Claimant filed two initial Petitions, seeking acknowledgement of: (1) 10/5/21 work accident with neck and back injuries; (2) 1/19/21 work accident with neck, back, and right knee injuries; and (3) payment of treatment with Dr. Sternberg for approximately two years after these events. Employer argued both injuries resolved or returned to pre-injury baseline by 3/1/22, in accordance with the opinion of Dr. Gelman.

The Board accepted Employer’s position. Claimant undoubtedly had a significant pre-existing condition, with abundant disc abnormalities in both the cervical and lumbar spines. She received lengthy maintenance care for several years from Dr. Sternberg’s office until 2018, when, by her own admission, she remained symptomatic but stopped going to visits because of personal issues unrelated to her symptoms. She then had the first work event in issue in October 2021. Despite her complaints, there were no radicular findings, and her physical examination was such that Dr. Sternberg saw no need for updated MRIs. The treatment was substantially the same as claimant received for years before 2018. Claimant testified to the Board that she limped for weeks, but Dr. Sternberg’s notes did not substantiate that. She then had the second event in January 2022. She was first seen for a scheduled visit for the 2021 injury, and Dr. Sternberg put off addressing the January 2022 event, commenting she would need another later visit for that. When claimant saw Dr. Sternberg in February for the January event, he noted additional complaints to the right knee, ankle and foot, but the medical care remained unchanged. Claimant never missed time from work. She quickly reported improvement and her pain levels were consistent with her 2017-18 and before complaints. Taking all this evidence together, the Board felt claimant sustained exacerbations of her prior conditions that resolved by 3/1/22. The treatment thereafter may have helped her baseline condition, but the work related exacerbations were over.

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

Eva Kiss v. State of Delaware, IAB #1516847 & 1520453 (Mar. 18, 2025)

EMPLOYMENT LAW UPDATE

Delaware Superior Court Affirms Unemployment Board’s Decision to Bar Untimely Appeal

While it may sound cliché, when engaged in the prosecution and defense of unemployment claims, timing (and participation) is everything.

In April 2022, Claimant filed for Delaware Unemployment Insurance Benefits and the Department of Labor (hereinafter “Department”) denied her claim due to information from the Employer that Claimant was terminated for just cause due to attendance issues.

The Department issued the disqualification decision to Claimant’s address of record and the disqualification paperwork identified an appeal deadline of May 26, 2022.

Claimant issued her appeal on June 22, 2022, and on July 15, 2022, the Department denied Claimant’s appeal “as untimely.”

On July 15, 2022, the Claimant appealed the Department’s denial.

As a result, a lower authority appeals hearing was scheduled to commence on August 22, 2022. The purpose for the hearing was for the parties to present evidence concerning the timeliness of Claimant’s June 22, 2022 appeal.

On August 22, 2022, Claimant failed to appeal for the hearing and as a result, which led to the Appeals Referee’s dismissal of Claimant’s case.

The Appeals Referee’s dismissal notice identified a September 1, 2022 deadline by which Claimant could appeal to the Delaware Unemployment Insurance Appeal Board.

On February 2, 2023, Claimant appealed her claim to the Board from a different address than the one she had on record. (That is five months late if you are keeping track.)

The Board determined that the appeal to the Board “was untimely under the statutory 10-day deadline set forth in [19 Del. C.] § 3318(c). The Board also did not find any “interests of justice” reasons to accept Claimant’s late appeal.

Claimant then appealed to the Delaware Superior Court for relief. Claimant filed “a one page opening brief” but did not file a reply brief as required. As a result, the Court issued correspondence to Claimant in February 2024 that her failure to submit a reply brief was a delinquent.

In late April 2024, Claimant finally issued a reply brief to the Court.

The Court held that the Board neither committed legal error nor committed an abuse in discretion in its denial of Claimant’s appeal due to tardiness. Further, the Court held that the board did not abuse its discretion for otherwise denying to hear Claimant’s appeal in the interests of justice.

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

Shirley Feige v. Unemployment Insurance Appeals Board C.A. No. N24A-05-002 KMV (Del. Super. April 7, 2025)

LITIGATION LAW UPDATE

When May Plaintiffs Present a Claim for Loss of Future Earnings? Follow-Up Queary: Are Future Earnings in the Legal Industry “Speculative”?

The Superior Court considered multiple pre-trial motions presented by both parties in a medical negligence case arising from a premature birth. One such motion was made by defendants to exclude any future loss of earning capacity claims.

The Court reviewed the seminal case of Henne v. Balick, a 1958 decision from the Delaware Supreme Court, to conclude that evidence of future wage loss would be too speculative to allow recovery. In Henne, the Court determined that it was too speculative to present a future wage loss claim for a law student with no prior work history. In opposition, plaintiffs cited Jardel Co., Inc. v. Hugues (allowing future earnings for a high school student enrolled in a nursing program) and Kemp v. Christiana Care (allowing a future earnings for a forklift operator who could no longer perform that job). The Court here upheld the standard set forth in Henne, but distinguished Jardel and Kemp finding that in those two cases there was “some evidence and history to support the claim.”

Interestingly, the Jardel Court (in 1987) found a high schooler’s enrollment into a nursing program to be sufficient evidence for future wage loss, whereas the original Henne Court (in 1958) found that a current law student’s claims for future earnings would be speculative. Although the Court relied upon the reasoning in Henne, the Court offered no discussion as to whether the outcome of Henne would be the same today, utilizing this standard. It is certainly curious for anyone exploring a career in law to learn that even the Delaware Courts may believe our future earnings to be “speculative.” Wright, et al. v. Christiana Care Health Services, Inc., et al., C.A. no. N23C-02-206 FJJ, April 22, 2025