State News : Delaware

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


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Delaware

HECKLER & FRABIZZIO

  302-573-4806

  • Live hearings have resumed at the Industrial Accident Board effective July 12! Employers/carriers may observe a corresponding increase in disfigurement hearings and Petitions given disfigurement hearings have not been conducted since before the pandemic began.

  • Even before July 12, in person hearings did take place on a limited basis, upon request of the parties. Nick Bittner, partner, handled a live in-person Hearing at the Board on 4/12/21, only the second live, in person, Hearing held since the pandemic. Torres v. Star Building Services, Inc. This Hearing was requested to be conducted in person, primarily due to the need for a translator and complexity of issues presented. The Board found in Employer’s favor on both of claimant’s Petitions. Great job Nick!

  • The Department of Labor/Industrial Accident Board building in Wilmington is set to be renovated prior to formally reopening to the public, at a date to be announced.

  • Carrier beware (when calculating AWW)! In the recent matter of Garcia-Espinoza v. American Bread Co., the Board denied awarding any more than a 25% credit for an overpayment of total disability based upon an incorrectly calculated average weekly wage, noting that the carrier missed two opportunities to see that the pay stubs were for bi-weekly rather than weekly compensation. In reaching this decision, the Board looked to the relative sophistication of the carrier over that of the claimant.

  • Board denies multiple myeloma cancer compensability after Hearing: Greg Skolnik successfully defended, through to Hearing, allegations that a claimant’s decades long service as a firefighter, where he was indisputably exposed to a variety of carcinogens, caused multiple myeloma, a bone and blood type cancer. The Board noted that even claimant’s medical expert agreed that the medical science had not been able to identify any specific etiology or carcinogen causative of multiple myeloma, and claimant carried the three most commonly known risk factors for this condition – age, race, and gender.

  • New trend: Carpal tunnel no longer “slam dunk” for the “repetitive use” injured worker? Recent case law has suggested that the Board is applying closer scrutiny and more often rejecting carpal tunnel and other repetitive use type claims. These claims should therefore, be very thoroughly investigated, and our office contacted with any questions prior to making compensability determinations. 

For many years, the common wisdom has held that carpal tunnel syndrome occurs through repetitive use of the hands and fingers; typing is often given as an example of what causes this malady. Consistent with this common wisdom, the Industrial Accident Board often found carpal tunnel syndrome to be related to one’s employment performing repetitive hand movements. However, the Board appears to be undergoing a paradigm shift in the compensability of allegedly work-related carpal tunnel syndrome, consistent with a growing body of scientific literature on the subject.
A recent Board Decision has adopted the most recent scientific literature on carpal tunnel syndrome. Specifically, the Board accepted the opinion of a medical expert that recent scientific studies were performed comparing keyboarding work with the general population and the occurrence of carpal tunnel syndrome; those studies showed no increased occurrences of carpal tunnel syndrome with individuals who performed regular keyboarding work. See Lewis v. State, 1481670 (Feb. 9, 2021). However, the expert in that case did note an increased occurrence of carpal tunnel syndrome in professions “with a forcible use of the wrist against resistance,” with examples of meat packing plants and work with vibrating tools.
It is also worth noting that carpal tunnel syndrome has been alleged as a consequence of acute trauma, whether to the shoulder, wrist, hand, or fingers. However, much of the same science applies. The Board has accepted a medical opinion, offered in the case of an alleged traumatically induced carpal tunnel syndrome, that “60 percent of CTS cases have an idiopathic, or unexplained, origin.” Woodie v. Malik’s Repair, Inc., IAB No. 1496417 (Nov. 13, 2020). The idiopathic nature of the condition can combine with testimony on a lack of direct trauma, and/or a delay in symptoms, to avoid compensability. See Gonzalez-Hernandez v. JT Hoover Concrete, IAB No. 1465912 (Sep. 6, 2019).
In sum, the Board is casting a more critical eye on allegations of carpal tunnel syndrome. For that reason, claims of carpal tunnel syndrome should be investigated thoroughly, with the goal of raising a vigorous defense where possible. Following these trends and the Board’s guidance on same, allegations of carpal tunnel syndrome from repetitive hand or finger movement should be scrutinized to a greater extent, while a diagnosis following trauma should be investigated for prior symptoms, delays in symptoms, and potential idiopathic or alternative causes of the condition and/or symptoms. A full investigation, supported by an expert examination, will help to continue this trend in favor of the defense.
If you should have any questions on this issue, then please contact anyAttorney in our Workers’ Compensation Department.

WORKERS' COMPENSATION LAW
Deny, Deny, Deny – Claimant’s Denial of History Results in Denial of Petition
The Claimant was involved in a work-related lifting injury to her low back in June 2018. In October 2018, Claimant went to the emergency room with shoulder and neck pain, with no, follow-up treatment for the shoulder until she saw an orthopaedic surgeon in April 2019. According to the surgeon, Claimant identified an incident that occurred 6-8 weeks prior in which she was wearing a large, bulky back brace and attempted to reposition herself; after placing her full weight on her left arm, she experienced left shoulder pain, which was ultimately diagnosed as a rotator cuff tear. A similar history was given to the physical therapist. The surgeon testified that he relied upon this history to relate the left shoulder injury to the work accident, as he placed the blame on the work-related low back brace causing the claimant to move unnaturally.
At the Hearing on Claimant’s Petition, however, Claimant gave an entirely different story. Claimant testified she was sitting on the couch in October 2018 and moved her left arm outward, at which point she felt a pop in her shoulder. Claimant specifically denied the history given by the surgeon and the physical therapist, with respect to both the mechanism of injury and the timing – she insisted it was a single event in October. Claimant also denied moving in any particularly awkward or abnormal ways while in the brace, again departing from the history reported by her surgeon.
After hearing the significant inconsistencies and outright denials of the recorded histories, the Board found Claimant was not credible or consistent, finding her “timeline of events incoherent” and noting her denials of the history given to her doctors difficult to reconcile. The Board was “left wondering if there was an inciting event” and, if so, whether it was one event or multiple. Instead, the gaps and uncertain symptoms and causes supported the opinions of the Employer’s expert, Dr. Matz, who testified that Claimant’s condition presented as the result of a rotator cuff that has worn down over 68 years of daily life and work. Because the Board could not reconcile the denials with the treating surgeon’s efforts to explain the mechanism of injury, the Board was left with no choice but to deny Claimant’s Petition entirely on the basis of causation alone.
Should you have any questions regarding this Decision, please contactNick Bittner or any other Attorney in our Workers’ Compensation Department.
Geraldine Daggett v. ShopRite, IAB No. 1500021, March 19, 2021.

It Is Okay to Lose ‘Round One’ If You Conclude with a Complete Knockout
The parties entered into an Agreement acknowledging a lumbar soft tissue strain injury. Employer filed a Petition seeking to void the Agreement for fraud, arguing that Claimant had materially misrepresented her prior medical history at the time the Agreement was made. The Board denied the Petition finding there was insufficient evidence for the Agreement to be rescinded due to fraud.
Employer filed a new Petition seeking to terminate ongoing benefits, under the theory that any work-related injury had resolved. Claimant argued that the Board’s earlier ruling “implicitly acknowledged” the compensability of radicular symptoms associated with the work injury, and therefore precluded a finding of resolution of injury.
The Board rejected Claimant’s legal argument, noting that the burden of proof relating to fraud, that was controlling at the first Hearing, is a different and higher standard than the burden of proof on whether benefits should be terminated. Claimant could have misrepresented her medical history, but not to a degree of a legally fraudulent misrepresentation. The Board commented that it should have been clear from the first Decision that it was not deciding issues of nature and extent of injury, only whether the Agreement should be rescinded for fraud.
The Board also agreed with Employer that Claimant had a pre-existing degenerative condition with a radicular component that became symptomatic leading up to the work accident and not impacted by the work accident. The Board accepted the opinions of defense medical expert Dr. Gelman, over that of Dr. Rudin, primarily because the Board did not find Claimant credible. Claimant provided very specific testimony that her radicular symptoms migrated from left to right sided secondary to the work accident. It was “suspect” that claimant would be that specific in testimony, yet three separate emergency room clinicians specifically recorded either no trauma or non-work-related histories. It was also suspect that in many locations in the records, Claimant had explicitly denied any history of prior low back pain or pain involving the same body part. The Board also noted Dr. Gelman’s opinions that claimant’s pre-existing MRI findings were competent to cause both right and left sided problems. Therefore, the Board found that Claimant’s soft tissue strain injury had resolved and granted Employer’s Petition.
Should you have any questions regarding this Decision, please contactJohn Ellis, or any other attorney in ourWorkers’ Compensation Department.
Dawn Lawson v. Amazon.com, Inc., IAB Hrg. No. 1473748 (Jan 7, 2021).

Claimant, Mary Justice, was seeking acknowledgment of an alleged cumulative detrimental effects injuries to her back and lower extremities as the result of lifting activities as a school bus aide.
The Board denied Justice’s claim, noting she was not credible as there were numerous inconsistencies throughout the case. Claimant denied having any prior back problems during a defense medical examination with Dr. Rushton and told her own doctor that she had back surgery in 1989 and then no other back problems. The Board noted these statements were “far from the truth” as she had extensive spinal problems since 1989 with several injuries and numerous rounds of treatment over the years, including additional lumbar surgical recommendations, which Claimant also denied during her testimony at the Board. Claimant denied having diabetes, which was contradicted by her own records. She failed to report two other jobs in connection with filing her Petition, despite being specifically asked for this information. She made conflicting statements about when her allegedly work-related back problems started. Her job duties were much less physically demanding than she alleged. She filed numerous prior workers’ compensation claims, but denied them when speaking with the adjuster, and claimed to not be able to remember them during the current Hearing, despite the current Hearing being conducted in front of the same Hearing Officer as a prior Board Hearing. She made statements in the earlier Hearing that were inconsistent with statements made at the current Hearing. Given all of the above inconsistencies, the Board noted that they did not believe that claimant was injured as a result of her job duties as a school bus aide.
Should you have any questions concerning this Decision, please contactJohn Ellis or any other attorney in our Workers’ Compensation Department.
Mary Justice v. State, IAB Hrg. No. 1494830 (Feb. 5, 2021)

Claimant was involved in a compensable work accident in 2001. She received total disability benefits until they were terminated in 2010. She received significant awards of lumbar and cervical spine permanent impairment. In 2020, Employer filed a Petition seeking to terminate ongoing narcotic medications and injections provided by Drs. Woo and Winas.

In accordance with the opinion of the defense medical expert, Dr. Townsend, the Board granted Employer’s Petition finding that claimant was required to wean over a 10-month period of time, and that injections were no longer reasonable, necessary, or causally related. The Board questioned claimant’s credibility as to whether her treatment was effective in improving her function, noting that despite extensive evidence that she was physically able to return to work for over 10 years, she never actually attempted to return to work in any capacity. The claimant was utilizing approximately 300 morphine milligram equivalents (“MME”) of narcotic medication per day, which was grossly in excess of limits of 90 MME set forth by the Centers for Disease Control. Supposedly effective injections never resulted in a reduction in narcotic medication levels. The Hearing Officer rejected arguments from the claimant as to the “stable” nature of the treatment course, commenting that “simply because Claimant has been on the same pain management regimen for an extended period does not guarantee that a continuation of such treatment remains reasonable, necessary, and causally related to the work accident.”

This Decision represents a continuation of a trend in Board decisions ordering weaning from narcotic medications, where not effective, even when the medications have been prescribed for many years.

Should you have any questions concerning this Decision or the compensability of chronic pain management treatment in general, please contactJohn Morgan or any other attorney in our Workers’ Compensation Department atHeckler & Frabizzio. 

Deborah Cantoni v. Delaware Park, IAB Hrg. No. 1213719 (Jan. 12, 2021).

 

On November 20, 2017, claimant was diagnosed with mesothelioma related to asbestos exposure; he passed on February 24, 2018, and his estate filed a Petition to Determine Compensation Due against C&D Contractors on November 20, 2018.  The petition only listed C&D, as they were believed to be the employer responsible for claimant’s “last injurious” asbestos exposure.  As to the claimant’s other past employers, Boulden Plumbing LLC and Emjay Engineering, the claimant did not work for them within the ten-year latency period for developing asbestos-related mesothelioma. Further,  claimant’s work with these companies did not involve asbestos exposure. Accordingly, claimant’s petition did not name these employers. However, more than one year after the Petition was filed, employer defendant, C&D, filed a motion to add these employers as potential defendants; neither employer was given notice of the motion or a chance to respond before the Board granted the request.  Receipt of the Board’s Order was the first notice that either employer had of any potential link between claimant’s diagnosis and his employment with them.

Ultimately, both Boulden and Emjay filed Motions to Dismiss which proceeded to an Evidentiary Hearing where Boulden and Emjay presented evidence as to the lack of asbestos exposure as well as the lack of notice.  Claimant admitted that he did not file against either employer because it was believed that such claims lacked merit.  C&D’s position, however, was that Boulden and Emjay must be part of the litigation to reserve C&D’s right to pursue indemnification/ contribution against these employers.

The Board soundly rejected C&D’s argument agreeing with Boulden’s position that indemnity and contribution are not permitted in the context of an occupational disease – in fact, the Delaware Supreme Court explicitly recognized that other jurisdictions permitted indemnification while Delaware did not.  The employer/ carrier responsible for the last injurious exposure would be responsible for the entire claim.  The Board further agreed with Boulden’s arguments that Boulden must be dismissed because claimant did not meet the statutory deadlines.  Section 2361(d) of the Workers’ Compensation Act creates a one-year statute of limitations for occupational diseases, while Section 2342 requires the claimant to provide written notice of the potential link between the diagnosis and the employment within six months of claimant obtaining such knowledge.  Because the claimant failed to do so, there is an absolute bar on recovery.  C&D could not circumvent those requirements via its motion, and thus Boulden and Emjay were dismissed. 

William McLaughlin v. C&D Contractors, IAB No. 1478363, Jan. 5, 2021.


In 2017, Claimant slipped and fell, injuring her knee. In 2020, Claimant filed a Petition alleging 6% permanency to her left lower extremity, specifically the knee, based upon Dr. Bandera’s opinion, relying on the 5th Edition of the AMA Guidelines for Rating Permanent Impairment.
The Board denied the Petition, relying on the opinion of the defense medical expert, Dr. Piccioni. The Board noted that unlike Dr. Bandera, Dr. Piccioni is a Board certified orthopedic surgeon. Dr. Piccioni’s review of the records of claimant’s treating orthopedic surgeon, Dr. Leitman, showed that claimant recovered fully from her injuries within 2-3 months, when she was released to full duty and to be seen as needed. Dr. Piccioni agreed with Dr. Leitman’s assessment that following the 2-3 month point, claimant’s knee was “benign.” No treating provider ever recommended claimant use any sort of ambulatory aid, proceed with injections, or discussed surgical options. Claimant only followed up with Dr. Leitman once after the 2-3 month mark, where he again referred to the knee as “benign.” The Board questioned Dr. Bandera (not a surgeon) going against the opinions of two orthopedic surgeons, especially as Dr. Bandera did not evaluate the claimant until over 2 years had elapsed following the work accident.
The Board was also very critical of Dr. Bandera’s attempts to analogize claimant’s knee bruise diagnosis with patella subluxation and fracture diagnoses in the 5th Edition of the AMA Guides, as Dr. Piccioni testified credibly that these were not appropriate comparisons. The Board agreed with Dr. Piccioni that the 6th Edition of the Guides, which allowed for a zero rating for claimant’s specific diagnosis, even with continued credible subjective complaints, provided a much more fair and accurate representation of claimant’s true functional abilities in the knee.
Should you have any questions concerning this Decision, please contactGreg Skolnik, or any other attorney in Heckler & Frabizzio's Workers’ Compensation Department.
Darlene Cole v. State, IAB Hrg. No. 1463877 (Oct. 13, 2020).

WORKERS' COMPENSATION LAW
Me Thinks He Talked Too Much
Despite four compensable lumbar surgeries following a 2016 work accident, Claimant had not returned to work in any capacity and filed a Petition for a fifth lumbar surgery. Claimant’s expert, Dr. Zaslavsky testified that the surgery was needed to address adjacent segment disease that was causing progressively debilitating and severe functional problems.
Unfortunately for Claimant, the Board denied the Petition. In addition to citing Dr. Fedder’s defense expert testimony that claimant’s complaints were without any correlation to physical examination findings, the Board also noted that claimant’s physical therapy notes completely contradicted the allegation of significant functional deficits during the timeframe the claimant was considering surgery.
Specifically, physical therapy notes documented the claimant’s histories of being attacked by a dog, run over by a vehicle while doing mechanical work, turkey hunting, army crawling while turkey hunting, shooting and killing a turkey while hunting, plans to begin weightlifting, and consideration of pursuing martial arts classes while, at the same time, the claimant was engaging in hiking, camping, and fishing activities. Claimant also told his therapist that he was only undergoing the fifth surgery so that he would not lose his workers’ compensation benefits.
Should you have any questions concerning this Decision, please contact Greg Skolnik, or any attorney in our Workers’ Compensation Department.
Michael Padgett v. R & F Metals, Inc., IAB Hrg. No 1450795 (Oct. 28, 2020).


Claimant was involved in a compensable work accident with multiple alleged injuries. At a prior Hearing in 2017, the claimant alleged ongoing injury to the head and neck, while seeking payment of surgery and other benefits related to same. The Board agreed with the Employer’s experts and found that any injuries to the head and neck had long since resolved. While the surgeries at issue were denied on technical grounds, they would still not be compensable due to the finding of resolution.
Claimant then filed Petitions seeking permanent impairment to the head and neck, as well as disfigurement to the neck related to one of the surgeries that had previously been denied. The Employer filed a Motion to Dismiss, citing to Christiana Care Health Services v. Davis, 127 A.3d 391 (Del. 2015), which affirmed a dismissal on similar grounds, as entitlement to benefits ends once a work-related injury has resolved. At the Legal Hearing, claimant argued that the recent Delaware Supreme Court case of Washington v. Delaware Transit Corp., 226 A.3d 202 (Del. 2020), stood for the proposition that the Board cannot dismiss permanency/disfigurement when those issues were not raised at the prior Hearing. 
The Board rejected the claimant’s arguments and found in favor of the Employer. The Board distinguished Washington as involving different circumstances; specifically, Washington involved a finding in a Termination Petition that the claimant could return to work as the basis for dismissing a subsequent permanent impairment claim. By way of contrast, the prior Petition in this matter involved questions of whether there were ongoing, compensable injuries to the head and neck. As the Board found there were not, the claimant lost all entitlement to subsequent benefits for those body parts. According to the Board, “Once the Board finds that a compensable injury resulting from a work accident either does not exist or has subsequently resolved, there simply can be no further entitlement to benefits with respect to that claimed injury.” Therefore, claimant’s Petitions were dismissed.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
Rebecca Clark v. State of Delaware, IAB No. 1393189, July 30, 2020.