denied Unemployment Benefits
Plaintiff filed for unemployment benefits following his termination by his employer on June 3, 2019. The employer argued that Plaintiff’s termination was based on just cause because Plaintiff avoided calls while working in the call center. A Claims Deputy found that the Plaintiff had been terminated for just cause and therefore disqualified from receiving unemployment benefits. Plaintiff appealed to the Appeals Referee who revered the Claims Deputy’s decision. The employer filed an appeal to the Unemployment Insurance Appeals Board who found that the employer presented sufficient evidence to meets it burden that the Plaintiff had been terminated for just cause. The Board referenced the employer’s policy, which prohibits avoiding calls and states that such conduct could result in termination. The Board also noted that the Plaintiff was aware of this policy.
Plaintiff appealed the Board’s decision to the Superior Court. Plaintiff argued, among other things, that the employer allegedly made false statements during the Board hearing, and that he never avoided calls.
On appeal, the Court’s review of the Board’s factual findings is limited to determining whether the Board’s decision was supported by substantial evidence, which means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The Court does not evaluate the credibility of witnesses or make its own factual findings. Therefore, the Court will affirm the Board’s decision unless the Board has committed an error or law.
As to Plaintiff’s argument that the employer made false statements during the Board hearing, the Court concluded that it does not engage in independent fact-finding or witness credibility determinations in its capacity as an appeals court for decisions of the Board.
As to Plaintiff’s argument that he did not engage in avoiding calls, the Court cited the employer’s conduct memo which indicated Plaintiff had been “observed by his manager resetting his phone in the phone queue in order to avoid taking calls” and that Plaintiff was served a final warning that further conduct could result in termination.
Therefore, the Court affirmed the Board’s decision concluding that the Board’s decision was supported by substantial evidence.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Neal v. Unemployment Insurance Appeal Board, 2020 WL 5539802, at *1 (Del.Super., 2020)
Randy Holland Workers’ Compensation Inn of Court
Gregory Skolnik, partner was elected Treasurer for the Randy Holland Workers’ Compensation Inn of Court.  The Holland Inn is comprised of members of the Judiciary, members of the Industrial Accident Board and its Hearing Officers and a high percentage of the active membership of the Workers’ Compensation Section of the Delaware State Bar Association. Membership in the Holland Inn affords the opportunity for a dynamic and informative exchange of ideas to enhance the practice of Workers’ Compensation law in the State of Delaware.
Adjuster Continued Education Credits
The State of Delaware requires resident and non resident licensed adjusters to complete the required 12 credits, including, 3 ethics credits every other year. The biennial license period begins on March 1st and ends the last day in February. If you need adjuster credits to satisfy the requirement by February 2021, please contact Page Chase, Firm Administrator.
Happily Ever After
Congratulations to Page Chase, Firm Administrator, who despite the pandemic married her best friend, Joel Chase. Page and Joel hosted a wedding reception on September 19th to celebrate with friends and family. Congratulations to the newlyweds!
2020 Isn’t all that Bad!
Sandra Glackin, secretary, has had an excited couple of months. She got a Yorkiepoo puppy and named him Chim Chim; her first grandson was born on August 4, 2020 and was named T.J. (a/k/a Tyler Christopher McBride, Jr.) and, she celebrated her mother’s 80th Birthday on September 15.
Childhood Milestone
Alison Chapman, paralegal, is super proud of her son Miles, 4-years-old, who learned to ride a bike on 9/1/20. After only a month, he is now speeding along with the rest of his family and has done several bike rides in and around our neighborhood, Cape May, and Cape Henlopen State Park. Great job, Miles!
Shiny Things
Congratulations to Sarah Melchert, law clerk, who recently moved from New Jersey to Wilmington. She is still unpacking but could not be more excited. She also purchased a new vehicle, a proud owner of a 2020 Subaru Forester.