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In two recent cases, claimants opposed the employer’s efforts to enforce and/or obtain information relating to credits from third-party claims. Pursuant to 19 Del. C. § 2363(e), any amounts received by a claimant from a third party in relation to a work accident are deemed an advance payment by the carrier. The practical result is this becomes a credit against future benefits. The carrier is entitled to both investigate the amount and details of that credit and to assert the right to utilize the credit in the future.
In Maclary v. James Malin Plumbing, the employer sought to enforce a known credit, which it intended to use if the Board found there was liability for additional workers’ compensation benefits. Claimant opposed because, according to him, the issue was premature when there was no order for benefits and there was no signed Agreement. The Board agreed with our argument that nothing in the statute or the case law requires a signed Agreement before a credit is available for use. As for the timing issue, again, there did not need to be any benefits owed at the time to enforce the employer’s right to use a credit in the event benefits are owed in the future. Because of the waxing and waning nature of workers’ compensation claims, it is inevitable there will be periods where nothing is owed, but something may be owed in the future. Further, because it is possible to waive a credit, the Board noted it was wise of us to assert our credit and to litigate the issue, as doing so eliminated any potential claim of waiver. The Board granted the Motion.
In Teletor v. First State Inc. of Delaware, the carrier learned of a third-party settlement at mediation and requested documentation on the amount of the settlement and documentation relating to same. After months of receiving no response, the carrier filed a Motion to Compel. Claimant opposed the Motion, arguing the carrier was not entitled to the information because the carrier had not been found responsible for benefits and was not the employer, as this was a general contractor liability claim. He also argued the information was protected by a confidentiality agreement (an issue only identified the week of the Motion Hearing). The Board again rejected this argument and again noted it was wise of the carrier to file the Motion to avoid any claim of waiver. The Board did acknowledge the carrier may need to enter into a confidentiality agreement, but that did not extinguish the carrier’s right to the information requested. As such, the Motion to Compel was granted.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
Maclary v. James Malin Plumbing, IAB No. 1515598, Jun. 17, 2024
Teletor v. First State Inc. of Delaware, IAB No. 1520638, Jan. 17, 2025