Claimant was involved in 5/3/23 work accident, while working as a school nutrition specialist, when a can of food fell from a shelf striking her in the head. Claimant returned to work regular duty in early August 2023. She continued treating and was discharged from care by Dr. Sampathkumar on 10/23/23. In late February 2024, she returned to Dr. Sampathkumar’s office and resumed treatment. He rated 17% permanency to the head. Claimant filed a Petition seeking payment of her medical bills from February 2024 and the permanency rating. Employer argued that the return to treatment and any permanency were unrelated to the work accident, based upon the opinions of neurologist Dr. Sommers, and neuropsychologist Dr. Langan.

The Board issued a Decision dated 5/1/25 denying claimant’s Petition. Claimant was asymptomatic when she was released from treatment in October 2023. At that time, she had been back to work for several weeks, during which time she continued to treat. She worked in a noisy environment with substantial potential stimuli. When she returned to treatment in February 2024, the only similar symptoms to what she complained of before were alleged word finding difficulties, focusing issues, and anxiety. Drs. Sommers and Langan agreed these symptoms could have presented for a number of non-brain related reasons. Concussion symptoms do not wax and wane. If claimant was asymptomatic in October 2023 that means she recovered and the later symptoms were not related. Even Dr. Sampathkumar agreed concussion symptoms do not wax and wane. He instead alleged that claimant returned to work in October 2023 and return to work was the stimuli that brought on her symptoms. The problem with that was claimant didn’t return in October. She returned weeks before in August, so the stimuli had been present for weeks when claimant was declared asymptomatic. More likely than not, claimant’s February 2024 symptoms were due to unrelated psychological factors. In 2024, she complained of depression, which was never a symptom in the first course of treatment. Depression can cause all the complaints claimant was making in February 2024. The Board accepted the opinions of Drs. Sommers and Langan that claimant’s clinical course was quite consistent with the natural history of concussion. With therapy and the passage of time, her symptoms were documented to have resolved completely, which is very typical of the natural course of post concussive syndrome.

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

Marsha Karnes v. State, IAB Hrg. No. 1535990 (May 1, 2025).

EMPLOYMENT LAW UPDATE

Delaware Superior Court Upholds Dismissal of Late Unemployment Appeal, Says Claim Would Fail on Merits Anyway

Claimant applied for Delaware Unemployment Insurance Benefits after separating from his job due to his health condition.

The Delaware Department of Labor issued a Notice of Determination that disqualified Claimant because he “was not able to work and available for work.”

The Department of Labor issued the Notice of Determination on April 2, 2024, and the Notice included an April 17, 2024 appeal deadline.

On April 26, 2024, Claimant’s wife, acting with power of attorney, issued a hand-written appeal to the Department of Labor.

On June 9, 2024, a Department of Labor Appeals Referee held a hearing on the sole issue of the untimely appeal. Among Claimant’s arguments were issues concerning mail being held by the post office, the difficulty in receiving mail, and the alleged non-receipt of the Department of Labor’s April 2, 2024 Notice of Determination.

On July 9, 2024, the Appeals Referee issued a Decision that deemed Claimant’s appeal as untimely as there was no administrative error that could be attributed to the Department of Labor.

Claimant appealed to the Unemployment Insurance Appeal Board (“UIAB”), and the Board affirmed the Appeals Referee’s Decision.

On September 17, 2024, Claimant appealed to the Delaware Superior Court and the issues in the case were briefed.

The Superior Court reviews UIAB decisions for whether the decisions are based on substantial evidence and free of legal error.

The Court held that the UIAB correctly applied the statute concerning the timeliness of an appeal of a Claim Deputy’s Notice of Determination, specifically that Claimant failed to comply with the statute.

Moreover, the Court held that the UIAB did not abuse its discretion, as there were no “‘severe circumstances’” that would warrant the Board’s hearing of an untimely appeal.

Ultimately, the Court conducted an interests of justice analysis and concluded that 19 Del. C. § 3114(1) bars Claimant’s claim because he was not “able to work and available for work” due to his medical condition.

Therefore, even if Claimant’s appeal of the Notice of Determination was timely, the statute would bar his claim under the circumstances of his health condition leading to the separation from his employment.

If you have any questions concerning this case or any Delaware Unemployment Insurance matter, please contact an attorney in our liability department.

Ronald L. Corbin, Sr. v. Unemployment Insurance Appeals Board C.A. No. K24A-09-003 RLG (Del. Super. March 12, 2025)

LITIGATION LAW UPDATE

Perfect Game Hits into a Double Play: Delaware Court Analyzed and Ultimately Dismissed Perfect Game’s Claims for Breach of Contract and Fraud

The founder of Perfect Game, an organizer of premier amateur baseball events, separately established a charitable foundation intended to “give back to Perfect Game’s community.” Perfect Game and the Foundation entered into an agreement whereby Perfect Game would front (but ultimately be repaid) some of the Foundation’s costs associated with various charitable events. Following entry of this agreement, the ownership of Perfect Game changed, but the founders’ family remained in place with the Foundation. Perfect Game then sued the Foundation for breach of contract (for failure to repay the debts), and fraud (alleging misappropriation and unprofessional handling of the charitable donations).

As to the fraud allegations, Perfect Game alleged that the Foundation represented it would “operate in a reasonably diligent manner,” and use the funds raised “for charitable purposes.” Perfect Game alleges that it relied on these representations when agreeing to cover the costs. In support, Perfect Game alleges that the Foundation raised $110,000 for Make-A-Wish but donated only $60,000, and that the Foundation hosted other events in an unsafe and unprofessional manner while utilizing the “Perfect Game” name, resulting in Perfect Game losing a contract with the Arizona Diamondbacks.

The breach of contract claim was quickly dismissed as moot, finding that the debt had been repaid plus interest, and any claim for lost profits or other consequential damages was not covered by the contract in issue. However, the Court spent time analyzing the fraud claim, noting that Delaware law requires fraud to be pled with particularity. To avoid double recovery, Delaware’s anti-bootstrapping rule bars a fraud claim that “merely adds the term fraudulently induced to a complaint or alleges that the defendant never intended to comply with the agreement at issue” and “must plead damages separate and apart from the alleged damages for breach of contract.” The Court found the debt and interest damages were already covered by breach of contract. The “extra-contractual damages” (i.e. loss of the Diamondbacks contract), was insufficient to prove fraud because no facts were asserted alleging that loss of the Diamondbacks contract “flowed from inducement” to enter the contract. The Foundations motions to dismiss were granted as to both breach of contract and fraud.

Perfect Game Incorporated v. Rise 2 Greatness Foundation, C.A. No. N24C-05-052 KMM, June 2, 2025