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.





The Films Matter: Employer Beats Adjacent Segment Spinal Surgery

Claimant was involved in a 4/30/21 work accident. Employer accepted a C4-7 fusion surgery performed on 11/16/21. Following this procedure, Employer filed a Petition to Review seeking to terminate total disability benefits. Employer filed a cross Petition seeking payment of additional surgery done on 9/11/23, extending the fusion to cover the adjacent C3-4 level.

Accepting the opinion of defense medical expert Dr. Kahanovitz over claimant’s treating surgeon Dr. Eskander, the Board found claimant’s more recent neck surgery not reasonable or necessary treatment, and also terminated total disability. The Board noted that Dr. Kahanovitz personally reviewed flexion extension x-ray and MRI films, and observed no changes to the C3-4 level or progression of Claimant’s condition. There was no evidence of instability or significant neurological compression. Without these factors, there was no indication to extend the fusion. The Board also agreed with Dr. Kahanovitz that it was questionable to extend the fusion when both doctors agreed that the level above at C2-3 had evidence of instability, putting the claimant at further risk down the road. As to the Petition to Review, the Board commented that even claimant conceded on cross examination that she was capable of doing a part time work from home job. In this context, the testimony of Dr. Kahanovitz as to return to work capability was deemed more credible.

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

Patricia Abrams v. State of Delaware, IAB Hrg. No. 1510985 (Mar. 27, 2024). 

The Department of Labor, Division of Industrial Affairs issued a Final Order concerning the revised Fee Schedule Introduction, which became effective February 11, 2024. Please click here for a copy of the Order.


Heckler & Frabizzio's partner, Anthony Frabizzio serves on the Workers' Compensation Oversight Panel and participated in making the necessary revisions which were approved.


One of the most important changes includes outpatient facilities being able to be reimbursed for facility charges for multiple-level procedures (see Sections 1.4; old 4.6.2/new 4.7.2; old


Other possible impactful changes include:


  • new 4.11.2 -- CRNA’s paid at the same rate as anesthesiologists.
  • old  -- There are 11 codes that moved from $0.00 to POC (64480, 64484, 64491-64492, 64494-64495, 64634, 64636, 77001-77003)
  • old 4.6.2-4.6.6/new 4.7.2-4.7.6, old & old -- clarification on using the 2015 status indicators and state comments on these indicators.
  • old – redefining the POC percentage to be as already found in FAQs vs. the listed percent in the narrative.
  • old 4.9.3/new 4.10.3 -- redefining the POC percentage to be as already found in FAQs vs. the listed percent in the narrative.
  • old - changes to moderate sedation (due to CPT changes a few years ago).
  • status indicator N does still apply but the state comment does allow for some exceptions if noted in the Fee Schedule. Those exceptions are currently to codes (64480, 64484,64491-64492, 64494-64495, 64634, 64636, 77001-77003) which changed from 0.00 (not covered) to POC.


For more information, please contact Anthony Frabizzio. 

Claimant was involved in a work-related 9/24/20 motor vehicle accident resulting in injuries to his ribs, bilateral wrists, pelvis and right foot. Claimant had previously undergone two unrelated lumbar spine surgeries involving fusions, first at L4-5 and most recently at L3-4. After this work accident, the claimant underwent two lumbar spinal fusions, performed in February 2021 and May 2021, culminating in a combined lumbar fusion from T10-L5. The claimant filed a Petition to Determine Additional Compensation Due seeking acknowledgement of a low back injury, including payment of the surgeries, and recurrence of total disability. A Board Hearing was held on 12/8/23 at which time the Board appropriately denied claimant’s Petition, ruling the low back injury was not causally related to the work accident and claimant did not sustain a work-related recurrence of total disability.

The Board opined it found “most interesting” the “timeline and chronology of events and emergence of low back issues … in the context of [Claimant’s] preexisting condition.” The crucial facts included the claimant’s prior back injury, the claimant’s prior low back surgeries in 2013, and 6 months before the accident in 2020, as well as pre-accident CT scan images. The claimant’s lumbar spine was fused, with a “cage” inserted into his spinal column in 2013 and again in early 2020. CT scans from before the work accident revealed the surgical cage had migrated beyond the interior cortex of his spine before the work accident even occurred.

Claimant argued that his surgical hardware had failed because of the work accident, which created the need for the final two lumbar spine surgeries. Drs. Piccioni and Rushton testified for the Employer, stating that immediately after the car accident, the claimant identified no low back complaints during his nine-day stay in the hospital. The doctors agreed that if this car accident caused the hardware to fail, then the claimant would have felt similar or even more pain compared to his other factures. The doctors agreed the pre-accident CT scans showed the cage migrating already, and the “wheels were already in motion” for the claimant to need additional back surgery. Post-accident X-Rays were also compared to the pre-accident films, which clearly showed the surgical cage, implanted months prior to his work accident, had migrated but was stable after the trauma of the car accident. Finally, claimant’s surgical hardware failed again, this time between the third and fourth surgeries. If it could fail then with no trauma, then it could have failed previously even without the work accident, contrary to the opinions of claimant’s experts.

The Board agreed that there is no evidence that the work-related trauma accelerated or impacted the claimant’s pre-existing low back condition. The Board issued a Decision finding the low back injury was not causally related to this work accident but was an ongoing issue the claimant had had for many years pre-dating the accident. Finally, because claimant’s doctors linked disability to the low back, the Board found claimant did not sustain a work-related recurrence, and thus the Petition was denied outright.

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

Young v. IG Burton & Company, Inc., IAB Hrg. No. 1510414 (Dec. 20, 2023)

The Claimant/Appellant, Barry Mullins, was diagnosed with ocular melanoma in 2010 and passed away in 2021. Claimant was awarded a disability pension as a result. Claimant’s widow, Melissa Mullins, filed a Petition with the Industrial Accident Board on April 22, 2022, seeking workers’ compensation survivor benefits, based upon the City of Wilmington Pension Code. An Industrial Accident Board Hearing took place on December 8, 2022, where Employer argued benefits paid through the City of Wilmington Pension Code did not constitute or establish liability for Workers’ Compensation benefits relating to an occupational disease. The Board ultimately found the Claimant had failed to prove entitlement to workers’ compensation benefits in relation to his death from ocular melanoma.  

The Claimant then appealed this Decision to the Superior Court. It was the Claimant’s position that the City “acknowledged” the claimant’s injury by paying a disability pension to the Claimant’s widow, claiming the presumption of a work-related condition was unrebutted as a result. It was the Employer’s position that the cause of the Claimant’s condition was not related to his employment with the City. The Employer further argued that payment to the Claimant’s widow through the Pension Code is independent from any payment under the Workers’ Compensation Act.

The Superior Court agreed with the Board Decision. Establishing causation of a work-related occupational disease requires evidence “the employer’s working conditions produced the ailment as a natural incident of the employee’s occupation in such a manner as to attach to that occupation a hazard distinct from and greater than the hazard attending employment in general.” The Superior Court ruled payments under the Pension Code do not in turn make the City liable for causation under the Workers’ Compensation Act, as a finding of causation requires claimants to meet the burden established in the Act. The Court noted this was consistent with comments made in a prior Board Decision (Armstead v. City of Wilmington, IAB No. 1485578, May 6, 2021), in which the Board noted the standard under the Pension Code does not translate to the causation standard in the Workers’ Compensation Act.

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

BARRY MULLINS v. CITY OF WILMINGTON, N23A-01-004 CLS (August 18, 2023).

There are many sections of the Workers’ Compensation Act that may subject employers/carriers to fines, as follows:

·      19 Del. C. §2313 – Where an employer or insurance carrier fails within 10 days after knowledge of the occurrence of an accident resulting in personal injury to file a First Report of Injury, the employer may be fined between $100.00-$250.00. Reports made under this section are not admissible in evidence against the employer.

·      19 Del. C. §2320(8) – “Costs legally incurred may be taxed against either party or apportioned between the parties at the sound discretion of the Board, as the justice of the case may require.”

·      19 Del. C. §2322E(d) – Within 14 days of the issuance of an Agreement for any period of total disability, the employer shall provide to the health care provider/physician most responsible for the treatment of the employee’s work-related injury and to the employer’s insurance carrier, if applicable, a report of modified duty jobs which may be available to the employee. The insurance carrier for an insured employer shall send to such employer the aforementioned report for completion, and shall be independently responsible for providing a completed report of modified duty jobs to the health care provider/physician. 19 Del. C. 2322F(g) provides for fines of between $1,000.00-$5,000.00.

·      19 Del. C. §2322F(h) - An employer or insurance carrier shall be required to pay a health care invoice within 30 days of receipt of the invoice as long as the claim contains substantially all the required data elements necessary to adjudicate the invoice, unless the invoice is contested in good faith. If the contested invoice pertains to an acknowledged compensable claim and the denial is based upon compliance with the health care payment system and/or health care practice guidelines, it shall be referred to utilization review. Any such referral to utilization review shall be made within 15 days of denial. Unpaid invoices shall incur interest at a rate of 1% per month payable to the provider. 19 Del. C. §2322F(g) allows for fines of between $1,000.00-$5,000.00.

·      19 Del. C. §2346 – The Board may impose a fine not to exceed $500.00 for each use of the term “independent medical examination” or “IME”.

·      19 Del. C. §2362 – Requires payment of final Board Awards and settlement agreements within 14 days, and permits fines of between $500.00-$2,500.00 for non-compliance.

·      Huffman – If a Board Award or Agreement between the parties is not paid within 30 days of a final Award or Agreement, claimant can assert a Huffman demand under the Wage Payment Collections Act. If not paid within 30 days of the demand, Huffman sanctions/penalties include a liquidated damage payment of 10% per day of the outstanding balance up to 100% liquidated damages, costs of any filing (Superior Court Complaint) and a claimant’s attorney’s fee (rate of whatever is reasonable -- could be +/- $300.00 per hour). This is in addition to any other penalties otherwise available under the Workers’ Compensation Act.

·      19 Del. C. §2365 retaliation – fines of between $500.00-$3,000.00.

·      19 Del. C. §2374 – minimum of $250.00 per day or $10.00 per employee, whichever is greater, for the time period no workers’ compensation insurance policy is in effect.

·      19 Del. C. §2386 – whenever an insurance company or self-insurer violates this chapter, neglects or refuses to comply with this chapter, or willfully makes any false or fraudulent statement of its business or condition or a false or fraudulent return, it shall be fined between $100.00-$1,000.00 per offense.

Should you have any questions, please contact any attorney in our Workers’ Compensation Department. 

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).


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








Minimum $289.18



AWW $1,301.27 Maximum $867.52 Minimum $289.18


AWW $1,234.04 Maximum $822.70 Minimum $274.24


AWW $1,196.64 Maximum $797.96 Minimum $265.99


AWW $1,121.49 Maximum $747.66 Minimum $249.22


AWW $1,088.84 Maximum $725.89 Minimum $241.96


AWW $1,070.48 Maximum $713.65 Minimum $237.88


AWW $1,030.49 Maximum $686.99 Minimum $229.00


AWW $1,034.18 Maximum $689.45 Minimum $229.82


AWW $1,019.44 Maximum $679.63 Minimum $226.54


AWW $998.35 Maximum $665.57 Minimum $221.86


AWW $991.19 Maximum $660.79 Minimum $220.26


AWW $967.52 Maximum $645.01 Minimum $215.00


AWW $933.08 Maximum $622.05 Minimum $207.35


AWW $914.73 Maximum $609.82 Minimum $203.27


AWW $916.00 Maximum $610.67 Minimum $203.55


AWW $907.73 Maximum $605.15 Minimum $201.72


AWW $888.38 Maximum $592.25 Minimum $197.42


AWW $857.46 Maximum $571.64 Minimum $190.55


AWW $815.29 Maximum $543.53 Minimum $181.18


AWW $785.75 Maximum $523.83 Minimum $174.61


AWW $760.21 Maximum $506.81 Minimum $168.94


AWW $737.35 Maximum $491.57 Minimum $163.86


AWW $703.65 Maximum $469.10 Minimum $156.37


AWW $674.40 Maximum $449.60 Minimum $149.87


AWW $652.02 Maximum $434.68 Minimum $144.89


AWW $616.67 Maximum $411.11 Minimum $137.04


AWW $588.69 Maximum $392.46 Minimum $130.82


AWW $558.35 Maximum $372.23 Minimum $124.08


AWW $535.79 Maximum $357.10 Minimum $119.06


AWW $519.25 Maximum $346.17 Minimum $115.39


AWW $508.94 Maximum $339.29 Minimum $113.10


AWW $491.75 Maximum $327.83 Minimum $109.28


AWW $468.58 Maximum $312.39 Minimum $104.13


AWW $445.81 Maximum $297.21 Minimum $ 99.07


AWW $420.96 Maximum $280.64 Minimum $ 93.55


AWW $397.71 Maximum $265.14 Minimum $ 88.38


AWW $375.79 Maximum $250.53 Minimum $ 83.51


AWW $366.33 Maximum $244.22 Minimum $ 81.41


AWW $353.53 Maximum $235.69 Minimum $ 78.56


AWW $347.45 Maximum $231.64 Minimum $ 77.22


AWW $335.66 Maximum $223.78 Minimum $ 74.59


AWW $312.66 $208.45 Minimum $ 69.47

302 573-4800 ~

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).