Claimant was involved in compensable 1/18/94 work accident with injuries to the low back and right femur, and Employer accepted 6 surgeries combined to those body parts. On 12/05/23, Employer filed a Petition challenging the reasonableness, necessity, and causation of pain management treatment, including 150 MME daily narcotics prescriptions. Claimant filed a cross-Petition seeking payment of additional low back surgery recommended by Dr. Lingenfelter. A Hearing was held on 12/20/24. On 1/15/25, the Board issued a Decision denying the additional back surgery and ordering claimant to wean from her narcotic medications. The Board accepted the opinions of defense experts Drs. Rushton and Gelman, over that of claimant’s experts, Drs. Lingenfelter and Bakst.

As to the surgical issue, the Board noted Dr. Lingenfelter’s testimony that extending claimant’s fusion to include L5-S1 was hoped to permit her to ambulate better as well as be able to get up and down stairs, and his opinion that he anticipated 70-90% change of improvement with surgery. His indications for surgery were severe stenosis and radiculopathy. He was not concerned about comorbid conditions. However, his own partners, Drs. Rudin and Ginsberg, commented that additional surgery would not be helpful. Dr. Rudin even called claimant a “terrible candidate for surgical reconstruction”. Defense experts Drs. Rushton and Gelman did not feel that a pain generator was identified, and had significant concerns about multiple comorbid conditions including chronic opioid dependency, nicotine use, claimant’s weight, chronic pain status, and past surgical outcomes. The Board accepted this testimony and denied the surgery.

As to pain management, the Board pointed out that even Dr. Bakst conceded that 150 MME is considered a high risk dose, and some degree of weaning would be appropriate. Opioids become less effective over time, and can accentuate or accelerate pain. They can produce emotional or psychological pain. Dr. Gelman felt claimant had all the features of “opioid induced hyperalgesia”. If she responded to weaning, that would likely reduce her pain. Weaning would be safer than surgery. The Board agreed with this testimony and ordered claimant to find a physician or multidisciplinary inpatient or outpatient clinic to start to help her wean.

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

Tenaglia-Evans v. St. Francis Hospital, IAB Hrg. No. 1020433 (Jan 15, 2025).

EMPLOYMENT LAW UPDATE

Delaware Superior Court Affirms Board Decision Concerning Claimant’s Inability to Work

Starting in March 2023, Claimant was employed as a temporary laborer for Amazon Fulfillment Services. Within a couple of months of her employment Claimant was placed on medical leave.

On or about July 20, 2023, Claimant filed for Delaware Unemployment Insurance benefits and was disqualified from receipt of benefits because she had not produced a doctor’s certification indicating that she was able to work.

Claimant appealed the Claims Deputy determination and a hearing was scheduled before an Appeals Referee. Claimant did not appear to the hearing due the hearing notice being mailed to an incorrect address. Because of Claimant’s failure to appear, her appeal was dismissed but subject to an additional appeal right.

Claimant exercised that appeal right, albeit untimely, and requested that the Delaware Unemployment Insurance Appeals Board hear her case. The Board ruled that there was an administrative error that prevented Claimant’s attendance at the hearing before the Appeals Referee. As a result, the Board remanded the case back down to the Appeals Referee to complete the record.

The Appeals Referee, with the benefit of having Claimant’s testimony, decided that Claimant was disqualified from receipt of unemployment benefits because she was not released by a doctor to return to work.

Claimant appealed to the Board for a second time, and the Board affirmed the Appeals Referee’s decision stating that “‘Under 19 Del C. § 3314(8), [Allen] [sic] is disqualified from receiving benefits until she produces a doctor’s note saying she is released to work.’”

Claimant then appealed to the Superior Court of the State of Delaware, and during briefing, presented a medical record that was not produced to the Board indicating that she could work 2.5 hours per day.

The Superior Court, clarifying its role in reviewing Board decisions, stated that “the Court may not weigh evidence, decide questions of credibility or engage in fact-finding upon review of the Board’s decision.”

As such, The Superior Court affirmed the Board’s decision as it was based on substantial evidence, free from legal error, and without abuse of discretion.

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

Monica Allen v. Amazon Fulfillment Services, Inc. & Unemployment Insurance Appeals Board C.A. No. 24A-08-001 MHC (Del. Super. January 29, 2025)

LITIGATION LAW UPDATE

Pro Se Litigants Afforded Some, but Limited, Leeway

The Superior Court dismissed two cases recently involving pro se litigants who failed to follow procedure.

First, in Bolden-Loat v. Main Event Entertainment, Inc., et al, the Court dismissed a pro se plaintiff’s case when plaintiff failed to produce an expert supporting her negligence claim. Plaintiff had alleged a slip and fall accident at Main Event resulting in bodily injuries. The Court reviewed that plaintiff’s claim required presentation of medical expert testimony of a causal connection between the alleged negligence and plaintiff’s alleged injuries. Without an expert, plaintiff could not prove an essential element of her claim. Of interest, the Court reasoned that some leeway is often afforded to pro se litigants, but the rules are nonetheless the same and the Court “cannot sacrifice the orderly and efficient administration of justice to accommodate the unrepresented plaintiff.”

In McCann-Cross v Dover EMS and Kent County EMS, the Court reviewed various applicable statutes of limitations and found that pro se plaintiff had failed to file a timely complaint. In this case, plaintiff alleges that she arrived at the scene of her sister’s fatal car accident and that the EMS had been slow to respond to decedent’s injuries. The Court attempted to ascertain the exact claims being presented by plaintiff, allowing that “deference was due a pro se litigant” in finding that her emotional harm claim would best be interpreted as either intentional or negligent infliction of emotional distress. She similarly made claims for negligence, concealment and defamation. Regardless, the Court ultimately concluded that all her claims were filed outside of the applicable statutes of limitations and the case was dismissed.

While the Courts will give some leeway to pro se litigants, the rules of law must still be followed.

Bolden-Loat v. Main Event Entertainment, Inc., et al, C.A. no. N23C-08-083 SPL, Jan. 22, 2025

McCann-Cross v. Dover EMS and Kent County EMS, C.A. No., K24C-11-011 JJC, Feb. 10, 2025