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.


Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.


Delaware

HECKLER & FRABIZZIO

  302-573-4806

Claimant filed a Petition to Determine Compensation Due seeking acknowledgement of injuries to his back, neck, right hand/wrist and head, as well as payment of medical expenses and temporary total disability benefits. Employer disputed the entire claim and, in the alternative, argued for resolution of any work injuries. The Board granted the Petition in part, acknowledging a sprain and strain of the low back and of the right hand/wrist and payment of outstanding medical expenses to the right hand/wrist. The Board denied compensability for the neck and head injury as well as total disability benefits.

A key factor in the outcome involved issues with the claimant’s treating doctor, Dr. Cary. The Board expressed concern as to Dr. Cary’s treatment of the claimant and recordkeeping of same. Dr. Cary’s treatment violated 19 Del. C. Section 2322D(a)(1), which requires that a health-care provider providing treatment to an injured employee under the Delaware Workers’ Compensation Statute be a certified provider at the time of treatment or obtain preauthorization for each health-care produced, office visit, or health service. Dr. Cary was not certified when he started to treat the claimant. Another issue involved Dr. Cary referring the claimant to a work hardening program despite having released the claimant to full-duty work with no restrictions. If the claimant was released to full duty, then the Board found he would not have needed a work hardening program.

As for recordkeeping, the Board found Dr. Cary failed to comply with the requirements relating to prescribing medications, including narcotics. In discussing these requirements, the Board noted Dr. Cary failed to document checking the prescription drug monitoring program. He failed to document discussions with the claimant about the risks and benefits of the medications. When asked about this during deposition testimony, Dr. Cary responded stating he “could not possibly document every single thing that he says or does to a patient and every single thing the patient says to him.”  The Board stated it was “alarming” that after Dr. Cary’s medical license was already suspended previously, he was again not in compliance with his obligations when prescribing medications. The Board explained Dr. Cary was demonstrating “the same types of cavalier and unprofessional recordkeeping and medical oversight he exhibited leading up to his suspended license.” Due to these findings, in addition to other evidence, the Board did not find Dr. Cary credible, which contributed to the denial of certain benefits and resolution of the remaining work injuries.

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

Donald Savage v. Shoprite, IAB Hrg. No. 1518646 (May 26, 2023).

NEW WORKERS' COMPENSATION RATE EFFECTIVE JULY 1, 2023

The state of Delaware, Department of Labor, Secretary of Labor, Karryl Hubbard, has announced that the average weekly wage (AWW) in Delaware for the calendar year 2023 is $1,301.27 This wage figure was derived from data from employers participating in the State’s unemployment insurance system.


Based on this weekly wage figure, the maximum weekly worker’s compensation rate will be $867.52 The minimum workers’ compensation rate will be $289.18. The daily rates are as follows:


Effective July 1, 2023

Wage of $1,301.27 and over:

Maximum $867.52

$123.94

$247.87

$371.80

$495.73

$619.66

$743.59

$867.52

Minimum $289.18


STATE OF DELAWARE WORKERS’ COMPENSATION RATE CHART HISTORY


EFFECTIVE JULY 1, 2023

AWW $1,301.27 Maximum $867.52 Minimum $289.18


EFFECTIVE JULY 1, 2022

AWW $1,234.04 Maximum $822.70 Minimum $274.24

EFFECTIVE JULY 1, 2021

AWW $1,196.64 Maximum $797.96 Minimum $265.99

EFFECTIVE JULY 1, 2020

AWW $1,121.49 Maximum $747.66 Minimum $249.22

EFFECTIVE JULY 1, 2019

AWW $1,088.84 Maximum $725.89 Minimum $241.96

EFFECTIVE JULY 1, 2018

AWW $1,070.48 Maximum $713.65 Minimum $237.88

EFFECTIVE JULY 1, 2017

AWW $1,030.49 Maximum $686.99 Minimum $229.00

EFFECTIVE JULY 1, 2016

AWW $1,034.18 Maximum $689.45 Minimum $229.82

EFFECTIVE JULY 1, 2015

AWW $1,019.44 Maximum $679.63 Minimum $226.54

EFFECTIVE JULY 1, 2014

AWW $998.35 Maximum $665.57 Minimum $221.86

EFFECTIVE JULY 1, 2013

AWW $991.19 Maximum $660.79 Minimum $220.26

EFFECTIVE JULY 2, 2012

AWW $967.52 Maximum $645.01 Minimum $215.00

EFFECTIVE JUNE 13,2011

AWW $933.08 Maximum $622.05 Minimum $207.35

EFFECTIVE JUNE 22,2010

AWW $914.73 Maximum $609.82 Minimum $203.27

EFFECTIVE JUNE 16,2009

AWW $916.00 Maximum $610.67 Minimum $203.55

EFFECTIVE JUNE 3, 2008

AWW $907.73 Maximum $605.15 Minimum $201.72

EFFECTIVE JUNE 7, 2007

AWW $888.38 Maximum $592.25 Minimum $197.42

EFFECTIVE JUNE 7, 2006

AWW $857.46 Maximum $571.64 Minimum $190.55

EFFECTIVE JUNE 6, 2005

AWW $815.29 Maximum $543.53 Minimum $181.18

EFFECTIVE MAY 21, 2004

AWW $785.75 Maximum $523.83 Minimum $174.61

EFFECTIVE JUNE 4, 2003

AWW $760.21 Maximum $506.81 Minimum $168.94

EFFECTIVE JUNE 14, 2002

AWW $737.35 Maximum $491.57 Minimum $163.86

EFFECTIVE JUNE 20, 2001

AWW $703.65 Maximum $469.10 Minimum $156.37

EFFECTIVE JUNE 12, 2000

AWW $674.40 Maximum $449.60 Minimum $149.87

EFFECTIVE JUNE 15, 1999

AWW $652.02 Maximum $434.68 Minimum $144.89

EFFECTIVE JUNE 11, 1998

AWW $616.67 Maximum $411.11 Minimum $137.04

EFFECTIVE JUNE 18, 1997

AWW $588.69 Maximum $392.46 Minimum $130.82

EFFECTIVE JUNE 3, 1996

AWW $558.35 Maximum $372.23 Minimum $124.08

EFFECTIVE JUNE 15, 1995

AWW $535.79 Maximum $357.10 Minimum $119.06

EFFECTIVE JUNE 14, 1994

AWW $519.25 Maximum $346.17 Minimum $115.39

EFFECTIVE JULY 1, 1993

AWW $508.94 Maximum $339.29 Minimum $113.10

EFFECTIVE JULY 1, 1992

AWW $491.75 Maximum $327.83 Minimum $109.28

EFFECTIVE JULY 1, 1991

AWW $468.58 Maximum $312.39 Minimum $104.13

EFFECTIVE JULY 1, 1990

AWW $445.81 Maximum $297.21 Minimum $ 99.07

EFFECTIVE JULY 1, 1989

AWW $420.96 Maximum $280.64 Minimum $ 93.55

EFFECTIVE JULY 1, 1988

AWW $397.71 Maximum $265.14 Minimum $ 88.38

EFFECTIVE JULY 1, 1987

AWW $375.79 Maximum $250.53 Minimum $ 83.51

EFFECTIVE JUNE 5, 1986

AWW $366.33 Maximum $244.22 Minimum $ 81.41

EFFECTIVE JUNE 3, 1985

AWW $353.53 Maximum $235.69 Minimum $ 78.56

EFFECTIVE JUNE 15, 1984

AWW $347.45 Maximum $231.64 Minimum $ 77.22

EFFECTIVE JUNE 7, 1983

AWW $335.66 Maximum $223.78 Minimum $ 74.59

EFFECTIVE JUNE 1, 1982

AWW $312.66 $208.45 Minimum $ 69.47

302 573-4800 ~ www.hfddel.com

On 5/2/21, Claimant was injured in a fall from a second story window during a training exercise as a volunteer firefighter. On 9/12/22, Claimant filed a Petition seeking pre-authorization of a single level lumbar fusion surgery recommended by Dr. Yalamanchili during his first visit with the claimant on 9/7/22.

The Board found that the proposed surgery was not reasonable and necessary treatment at this time, accepting the opinion of defense medical expert, Dr. Close, over Dr. Yalamanchili.

The Board agreed with Dr. Close that the claimant had not exhausted conservative care. Claimant had not received steroid injections, which could be both diagnostic and therapeutic. Further physical therapy could benefit the claimant, especially as she had experienced good relief with this particular modality in the past. Anti-neuropathy medications should be trialed. An EMG would be of diagnostic utility. Claimant should have a second opinion.

The Board was also not comfortable with the risks associated with the surgery. Even Dr. Yalamanchili testified that claimant’s chances of success were 60-70% at best. Even with the surgery, the balance of patients do not improve and may even get worse. Dr. Close testified credibly that there were several factors that caused him to question Dr. Yalamanchili’s projections. Specifically, Claimant’s imaging findings were degenerative, common in patients in her age group, and showed no spinal instability. There was a bulge without any cord compromise. Fusion surgery is not effective for predominantly axial low back pain. Claimant conceded that she had predominantly low back pain and her leg pain was only intermittent. Fusion surgery would predispose Claimant to developing adjacent segment problems, especially as she already had pathology in at least one adjacent level.

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

Jesika Martin v. State of Delaware, IAB Hrg. No. 1511181 (Mar. 6, 2023).

Claimant was involved in a compensable work accident and was placed on total disability. He filed a Petition to add the left shoulder as a compensable body part, while the Employer filed a Termination Petition to end total disability and to address resolution of injuries. Right before the Hearing, the Claimant conceded to end total disability, and thus the Employer communicated to the Workers’ Compensation Fund a request for it to waive reimbursement of total disability, while noting the Hearing was still going forward on other issues. The Fund agreed.  

The morning of the Hearing, the Claimant requested a continuance of the resolution issue. The Board granted the continuance, and the Hearing went forward solely on the left shoulder issue. A few days later, the Board issued the Order on the continuance, which prompted the Fund to renege on its waiver of reimbursement; the Fund argued the continuance allowed it to bring in evidence to justify reimbursement and began scheduling a deposition. The Employer filed a Motion to Enforce the settlement/waiver, which was presented at a Legal Hearing, with the Board taking the matter under advisement while it considered whether to grant or deny the motion. 

The Board subsequently issued a Decision on Claimant’s Petition, finding the left shoulder was never injured in the work accident. It accepted the testimony of Dr. Matz, who discussed the lack of shoulder complaints in the early records, the lack of acute MRI findings, and other data points arguing against a specific shoulder injury. As such, claimant’s Petition was denied. 

A week later, the Board issued its ruling on the Motion to Enforce. The Order confirmed there was no indication of “deception or sharp practice on the part of Employer’s counsel,” and that the Employer was fully up front with the Fund about what it was seeking and what it intended to do; the continuance was strongly opposed by the Employer, and thus there was no foul play. The simple fact was the Fund had agreed to waive reimbursement, and the continuance was solely on the issue of resolution, and not on the issue of termination of total disability. Therefore, the Board ordered the Fund to abide by its waiver, resulting in no reimbursement from the Employer. 

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

Gary Steadman v. Evergreen Waste Services, IAB No. 1519915, Decision on Petition to Determine Additional Compensation Due, dated Nov. 21, 2022, Order on Motion to Enforce, dated Nov. 28, 2022

Claimant was allegedly injured in a work incident on July 25, 2018. Following a Hearing, the Industrial Accident Board issued a Decision finding claimant had sustained only a limited injury which had resolved, with treatment only compensable through January 2, 2019. Later, several medical bills for treatment after the date of resolution of injury were paid by accident.

Upon learning of the mistaken payments, the adjuster immediately requested reimbursement, with Heckler & Frabizzio providing a letter to be sent to each provider, explaining the consequences of the Board’s prior Decision, and reinforcing the need to issue reimbursement. However, none of the providers complied. The Employer filed a Motion with the Board, seeking to compel reimbursement of the mistaken payments. At the Legal Hearing, no physicians were present, despite receiving notice. Claimant’s attorney was present and argued against ordering reimbursement, out of concern the providers would then seek payment from the claimant.

In an Order dated August 11, 2022, the Board agreed with the Employer and granted the Motion. Because the treatment was all administered by certified providers under the Workers’ Compensation System, and because the Board has statutory authority over medical payments, the Board was empowered to compel reimbursement. Further, as the payments were issued for treatment after a clear cutoff date, the Board agreed they were made by mistake. As such, the providers were required to issue reimbursement within thirty days, or else they would be subject to further sanctions from the Board.

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

Patricia Wesley v. State of Delaware, IAB No. 1475026 (Aug. 11, 2022).

Claimant was involved in an 8/30/18 work related motor vehicle accident while working as a police officer. The neck and low back were accepted by Employer. She underwent a compensable two-level cervical fusion surgery on 8/7/19.

On 9/15/21, Claimant filed a Petition seeking 26% permanent impairment to the cervical spine and 10% permanent impairment to the lumbar spine, based upon Dr. Rodgers’ opinion. Dr. Rodgers rated permanency under the 5th Edition of the AMA Guidelines. Employer contested the ratings based upon the opinion of Dr. Piccioni, who found there was 9% permanency to the cervical spine and 3% permanency to the lumbar spine. Dr. Piccioni rated permanency under the 6th Edition of the AMA Guidelines.

After trial, the Board issued a Decision dated 7/7/22 finding in favor of Employer, and awarding Dr. Piccioni’s ratings. The Board noted that Claimant’s cervical fusion was successful. The surgery improved her pain and function. The treating surgeon released Claimant to work without any restrictions for the neck or back thereafter. Post-surgery imaging showed no nerve root compromise. Claimant declined offered lumbar injections. Claimant did not seek a second opinion for the neck or back. The Board also accepted the opinion of Dr. Piccioni that the 6th Edition focuses more on objective findings and function, whereas the 5th Edition relies more on subjective complaints.

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

Mobley v. City of Wilmington, IAB Hrg. No. 1476680 (July 7, 2022). 

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)