Claimant was involved in a 2015 work accident with employer, underwent two compensable left arm surgeries, and was released to heavy duty in 2021. Shortly after returning to work, claimant fell from heights, with a new carrier on the risk, and sustained a right forearm fracture, lumbar and cervical spine injuries. Claimant underwent three right forearm surgeries thereafter, and also treated with an interventionalist for his spinal complaints. On 3/10/23, Employer filed a Petition to Review seeking to terminate total disability as to the 2021 injury. The Board granted Employer’s Petition after Hearing.

The Board accepted the opinion of defense medical expert Dr. Gelman over Claimant’s experts Drs. Rowlands and Townsend, with regard to return to work capability. Dr. Rowlands was adamant that claimant could not work in any capacity due to his spinal complaints. Dr. Townsend imposed a 3lb lifting restriction with the right arm. However, only Dr. Gelman testified as to physical therapy notes that showed claimant regularly lifting up to 30lbs with the right arm, and pushing up to 300lbs while using both arms. The Board said these records were “highly relevant” when evaluating the expert opinions. The Board was critical of Dr. Rowlands’ argument that claimant’s case was “complicated.” Dr. Rowlands’ own records showed that neck and back injections had been effective in reducing claimant’s pain. Claimant had not seen a surgeon for the neck in about two years. Dr. Rowlands admitted his own records did not document a lumbar spine examination in close to 8 months. Dr. Rowlands insisted this was a clerical error and he did examine the lumbar spine. The Board said this explanation was not persuasive or convincing.

The Board also rejected displaced worker arguments which focused on the alleged complexity of claimant’s injuries, his 6^th grade educational level, and inability to speak English. They noted that despite the alleged complexity of his injuries, he could work in some capacity. Claimant has lived in the United States for over 20 years and uses a cell phone. He has a drivers license and does drive. “Claimant’s age and current situation does not preclude him from attempting to return to work in some capacity, or event to learn English or to obtain a G.E.D. certificate to improve his employment possibilities in the future even given his physical restrictions following the work accident.” The Board also accepted testimony from employer’s vocational expert that Claimant’s ability to speak Spanish may be beneficial to his employment prospects, and accepted multiple jobs identified by this expert as compliant with Dr. Gelman’s restrictions.

Claimant was not awarded an attorney fee as the settlement offer of partial disability made more than 30 days before Hearing exceeded the rate of partial disability awarded by the Board.

Should you have any questions regarding this Decision, please contact Greg Skolnik or Carmella Cinaglia.

Jose Reynaga-Villagomez v. FER & JOA Construction, Inc., IAB Hrg. No. 1517047 (Oct. 13, 2022)

EMPLOYMENT LAW UPDATE

Hearsay Alone Is Not Enough

Claimant was employed by a tree removal company as an estimator and performed an unrelated side-job consisting of a door repair for a prospective tree removal customer. The customer was dissatisfied with Claimant’s handiwork and complained to the Employer that Claimant allegedly threatened her over payment for the job. Based on the alleged threats, Employer terminated Claimant from his position at the tree removal company in September 2022. Claimant filed for Delaware Unemployment Insurance benefits shortly thereafter.

Claimant was disqualified from receipt of benefits by a Delaware Department of Labor Claims Deputy, and he appealed the determination. A hearing was held, and the Employer did not appear. The Division of Unemployment Appeals Referee overturned the Deputy’s determination and Claimant was thereby deemed qualified to receive benefits.

Employer appealed the Referee’s decision, and the Unemployment Insurance Appeals Board remanded the case back to the lower authority appeals level for a second hearing.

At the second hearing, Claimant’s partner who was present for the side-job testified that the prospective customer refused to pay Claimant for the side-job, but there was no threatening behavior by the Claimant toward the customer. Employer’s witnesses did not present first-hand testimony concerning Claimant’s alleged negative interaction with the prospective customer. The Referee ruled in favor of the Claimant because Employer did not meet its burden to establish willful or wanton misconduct to warrant a just cause termination as required by Delaware law.

The Employer appealed to the Unemployment Insurance Appeals Board and presented an e-mail from the prospective customer as evidence that Claimant threatened her. The Board held that the e-mail was hearsay and found that Claimant was qualified for benefits.

The Employer then appealed to the Delaware Superior Court whose review on appeal was to determine whether the Board’s decision “was free of legal error and supported by substantial evidence.” The Court held that the Board “cannot render a decision solely based on hearsay evidence,” which is what Employer had been relying on in their case.

Employer’s customer’s e-mail was characterized by the Court as “a single, non-testifying customer complaint” which is “not sufficient” for a finding of termination with just cause.

Should you have any questions regarding this decision, especially the importance of first-hand witness testimony at unemployment insurance hearings, or any employment law questions, please contact any attorney in our liability law department.

Strobert Tree Service, Inc. v. Unemployment Insurance Appeal Board, Delaware Department of Labor, and George Shaw, C.A. No.: S23A-05-001 RHR (Del. Super. Ct. November 2, 2023)

LITIGATION LAW UPDATE

Failure of Insurer to Make a “Meaningful Offer” for Increased UM/UIM Coverage Equates to an Ongoing Offer: Court Allows Retroactive Acceptance of Additional Coverage

The Superior Court grants plaintiffs’ Motion for Summary Judgment, holding that defendant GEICO failed to make a “meaningful offer” to plaintiffs for additional UM/UIM coverage pursuant to 18 Del. C. §3902(b). Plaintiffs added a new vehicle to their policy in December of 2020. On January 1, 2021, plaintiffs received an email notification advising that their policy documents were available online and which required review. The Declaration Page for the updated policy included a section for UM/UIM coverage options as including: 1) minimum limits of $25,000/$50,000; 2) bodily injury liability policy limits; 3) Other – Specify in Column C; or 4) rejection of coverage entirely. Information in the next column advised: “please see page 5 of this form for all available limits and costs.” The box for option 1 was checked.

The Court reviewed that the insurer bears the burden of demonstrating compliance with the “meaningful offer” requirement under Delaware law, and further that insurers have an affirmative duty to make a “meaningful offer” when there is a material change to the policy. “To carry this burden, the insurer must demonstrate that the offer included: (1) the cost of the additional coverage; (2) a communication to the insured which clearly offers UM/UIM coverage; and (3) an offer for UM/UIM is made in the same manner and with the same emphasis as the insurer’s other coverage.” If this burden is not met, Delaware law considers the offer to be a continuing offer, which may be accepted later and even following an accident.

The Court considered the GEICO policy documents in light of prior case precedent and concluded that no “meaningful offer” was made. Specifically, there was no language in the document conveying an offer, or recommending any increased coverage, but the language was instead “merely a succinct recitation of the requirements of §3902(b), with no clear recitation that an offer of additional coverage was being made.” Finding no “meaningful offer” having been made, plaintiffs were entitled to UM/UIM coverage matching their bodily injury limits of $100,000/$300,000.

Kevin McDonald and Hillary McDonald v. Government Employees Insurance Company. If you are reading this email Nbogia@hfddel.com for a five dollar wawa gift card. (GEICO), C.A. No. N22C-02-204 FJJ (Del. Super. Nov. 3, 2023)