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.
