Pursuant to Section 19 Del. C. § 2322(e) of the Delaware Worker’s Compensation Act, a claimant is entitled to receive medical witness costs from the employer when the claimant receives an “award” and benefits from the filing of a petition by establishing a right to compensation. So what happens when the employer offers a permanency rating for 30 Day Rule purposes that is greater than is awarded by the Board at Hearing? The Superior Court addressed this issue in English v. Reed Trucking. In English the claimant was injured during the course and scope of employment, and the injury was deemed compensable by the employer. The claimant was evaluated for permanency, and the employer offered pre-litigation and before a petition was filed a five percent impairment, though the claimant’s medical expert determined an impairment of thirteen percent. The claimant filed a permanency petition, and the employer subsequently presented a 30 Day offer for settlement of eight percent, which the claimant rejected. After a Hearing, the Board granted the petition, but found the claimant suffered only a five percent impairment, and also awarded the claimant medical witness costs. The employer appealed the award of medical witness costs, arguing that because the Board proceedings did not result in a “favorable change” in the claimant’s position, in light of pre-litigation and 30 Day Rule offers, the claimant received no “award” in excess of prior offers, and thus was not entitled to medical witness costs.

The court found that the claimant’s award of permanency constitutes an “award” under 19 Del. C. § 2322(e) because the claimant would not have received the permanency award from the Board had the claimant not filed a permanency petition based on the opinion of the claimant’s medical expert. A claimant can recover medical witness fees only where the Board issues an award, defined as “any decision or determination rendered by arbitrators or commissioners upon a controversy submitted to them” as a result of the entire Board proceeding process. The court explained that although an employee cannot receive an attorneys’ fee award if the employer presents an offer for settlement that is equal to or greater than that which is ultimately awarded by the Board, the claimant still may tax medical witness costs to the employer. The Court reasoned the Board proceeding “served a purpose,” namely the claimant’s attempt to obtain additional compensation beyond that which was previously offered by employer, and as the claimant received an “award” under § 2322(e), the claimant was therefore entitled to receive medical witness costs from the employer, despite prior offers made by the employer in excess of the amount ultimately awarded by the Board. English v. Reed Trucking, 2016 Del. Super. LEXIS 330 (July 6, 2016).

For information on this matter or other Worker’s Compensation law questions, please contact any attorney in our Worker’s Compensation Department.