Claimant filed a Petition alleging he injured his neck and right shoulder at work on January 11, 2021. Employer contested Claimant’s Petition arguing his alleged injuries were the result of long-term degenerative processes and unrelated to the work accident. Employer’s medical expert, Dr. Steven Grossinger, opined that Claimant’s medical history was relevant for prior long-standing symptomatic and unresolved neck problems. Following a Hearing before the Board, Claimant’s Petition was denied.

The Board noted they found Claimant “implausible” because he failed to disclose substantial prior treatment to areas of his body he claims to have injured for the first time on January 11, 2021. The Board noted the Claimant failed to disclose to his treating physicians that he had prior injuries and repeated treatments over the course of a decade to body parts he claimed to have injured for the first time in January 2021. The Board also found Claimant incredible when he reported “ten out of ten crippling pain,” yet delayed seeking treatment for ten days. The Board also found that Claimant’s complaints of headaches and problems with his sinuses were likely increased due to his cocaine and heroine use.

The Board ultimately denied Claimant’s Petition stating they found him to be “suspect.” The Board noted Claimant’s lack of candor and delayed treatment did not credibly support that an accident and a resulting injury occurred in the manner Claimant alleged.

Following the Board Decision, Claimant filed an appeal in the Superior Court of Delaware. Claimant’s basis for appeal was the Board erred as a matter of law in denying his Petition and the Board Decision was not supported by substantial evidence.

Claimant took an interesting position conceding while he was not candid regarding his prior medical history, it was not relevant because his prior treatment was largely related to body parts that are unrelated to those at issue in this case.

The Superior Court issued its decision March 7, 2022. The Court noted in its decision that when deciding and appeal from the Industrial Accident Board, the Court must defer to the Board’s expertise and does not weigh evidence, determine questions of credibility, or make findings of fact. It is the exclusive function of the Board to evaluate the credibility of witnsseses before it.

The Court stated the Board had sufficent evidence to conclude that Claimant failed to meet his burden of proof that his neck and right shoulder injury were casually related to the January 11, 2021 work incident. The Court further stated that Claimant’s explanantion of the alleged accident was contradicted by eyewitnesses, his claim of injury was internally inconsistent and contradicted by prior medical history, his expert and treating physicians relied significantly on the inaccurate and unrelaiable information that he provided, and the opinion of the Employer’s expert was based on objective findings that contradicted Appellant’s subjective claims.

The Court affirmed the Board decision finding it was free from legal error and supported by substantial evidence.

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

Allan Sheingold v. C & S Enterprise, Inc., N21A-08-004, (Mar. 07, 2022).v

LITIGATION LAW UPDATE

We Didn’t Know We Didn’t Know, but Now We Do . . . The Statute of Limitations on PIP Property Damage is Three Years, Not Two

The Delaware Superior Court clarified an oft assumed, but not previously litigated, statute of limitations for property damage PIP subrogation, thus confirming that the three-year statute of limitations for personal injury PIP subrogation also applied to property damage PIP subrogation claims.

The case arose following a motor vehicle accident resulting in both personal injury and property damage. The damage to each driver was initially paid under each’s respective PIP policy. More than two years following the accident, Garrison brought a subrogation action against ICO. The Arbitration Panel found ICO’s insured 100% liable and awarded Garrison reimbursement of both personal injury and property damage benefits paid. ICO then filed this appeal renewing its argument that the property damage claim is not statutory, but is rather a common law claim, and should be governed by a two-year limitations period.

The Court discussed Delaware’s various statutes of limitations and reconciled 10 Del. C. § 8107’s two-year statute of limitations for “personal property” damage claims with 10 Del. C. §8106’s three-year statute of limitations for claims “based on a statute.” The Court considered that a property damage PIP subrogation claim could be both a claim for “personal property” damage and a claim “based on a statute.” However, the Court went on to reason that prior Delaware cases had ruled that Delaware’s amended PIP statute (located at 10 Del. C. § 2118) provides an exclusive statutory remedy for PIP related causes of action, thus transforming “common law subrogation claims and rights into statutory subrogation claims and rights.” See Harper v. State Farm Mut. Auto. Ins. Co., 703 A.2d 136 (Del. 1997).

Because Garrison’s property damage claim was based on a defined statutory PIP benefit, the Arbitration Panel had correctly applied the three-year statute of limitations.

EMPLOYMENT LAW

Plaintiff’s Appeal Denied – Plaintiff Missed Appeal Deadline by One Day

Plaintiff began her employment with Defendant in 2008. In 2020, Plaintiff resigned from her position without providing a specific reason for her resignation. A few weeks later, the Plaintiff filed for unemployment benefits. The Claims Deputy denied her claim, finding that the Plaintiff did not demonstrate “just cause” for the resignation. The Plaintiff appealed the decision to the Appeals Referee, but failed to appear for the hearing, leading the Referee to dismiss her appeal.  The Plaintiff appealed arguing that she did not receive timely notice of the date and time of the Referee hearing and she was granted a second hearing. During the hearing, the Plaintiff testified that she resigned from her position because she was primarily responsible for raising her grandchildren and had no assistance, making her work schedule impractical. However, the Plaintiff never requested a change in her work schedule or an accommodation from the Defendant. Therefore, the Referee affirmed the Claims Deputy decision, and the Plaintiff filed an untimely appeal to the Board. The final day to appeal was May 13 and the Plaintiff filed her appeal on May 14. The Board concluded that the Plaintiff’s appeal was untimely, and the Plaintiff failed to present any evidence of severe circumstances which impeded her ability to timely appeal the decision, leading to the Plaintiff appealing her case to the Superior Court.

The Court weighs the Board’s decision for “substantial evidence”, meaning “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” The Court does not weigh credibility. Pursuant to 19 Del. C. §3318(c), a Board’s decision is “deemed to be final unless within 10 days after the date of notification or mailing of such decision further appeal is initiated.”

In this case, the Plaintiff filed her appeal one day after the deadline. The Court found that the appeal to the Board was untimely. However, the Board can accept an untimely appeal if there was an administrative error or if the Board finds that the circumstances show the interests of justice require action by the Board. Since the Plaintiff did not identify any impediment to explain why the appeal was not timely filed, the Court concluded that the Appeals Referee’s decision is final and binding. Therefore, the Plaintiff’s appeal was denied.

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

Young v. Christiana Care, 2022 WL 1468746, at *3 (Del. Super. May 10, 2022)