Claimant was involved in an 8/30/18 work related motor vehicle accident while working as a police officer. The neck and low back were accepted by Employer. She underwent a compensable two-level cervical fusion surgery on 8/7/19.

On 9/15/21, Claimant filed a Petition seeking 26% permanent impairment to the cervical spine and 10% permanent impairment to the lumbar spine, based upon Dr. Rodgers’ opinion. Dr. Rodgers rated permanency under the 5^th Edition of the AMA Guidelines. Employer contested the ratings based upon the opinion of Dr. Piccioni, who found there was 9% permanency to the cervical spine and 3% permanency to the lumbar spine. Dr. Piccioni rated permanency under the 6^th Edition of the AMA Guidelines.

After trial, the Board issued a Decision dated 7/7/22 finding in favor of Employer, and awarding Dr. Piccioni’s ratings. The Board noted that Claimant’s cervical fusion was successful. The surgery improved her pain and function. The treating surgeon released Claimant to work without any restrictions for the neck or back thereafter. Post-surgery imaging showed no nerve root compromise. Claimant declined offered lumbar injections. Claimant did not seek a second opinion for the neck or back. The Board also accepted the opinion of Dr. Piccioni that the 6^th Edition focuses more on objective findings and function, whereas the 5^th Edition relies more on subjective complaints.

Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.

Mobley v. City of Wilmington, IAB Hrg. No. 1476680 (July 7, 2022).

LITIGATION LAW UPDATE

Bad Faith

A doctor who was covered under The Doctor Company (“TDC”) insurance policy was sued by his patient. TDC and the doctor’s defense Counsel completed three internal evaluations showing the chances of an excess verdict, but unaware of this information, the doctor did not accept the patient’s offer to settle for policy limits. The case proceeded to trial and Plaintiff was awarded damages in excess of the policy limits, leaving the doctor personally liable for the excess amount. Following trial, the patient brought this action as the doctor’s assignee, seeking both compensatory and punitive damages for breach of duty and the implied covenant of good faith. In return, TDC filed a Motion for Summary Judgment.

The issue for the Court to determine was whether the TDC acted in bad faith by not providing the doctor with the three evaluations showing the chances of an excess verdict. The Court also considered whether there are questions of material fact regarding the likelihood of an excess verdict.

The Court denied TDC’s Motion for summary judgment and held that TDC acted in bad faith by not informing the doctor of its three internal evaluations that showed the doctor’s high risk of being exposed to an excess verdict. Additionally, the Court determined that this was an issue of material fact, which is not appropriate for summary judgment.

Patricia A. McLeod v. The Doctors Company, C.A. No. S19C-12-003 RHR (Del. Super. June 30, 2022).

EMPLOYMENT LAW

Unemployment Benefits Denied to Employee Who was Unable to Work

Plaintiff filed for unemployment benefits on May 30, 2020, because she was unable to work. During the referee hearing, the Plaintiff testified that her doctor wanted her to be out of work due to pulmonary sarcoidosis, a condition that made her high risk for contracting COVID.  The Plaintiff produced documents in support of her claim, one document in which her doctor advised her not to quit her job, but she should avoid working in close proximity with unvaccinated individuals. Another document stated that the Plaintiff was unable to perform job functions due to her condition. During the hearing, the Plaintiff testified that she had not received a return-to-work form. The referee found that the Plaintiff was not entitled to benefits, and that decision was affirmed by the Board.

The Plaintiff was paid benefits for several weeks until the Department of Labor found she was ineligible to receive benefits.  The Department is now seeking repayment of those amounts paid to the Plaintiff.

On appeal, the Court reviews the Board’s decision for substantial evidence and determines whether it is free from legal error.  The Plaintiff bears the burden of establishing entitlement to receive unemployment benefits. To be eligible for benefits, the Plaintiff must be “able to work and available for work.” Being cleared to work with restrictions an employer cannot accommodate does not satisfy the requirements to be able and available for work.

The Plaintiff argued that she was entitled to benefits because she was at high risk for COVID and should stay home, but she was unable to work from home due to not having the internet and her employer would not allow her to work from home.  Therefore, the Court affirmed the Board’s decision because the Board’s decision relied on the Plaintiff not being able and available to work.

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

Brummell v. Unempl. Ins. App. Bd., (Del. Super. Aug. 19, 2022), unreported.