The Claimant filed a Petition to Determine Additional Compensation Due seeking 29% permanent impairment to her lumbar spine, based on an L3-4 microdiscectomy and a left sacroiliac joint fusion. The employer argued claimant had only an 11% permanent impairment to the lumbar spine, noting the SI joint was not considered part of the lumbar spine and the SI joint surgery did not constitute a true fusion under the meanings of the AMA Guides to the Evaluation of Permanent Impairment.

Notably, there is no section of the AMA 5^th or 6^th Edition (the “Guides”) that addresses permanent impairment specifically for an SI joint fusion surgery. Therefore, the experts in this case created their own analyses. The Claimant’s expert, Dr. Rodgers, relied upon the 5^th Edition of the Guides. He rated the sacrum as a fusion of the lumbar spine, placing Claimant in DRE Category IV, including consideration of range of motion deficits, with no residual documented radiculopathy, resulting in a 29% permanent impairment of the lumbar spine. The Employer’s expert, Dr. Townsend, focused his opinion under the 6^th Edition. Dr. Townsend noted that the claimant would have a 9% lumbar spine rating and a 3% sacrum rating. He opined there is a grade modifier for the type of lumbar spine surgery, giving the claimant 11% permanent impairment to the lumbar spine. The Board ultimately agreed with the opinion of Dr. Townsend.

The Board found the claimant’s medical notes post-surgery showed she was improving significantly, had reduced pain scores, resolution of radiculopathy, and no physical findings showing an ongoing radicular problem. The Board also noted that the claimant’s physical examination findings at Dr. Townsend’s examination were similar to her post-surgical examination findings from the other medical providers, showing no evidence of ongoing nerve issues. The Board accepted Dr. Townsend’s opinion that DRE Category IV required some alteration of the motion segment integrity of the lumbar spine so the claimant would need to have undergone a lumbar fusion, which she did not, and saying there is any loss of motion segment is incorrect since there was no fusion within the lumbosacral spine. The Board also confirmed that her SI joint fusion was not considered a lumbar fusion. Therefore, Dr. Townsend’s 11% permanent impairment rating was appropriate when focusing purely on the Claimant’s functional limitations.

Should you have any questions regarding this decision, please contact Nick Bittner or any other attorney in our Workers’ Compensation Department.

SUZANNE NOCCHI-DILL v. STATE OF DELAWARE, IAB Hearing No. 1478813 (July 13, 2023).

EMPLOYMENT LAW UPDATE

Plaintiff Fails to File Timely Appeal

On February 5, 2023, the Plaintiff filed a claim for unemployment benefits with the Department of Labor. The Claims Deputy found the Plaintiff ineligible for benefits because she was discharged for “just cause” as defined under 19 Del. C. §3314(2). The Claims Deputy mailed the Notice of the Determination to the Plaintiff on February 22, 2023, giving her ten days to appeal the decision.  The Plaintiff filed the appeal on the eleventh day.

The Plaintiff’s claim was heard before the Appeals Referee on March 28, 2023, to determine whether the Plaintiff filed a timely appeal. The Referee affirmed the decision of the Claims Deputy and further found that the Plaintiff’s request for an appeal was not timely. The Plaintiff appealed the Referee’s decision to the Board.

The Board held a hearing, upholding the Referee’s decision finding that the Referee committed no error. The Plaintiff then appealed to the Superior Court.

In reviewing the Board’s decision, the Court determines whether the Board had substantial evidence to support its findings. Pursuant to 19 Del. C. §3318(b), which states that a claimant has ten days from the date of mailing to appeal a decision of a Claims Deputy.

The Plaintiff admits her appeal was filed late but argues that she did not have a key to the mailbox, so she did not receive her mail until March 7, which was eleven days after the Claim Deputy’s decision. Under Delaware law, a notice that is “correctly addressed, stamped, and mailed is presumed to have been received by the party to whom it was addressed.”

If the Department of Labor had committed any error or wrongdoing that would have prevented the Plaintiff from filing a timely appeal, the Board could “reverse any decision of an appeal tribunal. “ However, Plaintiff presented no evidence of wrongdoing on the part of the Department of Labor. 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.

Butler v. Unemployment Insurance Appeal Board, 2023 WL 6460274(Del.Super., 2023)

LITIGATION LAW UPDATE

Don’t Bite Off More than You Can Chew – Plaintiffs’ Claims Against DHSS Office of Animal Welfare Dismissed Based on Sovereign Immunity

The Superior Court grants the Delaware Department of Health and Social Services (“DHSS”) Motion to Dismiss and, in doing so, provides an updated analysis of Delaware’s Doctrine of Sovereign Immunity. This case arises out of a dog bite. Plaintiffs sued the dog’s owner, and also DHSS’ Office of Animal Welfare for its alleged failure to enforce the applicable Dangerous and Potentially Dangerous Dogs law found at 16 Del. C. §3071F and the “Victim’s Bill of Rights” found at 11 Del. C. §§9401-9420. DHSS motioned for dismissal.

The Court accepted that the State may not be sued without its consent. In order to overcome sovereign immunity: “(1) the State must waive immunity; and (2) the State Tort Claims Act must not otherwise bar the action.” Both waiver and non-barring by the State Tort Claims Act are necessary. A waiver by the State’s General Assembly may be accomplished: “(1) by procuring insurance coverage under 18 Del. C. §6511 for claims cited in the complaint, or (2) by statute which expressly waives immunity.”

In this dog bite case, the Court accepted an affidavit from the State’s Insurance Coverage Administrator to establish that the State had not procured insurance coverage for the risk implicated by the plaintiffs’ claims. Similarly, no statute waived immunity. Thus, the State had not waived sovereign immunity for the claims alleged, and dismissal was granted as to DHSS.

Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our liability law department.

Lee Lifeng Hsu & Jane Yuchen Hsu v. Jaclyn B. Wooters & Department of Health and Social Services (DHSS), C.A. No. N23C-05-052 FJJ (Del. Super. Oct. 3, 2023)