September 2016

Show Me More Money:
Claimant Awarded Medical Expert Fees Despite 30 Day Offer Made In Excess Of Award
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.

 New Car Smell, New Policy As Well: The Applicability of the Amended Uninsured and Underinsured Vehicle (UIM) Statute
The UIM statute, codified in 18 Del. C. § 3902, was enacted in 1953. Originally, coverage was trigger only if the claimant’s UIM coverage and damages exceeded the tortfeasor’s bodily injury coverage. However, on July 3, 2013, the statute was amended to trigger if the claimant’s damages exceed the tortfeasor’s bodily injury coverage – irrespective of whether the claimant’s policy was equal or less than the tortfeasors. The amendment applies to all insurance policies ‘issued’ or ‘renewed’ after January 3, 2014.
The litigation arose following an April 30, 2014 motor vehicle accident. Plaintiff’s UIM policy was equal to the Defendant’s liability limit ($15,000). The Plaintiff obtained the UIM policy on July 23, 2011. On March 15, 2014, Plaintiff changed the automobile listed in the policy; thereafter, the Insurer sent an amended declaration page and a new insurance card. In denying Insurers Motion for Summary Judgment, the court reiterated that a change in vehicles included in the coverage of a policy is a material change. As such, it then qualifies as a ‘renewed’ policy for the purposes of the amended UIM statute.
For more information on this matter or other legal questions, feel free to contact Michael W. Mitchell or any attorney in our Liability Department.
Williams v. Progressive Direct Ins. Co., C.A. No. N16C-01-107 CEB (Super. Ct. Aug. 16, 2016).

Wage War-Trade Council Schooled By Academia:
Prevailing Wage Act Does Not Apply to the University of Delaware
In the world of Government, construction projects, the procurement of goods and the like is not done without first receiving “bids” from those who may be interested in fulfilling the tasks specified. In the context of Government procurement “bids”, Delaware has enacted the Prevailing Wage Act, 29 Del. C. §6960, which sets forth the “prevailing wage” that contactors must pay laborers while completing contracts for the State or any of its subdivisions or agencies. This prevailing wage is specified by the Department of Labor and all bids must include this wage when estimating the cost of labor for any given project. The Delaware Prevailing Wage, applies to “public works project[s] in excess of $500,000 for new construction or $45,000 for alteration, repair, renovation, rehabilitation, demolition, or reconstruction.”
The Delaware Building & Construction Trades Council (“Trades Council”) brought action against the University of Delaware (“University”) seeking a declaratory judgment that the University should be subject to the Prevailing Wage Act (“Act”) since they qualify as a “subdivision or agency” of the State. In Denying Trades Council’s request for Declaratory Judgment, the Court first looks to the plain, unambiguous meaning of “subdivision of the State”. The definition applied is “a body of people less in number than the total number in the state, politically organized, and occupying a part of the territorial area of the state – hence a city, borough or town.” While the Court finds this definition supported by precedent, it continues its analysis by looking to legislative history, and finds that the University is specifically excluded from the scope of the Act, not only as to the definition of “agency” but also in other subsections, such as 29 Del. C. §7419.
In relying on both the plain, unambiguous meaning of “subdivision of the State” and the legislative history of the Act, and noting that the University acts in a private capacity when contracting for the construction of its buildings, the Court finds that to subject the University “to the requirements of the Prevailing Wage Law would be absurd.”
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
Delaware Building & Construction Trades Council, AFL-CIO v. University of Delaware, et al., C.A. No. S14C-06-020 RFS (Del. Super. Jul. 1, 2016).

Congratulations to DSBA President
Congratulations to former H&F attorney Miranda “Mindy” D. Clifton in being elected president of the Delaware State Bar Association. In Mindy’s inaugural article published in “The Journal” entitled Standing on the Shoulders of Giants Mindy indicated: “I am so grateful for the guidance and examples given to me by many of the attorneys at Heckler & Frabizzio, who, in the midst of a very fast-pace environment, were able to portray professionalism and congeniality while I was in law school and beyond”. We wish Mindy well in her new position.
Miranda D. Clifton, Standing on the Shoulders of Giants, September 2016, Volume 40  
Welcome to the Team
John attended Lafayette College, earning a Bachelor of Arts in Government and Law along with a minor in English. He received his law degree from Delaware Law School in Wilmington, Delaware and graduated cum laude. While in law school, John served as an Articles Editor for the Delaware Journal of Corporate Law and was a judicial extern for Justice Henry duPont Ridgely and Justice Karen L. Valihura. Prior to joining the firm, John clerked in the Delaware Family Court for Judge Joelle Hitch and Judge Jennifer Ranji. He is admitted to practice of law in Delaware and Pennsylvania.
A native of southeastern Pennsylvania, John enjoys playing golf, spending time outdoors, and Philadelphia sports.
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