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

Claimant was involved in a compensable work accident in 2019 injuries to multiple body parts, including the low back. In 2021, the Claimant filed a Petition to Determine Additional Compensation Due seeking payment for lumbar spine Platelet-Rich Plasma (“PRP”) injections.
Claimant called Dr. Grossinger in support of his position. Dr. Grossinger suggested that PRP was appropriate to consider given the failure of various other conservative modalities. As part of his testimony, Dr. Grossinger stated commentary made by Dr. Rudin in the medical records that PRP is a fraction of the cost of lumbar surgery, with quicker recovery, and that the vast majority of Dr. Rudin’s PRP patients improve and do not go on to have surgery.
Employer’s medical expert, Dr. Gelman, alleged that PRP injections are an “investigational” procedure with unproven efficacy and not part of the Delaware Practice Guidelines. Dr. Gelman further stated that PRP was not FDA approved and there were no high-level studies to prove PRP is effective.
The Board found in favor of the Employer. The Board noted that Dr. Grossinger is not an orthopedist and has no experience with PRP injections to the spine. The Board agreed with Dr. Gelman that while some reputable medical facilities are conducting PRP treatment, there are no high-level studies to prove its effectiveness. With that, the Board indicated that the Claimant failed to meet his burden to prove PRP was reasonable and necessary to his low back treatment.
Should you have any questions regarding this Decision, please contact John W. Morgan, or any other attorney in our Workers’ Compensation Department.
Matthew Bryant v. Marjam Supply Co., Inc., IAB Hrg. No. 1481980 (Sept. 28, 2021). 

On June 28, 2018, claimant allegedly suffered an injury to his right eye. A Petition was filed shortly before the expiration of the statute of limitations in 2020, and it named Benchmark Builders as the claimant’s employer. During the course of discovery, claimant indicated he was injured while working at a specific development in Middletown, Delaware, and identified blueprints and photographs as evidence of same. Benchmark denied the claim, as they never employed the claimant and did not believe the accident could have occurred when and where alleged.
At a Hearing, the evidence presented that claimant was brought to the jobsite by an individual, Onellas Morales; who provided tools and instructions. No one knew who he worked for, and his van had no logos or lettering. In addition, he paid the workers in cash. Claimant introduced the blueprints and photographs as evidence that he worked for Benchmark at the Middletown development. However, the Employer then testified and reviewed the documents – the blueprints were dated as being created in 2019, the year after the accident. The development in question broke ground in 2019 and was an open field in June 2018. The photographs showed houses that did not match the blueprints, and they lacked any signage relating to Benchmark.
The Board denied claimant’s Petition, finding no evidence he worked for Benchmark or was even injured at a Benchmark job site. The Board also considered a theory of liability under 19 Del. C. § 2311, which can hold a general contractor responsible when the subcontractor lacks valid Delaware workers’ compensation insurance. However, claimant could not prove any chain of employment linking back to Benchmark. To succeed under Section 2311, claimant must prove he worked for Benchmark or a subcontractor (or even a sub-subcontractor) of Benchmark on a Benchmark worksite. Because no one knew who brought on Mr. Morales or where the injury occurred, claimant’s Petition was denied outright.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
Denilson Mendez v. Benchmark Builders, IAB No. 1496799 (Feb. 2, 2022).

Lights…Camera…Termination: Surveillance Footage Wins Best Picture
Claimant was involved in a compensable work accident in 2016, when he was operating a construction vehicle that crashed and turned over, resulting in injuries to his head, face, neck, and back. Claimant was paid a substantial period of total disability benefits. On March 30, 2021, the Employer filed a Termination Petition seeking to terminate total disability.
Employer’s medical expert Dr. Gelman testified that at his defense medical examination, Claimant presented with a rolling walker and singled prong cane, moved slowly, dragged his left foot, and had trouble straightening his left leg. Surveillance footage, on the other hand, showed claimant walking without any limp, climbing into and out of a pickup truck, walking briskly, and not using any assistive devices. Based on this evidence and his examination, Dr. Gelman felt claimant could work in some capacity. Claimant’s medical expert, Dr. James Zaslavsky, testified that claimant could not work, surveillance notwithstanding, as it was his understanding that claimant did not take his medication on dates he was to be examined, which could have explained his worse presentation.

Claimant interestingly “doubled down” and testified at trial that he did not walk without a cane or walker, despite what was clearly shown on the surveillance. The Board issued a Decision indicating that they agreed with Dr. Gelman and the Employer, and granted the Termination Petition.

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

Joseph Frederick v. A-Del Construction Co., Inc. and/or Colonial Trucking, Inc., IAB Hrg. No. 1440955 (Dec. 2, 2021).

Claimant filed a Petition seeking 14% permanency to the right upper extremity (shoulder), as rated by Dr. Rodgers. Following a Hearing, the Board issued a Decision, commenting that although they felt that there was likely some applicable permanency rating due to the work injury, Claimant had not met his burden of proof as to there being 14% impairment. The Board specifically noted that it was uncomfortable with Dr. Rodgers’ permanent impairment rating when his testimony made it clear that he had not reviewed medical records documenting prior right shoulder injuries and treatment. 
Claimant then provided Dr. Rodgers with the pre-existing medical records. Dr. Rodgers issued an addendum maintaining the same rating. Claimant re-filed the Petition.
Following a Legal Hearing, the Board dismissed the Petition, finding the same was precluded by res judicata and/or collateral estoppel.
Should you have any questions regarding this Decision, please contact John Ellis or any other attorney in our Workers’ Compensation Department.
St. James v. State, IAB Hrg. No. 1490378 (Oct. 28, 2021)(ORDER)

Over the summer of 2021, a new Deputy Attorney General was appointed to represent the Delaware Department of Labor (DOL) primarily focused on ‘protecting’ the Delaware Workers’ Compensation Fund. Simultaneously, new policies and procedures were instituted. By letter dated July 14, 2021, the DOL stated it would deny the filing of Termination Petitions if there were no First Report of Injury and/or Agreement in the Board’s file; likewise, the DOL indicated it would consider Motions to Compel the filing of such documents with potential fines for noncompliance against employers/ carriers.
By memorandum dated July 16, 2021, the DOL indicated it would be objecting to Termination Stipulations and Orders that did not include reimbursement to the Workers’ Compensation Fund. These new WC Fund positions resulted in more litigation before the Industrial Accident Board relating to Termination Petitions. 
In the case of Kristopher Small v. Fieldstone Golf Club, IAB No. 1492931, the Fund Attorney filed a Motion to Dismiss the Termination Petition, while also requesting reimbursement of all benefits paid by the Fund. The Fund Attorney’s rationale was that claimant had gone back to work during pendency of the Petition and thus consented to termination. One of our workers’ compensation partners, Nicholas Bittner, Esq., opposed the Motion, which resulted in the parties appearing at an evidentiary Hearing. In an Order dated 09/15/21, the Industrial Accident Board agreed with our legal arguments and denied the Fund Attorney’s Motion to Dismiss, finding that an active controversy still existed, which rendered dismissal inappropriate.
On September 16, 2021, by memorandum, the DOL advised that it is in the process of “revamping” all forms, and that it will only be accepting the revised forms once this task has been completed. The DOL outlined its intent to reject any forms that have been modified without the Department’s authorization. It is unclear at this time whether the DOL will consider substantial compliance (i.e., minor deviations in the forms so long as all required information is present) when accepting or rejecting documents. More information will be forthcoming once the DOL has published the new documents; it has promised that advance notice will be given before the strict requirements come into effect. Once that happens, care should be given to ensure compliance to avoid fines and rejected Petitions. 
On the horizon, the Delaware Industrial Accident Board has scheduled a public meeting for October 15, 2021, at 10 AM by Zoom Meeting. The agenda includes introduction of new Board members; SB 94 - review and potential impact on IAB operations; and DSBA request on rules changes. Our office will be attending, and we will update you as to any farther developments. In the meantime, please contact any of our workers’ compensation attorneys if you have any questions or if we can be of further assistance.

Approximately two years ago, we reported on a Board Decision in the matter of Kathy Thomas v. City of Wilmington, IAB Hrg. No. 1417741 (July 30, 2019), where the Board for the first time indicated a preference for the 6th Edition of the AMA Guides over the 5th edition, in the context of total knee replacement surgery.
Specifically, the Board commented: “The Board is well aware that the Claimant’s Bar does not favor the 6th Edition solely for the reason that impairment ratings are lower which in turn translates to a lower financial recovery for claimants. The Board finds that in cases such as this one involving a specific surgical procedure the 6th Edition provides more accurate and equitable ratings that account for favorable surgical outcomes than the 5th Edition. In those cases and cases involving prosthetics use of the 6th Edition would be preferred.” We questioned whether this was the start of a new trend.
Just last week, the Board issued a new Decision in Craig Currington v. City of Wilmington, IAB Hrg. No. 1445651 (Sept. 10, 2021), accepting the opinion of defense expert Dr. Piccioni over that of Dr. Rodgers (same experts used in Thomas). In awarding the lower 6th Edition rating (23%) over the 5th Edition rating (37%), the Board noted that they considered Dr. Piccioni’s experience in performing total knee replacement surgeries over Dr. Rodgers, who does not perform these procedures. Dr. Piccioni testified credibly as to improvements in technology since the 5th Edition was published in 2011 that increase function, including better implants that are designed to match the natural contours of the knee, provide more stability, better materials used, reduced bleeding, and less scar tissue. Mr. Currington had in fact experienced substantial improvement with his knee replacement, as he was limited to light duty before surgery, within months of the surgery was working full duty in a physically demanding job without substantial problems. The Board accepted Dr. Piccioni’s opinion that this great outcome was consistent with the improvements he sees in his own patients due to advancements in technology.
Should you have any questions concerning this Decision, please contactGreg Skolnik, or any other attorney in ourWorkers’ Compensation Department.

It has long been understood in Delaware that permanency is a battle between two experts, each with their own rating, and supported or supplemented by factual and medical evidence. Under well-settled law, the Board can only fashion its own alternative rating when supported by and based upon the evidentiary record. Turbitt v. Blue Hen Lines, Inc.  711 A.2d 1214 (Del. 1998). Despite this possibility, permanency is overwhelmingly approached and argued as an either/or proposition – a choice between the claimant’s expert rating and the defense expert’s rating. 
However, a growing trend has been emerging in this area. Faced with a high rating from claimant’s expert and a 0% rating from the defense expert, the Board is beginning to find claimants failed to meet the burden of proof as to the precise permanency rating. This results in the Board denying the Petition but not affirmatively finding there is no permanent impairment.
Three recent cases are illustrative. In St. James v. State of Delaware, IAB No. 1490378 (May 18, 2021), the Board rejected a 14% right upper extremity impairment rating, noting the claimant’s lack of disclosure of prior injury to the body part raises an issue of possible apportionment, which the claimant’s expert did not address. As such, the Petition for permanent impairment benefits was denied. In DeBenedictis-Bayne v. State of Delaware, IAB No. 1482162 (Apr. 13, 2021), the Board noted concerns with Dr. Rodgers’ rating of 20% cervical spine impairment. Dr. Rodgers’ examination findings did not support the elevated rating, and while the Board declined to find 0% permanency, it denied the Petition, as the claimant failed to meet her burden of proof. In a similar Decision, in Shipmon v. State of Delaware, IAB No. 1461921 (Jan. 6, 2020), the Board found Dr. Rodgers’ 22% cervical spine impairment rating to be “highly inflated.” Again, the Board did not specifically find a 0% impairment rating, but it denied the Petition. Claimant appealed, and the Superior Court recently affirmed the Board’s denial of the Petition (see Shipmon v. State of Delaware, C.A. No. N20A-01-007 DCS, Jul. 30, 2021).
It is possible these claimants will obtain new, reduced permanency ratings and will re-file for permanency. In that instance, it will of course be our position that the prior litigation outcomes would preclude re-filed permanency allegations as a matter of law, but if this argument is rejected by the Board, then the prior hearing record would at a minimum be of assistance in challenging the re-filed claims on their merits. Hopefully, the mere costs of re-filing with a new permanency opinion would dissuade claimants. Going forward, these outcomes should be considered at the time of the 30-Day Rule deadline in similar matters.
If you should have any questions on this issue, then please contact any Attorney in ourWorkers’ Compensation Department.

  • 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.