Claimant filed a Petition seeking permanent impairment to the neck and to each shoulder. While the Employer’s expert agreed with the neck rating, he disputed any ongoing shoulder injuries and found there was no permanent impairment. Further, claimant indicated she wanted to pursue neck surgery. The Employer offered to pay the neck rating and half of each upper extremity rating if claimant agreed she was done treating, barring a change in condition. However, claimant declared the offer “too complicated” and elected to proceed to Hearing.

At the Hearing, both medical experts testified claimant was not a surgical candidate, and claimant testified she did not want or intend to pursue surgery. The Board concluded permanency was thus ripe and awarded the neck permanency, while denying permanent impairment to either arm, finding there was insufficient evidence of ongoing, work-related injuries to same – largely because claimant stopped treating for one shoulder within weeks of the accident and never treated for the other. The Board also declined to award an attorney’s fee, as the settlement offer was greater than the award.

Claimant filed a Motion for Reargument on the attorney’s fee issue, claiming the Board award “inchoate benefits,” to include the right to pursue neck surgery in the future. The Employer opposed, as the Board had awarded no such thing. The Board issued a decision denying the Motion, reiterating it had relied upon claimant’s own testimony to find permanency was ripe and surgery was not a treatment option. The Board confirmed no attorney’s fee was warranted, as claimant gained nothing beyond the neck permanency, and thus she received less than the settlement offer.

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

Rowland v. State of Delaware, IAB No. 1532970, Jun. 20, 2025 and July 29, 2025

EMPLOYMENT LAW UPDATE

Superior Court Affirms Agency Decision Due to Employer’s Failure to Participate

On January 22, 2023, Claimant Sullivan resigned from her employment with the United States Postal Service and later filed a Delaware Unemployment Insurance claim on the basis that she resigned with good cause.

Her claim was subsequently denied at the Claims Deputy and Appeals Referee levels. Claimant then appealed to the Board and a hearing was held on or about July 26, 2023.

Employer USPS did not attend the Board hearing, but nevertheless the Board found that Claimant resigned without good cause and therefore Claimant remained disqualified from receipt of benefits.

Claimant appealed to the Superior Court and the Court issued a briefing schedule. The Employer did not participate in the Superior Court appeal even though it was directed to do so.

On or about November 12, 2024, the Superior Court issued a Decision reversing the decision of the Board remanding the case back down to the Board. The Court also estopped the USPS from asserting that Claimant resigned without good cause. The estoppel was due to the Employer’s alleged violation of Superior Court Civil Rule 107(f) which allows the Court to reverse an agency decision when an appellee fails to comply with the rule (e.g. not complying with a briefing schedule like USPS in this case).

On remand, the Board noticed an additional hearing that was held on December 4, 2024. The Employer USPS did not participate. As a result of the Board hearing the Board still found that the Claimant resigned without good cause, but due to the November 12, 2024 Court Order, the Board otherwise declared Claimant qualified for benefits.

The Division of Unemployment Insurance then filed an appeal to the Superior Court for what the Court deemed to be a request to review “the Board’s original decision and review that decision on a different basis than the Court did originally.”

The Division made a series of arguments to the Court among which was that the Court should refrain to apply “Rule 107(f) where an appellee fails to submit an answering brief.” The Division argued, among other things, that the application of Rule 107(f) creates inconsistent results and it disregards the delineation of who has the burden of proof.

The Board, also participating in this appeal, argues that the Decision it entered after the Remand Order was required.

The Court noted that the typical review of a Board decision is whether the Board’s decision was free from legal error and supported by substantial evidence, but that the Employer’s failure to participate in the procedure “disrupted the ordinary process.” The Court confirmed that its prior application of Rule 107(f) was an appropriate remedy for the Court to apply “in its discretion, to deal with the USPS’ non-participation.”

Ultimately, the Superior Court affirmed the Board’s Decision after the second hearing because it was the correct result requested by the Court in the November 12, 2024 Remand Order (i.e. that Claimant be qualified for benefits). Therefore, even though the Board “unnecessarily conducted a second hearing” the Board’s ultimate decision was free from legal error as it complied with the Superior Court’s prior Remand Order that was meant to direct the Board to qualify Claimant for benefits.

If you have any questions concerning this case or whether an employee resignation can be attributable to an employer, please contact an attorney in our liability department.

Delaware Division of Unemployment Insurance v. Elizabeth Sullivan, United States Postal Service, and Unemployment Appeal Board; C.A. N25A-02-066 FWW (Del . Super. August 21, 2025)

LITIGATION LAW UPDATE

A 280 Paragraph Complaint will Constitute “Excusable Neglect” to Allow for an Extension to Respond

On May 22, 2025, pro se plaintiff Sandonato filed suit against Kent County Levy Court (her former employer), and Ms. Horsey (the human resources officer there). The Complaint was noted as containing 280 paragraphs of fact and 14 legal theories. Defense counsel entered an appearance on June 18, 2025 and filed a motion to extend the responsive pleading deadline by 30-days, citing the length and complexity of the Complaint. On June 24^th, plaintiff moved for default judgment, followed by a motion to strike defendant’s motion to extend, and both parties filed various other motions and responses.

Plaintiff’s motion to strike defendant’s motion to extend cited multiple reasons, most of which were summarily deemed without merit. However, the Court addressed plaintiff’s motion under Rule 6(b), noting “the Court for cause shown may at any time in its discretion (1) with or without motion or notice order the period [for an act] enlarged if request is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect [subject to exceptions not relevant here].”

The Court emphasized that, even under the more stringent “excusable neglect” standard, the court grant extensions “liberally” so as to allow cases to be adjudicated on their merits. Furthermore, the 20-day deadline for responsive pleadings anticipates “a short and plain statement of the claim” while the length of plaintiff’s Complaint here would reasonably warrant a deadline extension.

Having granted defendant’s extension to file responsive pleadings, plaintiff’s motion to strike, motion for default and motion for sanctions were all denied.

Jenifer Sandonato v. Trudena Horsey and Kent County Levy Court, C.A. No. K25C-05-023 NEP, September 10, 2025