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, Mary Justice, was seeking acknowledgment of an alleged cumulative detrimental effects injuries to her back and lower extremities as the result of lifting activities as a school bus aide.
The Board denied Justice’s claim, noting she was not credible as there were numerous inconsistencies throughout the case. Claimant denied having any prior back problems during a defense medical examination with Dr. Rushton and told her own doctor that she had back surgery in 1989 and then no other back problems. The Board noted these statements were “far from the truth” as she had extensive spinal problems since 1989 with several injuries and numerous rounds of treatment over the years, including additional lumbar surgical recommendations, which Claimant also denied during her testimony at the Board. Claimant denied having diabetes, which was contradicted by her own records. She failed to report two other jobs in connection with filing her Petition, despite being specifically asked for this information. She made conflicting statements about when her allegedly work-related back problems started. Her job duties were much less physically demanding than she alleged. She filed numerous prior workers’ compensation claims, but denied them when speaking with the adjuster, and claimed to not be able to remember them during the current Hearing, despite the current Hearing being conducted in front of the same Hearing Officer as a prior Board Hearing. She made statements in the earlier Hearing that were inconsistent with statements made at the current Hearing. Given all of the above inconsistencies, the Board noted that they did not believe that claimant was injured as a result of her job duties as a school bus aide.
Should you have any questions concerning this Decision, please contactJohn Ellis or any other attorney in our Workers’ Compensation Department.
Mary Justice v. State, IAB Hrg. No. 1494830 (Feb. 5, 2021)

Claimant was involved in a compensable work accident in 2001. She received total disability benefits until they were terminated in 2010. She received significant awards of lumbar and cervical spine permanent impairment. In 2020, Employer filed a Petition seeking to terminate ongoing narcotic medications and injections provided by Drs. Woo and Winas.

In accordance with the opinion of the defense medical expert, Dr. Townsend, the Board granted Employer’s Petition finding that claimant was required to wean over a 10-month period of time, and that injections were no longer reasonable, necessary, or causally related. The Board questioned claimant’s credibility as to whether her treatment was effective in improving her function, noting that despite extensive evidence that she was physically able to return to work for over 10 years, she never actually attempted to return to work in any capacity. The claimant was utilizing approximately 300 morphine milligram equivalents (“MME”) of narcotic medication per day, which was grossly in excess of limits of 90 MME set forth by the Centers for Disease Control. Supposedly effective injections never resulted in a reduction in narcotic medication levels. The Hearing Officer rejected arguments from the claimant as to the “stable” nature of the treatment course, commenting that “simply because Claimant has been on the same pain management regimen for an extended period does not guarantee that a continuation of such treatment remains reasonable, necessary, and causally related to the work accident.”

This Decision represents a continuation of a trend in Board decisions ordering weaning from narcotic medications, where not effective, even when the medications have been prescribed for many years.

Should you have any questions concerning this Decision or the compensability of chronic pain management treatment in general, please contactJohn Morgan or any other attorney in our Workers’ Compensation Department atHeckler & Frabizzio. 

Deborah Cantoni v. Delaware Park, IAB Hrg. No. 1213719 (Jan. 12, 2021).

 

On November 20, 2017, claimant was diagnosed with mesothelioma related to asbestos exposure; he passed on February 24, 2018, and his estate filed a Petition to Determine Compensation Due against C&D Contractors on November 20, 2018.  The petition only listed C&D, as they were believed to be the employer responsible for claimant’s “last injurious” asbestos exposure.  As to the claimant’s other past employers, Boulden Plumbing LLC and Emjay Engineering, the claimant did not work for them within the ten-year latency period for developing asbestos-related mesothelioma. Further,  claimant’s work with these companies did not involve asbestos exposure. Accordingly, claimant’s petition did not name these employers. However, more than one year after the Petition was filed, employer defendant, C&D, filed a motion to add these employers as potential defendants; neither employer was given notice of the motion or a chance to respond before the Board granted the request.  Receipt of the Board’s Order was the first notice that either employer had of any potential link between claimant’s diagnosis and his employment with them.

Ultimately, both Boulden and Emjay filed Motions to Dismiss which proceeded to an Evidentiary Hearing where Boulden and Emjay presented evidence as to the lack of asbestos exposure as well as the lack of notice.  Claimant admitted that he did not file against either employer because it was believed that such claims lacked merit.  C&D’s position, however, was that Boulden and Emjay must be part of the litigation to reserve C&D’s right to pursue indemnification/ contribution against these employers.

The Board soundly rejected C&D’s argument agreeing with Boulden’s position that indemnity and contribution are not permitted in the context of an occupational disease – in fact, the Delaware Supreme Court explicitly recognized that other jurisdictions permitted indemnification while Delaware did not.  The employer/ carrier responsible for the last injurious exposure would be responsible for the entire claim.  The Board further agreed with Boulden’s arguments that Boulden must be dismissed because claimant did not meet the statutory deadlines.  Section 2361(d) of the Workers’ Compensation Act creates a one-year statute of limitations for occupational diseases, while Section 2342 requires the claimant to provide written notice of the potential link between the diagnosis and the employment within six months of claimant obtaining such knowledge.  Because the claimant failed to do so, there is an absolute bar on recovery.  C&D could not circumvent those requirements via its motion, and thus Boulden and Emjay were dismissed. 

William McLaughlin v. C&D Contractors, IAB No. 1478363, Jan. 5, 2021.


In 2017, Claimant slipped and fell, injuring her knee. In 2020, Claimant filed a Petition alleging 6% permanency to her left lower extremity, specifically the knee, based upon Dr. Bandera’s opinion, relying on the 5th Edition of the AMA Guidelines for Rating Permanent Impairment.
The Board denied the Petition, relying on the opinion of the defense medical expert, Dr. Piccioni. The Board noted that unlike Dr. Bandera, Dr. Piccioni is a Board certified orthopedic surgeon. Dr. Piccioni’s review of the records of claimant’s treating orthopedic surgeon, Dr. Leitman, showed that claimant recovered fully from her injuries within 2-3 months, when she was released to full duty and to be seen as needed. Dr. Piccioni agreed with Dr. Leitman’s assessment that following the 2-3 month point, claimant’s knee was “benign.” No treating provider ever recommended claimant use any sort of ambulatory aid, proceed with injections, or discussed surgical options. Claimant only followed up with Dr. Leitman once after the 2-3 month mark, where he again referred to the knee as “benign.” The Board questioned Dr. Bandera (not a surgeon) going against the opinions of two orthopedic surgeons, especially as Dr. Bandera did not evaluate the claimant until over 2 years had elapsed following the work accident.
The Board was also very critical of Dr. Bandera’s attempts to analogize claimant’s knee bruise diagnosis with patella subluxation and fracture diagnoses in the 5th Edition of the AMA Guides, as Dr. Piccioni testified credibly that these were not appropriate comparisons. The Board agreed with Dr. Piccioni that the 6th Edition of the Guides, which allowed for a zero rating for claimant’s specific diagnosis, even with continued credible subjective complaints, provided a much more fair and accurate representation of claimant’s true functional abilities in the knee.
Should you have any questions concerning this Decision, please contactGreg Skolnik, or any other attorney in Heckler & Frabizzio's Workers’ Compensation Department.
Darlene Cole v. State, IAB Hrg. No. 1463877 (Oct. 13, 2020).

WORKERS' COMPENSATION LAW
Me Thinks He Talked Too Much
Despite four compensable lumbar surgeries following a 2016 work accident, Claimant had not returned to work in any capacity and filed a Petition for a fifth lumbar surgery. Claimant’s expert, Dr. Zaslavsky testified that the surgery was needed to address adjacent segment disease that was causing progressively debilitating and severe functional problems.
Unfortunately for Claimant, the Board denied the Petition. In addition to citing Dr. Fedder’s defense expert testimony that claimant’s complaints were without any correlation to physical examination findings, the Board also noted that claimant’s physical therapy notes completely contradicted the allegation of significant functional deficits during the timeframe the claimant was considering surgery.
Specifically, physical therapy notes documented the claimant’s histories of being attacked by a dog, run over by a vehicle while doing mechanical work, turkey hunting, army crawling while turkey hunting, shooting and killing a turkey while hunting, plans to begin weightlifting, and consideration of pursuing martial arts classes while, at the same time, the claimant was engaging in hiking, camping, and fishing activities. Claimant also told his therapist that he was only undergoing the fifth surgery so that he would not lose his workers’ compensation benefits.
Should you have any questions concerning this Decision, please contact Greg Skolnik, or any attorney in our Workers’ Compensation Department.
Michael Padgett v. R & F Metals, Inc., IAB Hrg. No 1450795 (Oct. 28, 2020).


Claimant was involved in a compensable work accident with multiple alleged injuries. At a prior Hearing in 2017, the claimant alleged ongoing injury to the head and neck, while seeking payment of surgery and other benefits related to same. The Board agreed with the Employer’s experts and found that any injuries to the head and neck had long since resolved. While the surgeries at issue were denied on technical grounds, they would still not be compensable due to the finding of resolution.
Claimant then filed Petitions seeking permanent impairment to the head and neck, as well as disfigurement to the neck related to one of the surgeries that had previously been denied. The Employer filed a Motion to Dismiss, citing to Christiana Care Health Services v. Davis, 127 A.3d 391 (Del. 2015), which affirmed a dismissal on similar grounds, as entitlement to benefits ends once a work-related injury has resolved. At the Legal Hearing, claimant argued that the recent Delaware Supreme Court case of Washington v. Delaware Transit Corp., 226 A.3d 202 (Del. 2020), stood for the proposition that the Board cannot dismiss permanency/disfigurement when those issues were not raised at the prior Hearing. 
The Board rejected the claimant’s arguments and found in favor of the Employer. The Board distinguished Washington as involving different circumstances; specifically, Washington involved a finding in a Termination Petition that the claimant could return to work as the basis for dismissing a subsequent permanent impairment claim. By way of contrast, the prior Petition in this matter involved questions of whether there were ongoing, compensable injuries to the head and neck. As the Board found there were not, the claimant lost all entitlement to subsequent benefits for those body parts. According to the Board, “Once the Board finds that a compensable injury resulting from a work accident either does not exist or has subsequently resolved, there simply can be no further entitlement to benefits with respect to that claimed injury.” Therefore, claimant’s Petitions were dismissed.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
Rebecca Clark v. State of Delaware, IAB No. 1393189, July 30, 2020.

Claimant filed a Petition alleging a 9/10/19 injury to the right wrist, elbow, and shoulder, ongoing total disability following approximately 4 weeks of modified duty work, and seeking payment for all associated medical treatment expenses, including pre-authorization of surgeries that had been recommended for all three body parts. The Board found that claimant failed to prove that any injury was causally related to his work activities. The testimony and evidence were inconsistent, and that detracted from claimant’s credibility and the strength of his case in general.

The Board was critical of claimant’s attempts to downplay his right arm symptoms associated with an earlier workers’ compensation injury. He first testified that all his problems resolved quickly, but then changed his story and admitted that following the accident he treated for years with high dose narcotic medications. He denied previously requiring any right shoulder treatment for the earlier accident, a statement contradicted by many of his own records. The Board also commented that the claimant’s story, as told to the defense medical expert in 2020, Dr. Crain, that the earlier records must have been for treatment for another claimant with the same name, detracted from his credibility, especially since the records contained the identical name, birth date, and many other facts indicating that the treatment was clearly rendered to the same individual. Claimant also omitted facts about his pre-existing condition from his pre-employment physical. On cross examination, he claimed he could not even recall appearing before the Board for two prior merit Hearings associated with his earlier claim.

The Board also discussed an alleged “journal” of the events that claimant had submitted to the Board at Hearing. The primary purpose of the journal was to rebut allegations by the Employer of a gap in treatment for the shoulder, as the journal contained numerous entries allegedly contemporaneous to the work event stating that claimant had reported shoulder pain. The Board questioned the veracity of the journal overall as many of the events in the journal were directly contradicted by his own records from multiple different care providers, as well as the employer’s records and witnesses’ testimony.

The Board even discussed claimant’s testimony that multiple providers treated him unprofessionally, including a physician affiliated with the employer. The Board found it highly unlikely that numerous providers would treat claimant unprofessionally or cause him to report his history inaccurately.

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

WORKERS' COMPENSATION LAW:
 Should Have Hired Landscapers: Activities During Gap In Treatment Doom Causation Arguments
Claimant was injured in a compensable work accident in 2013 involving the low back and multiple other bodily injuries. In 2019, Claimant filed a Petition seeking payment of low back medical treatment with Dr. Zaslavsky.

The Board found Claimant’s evidence inconsistent and insufficient to support a finding on causation. The Board noted a 5-year gap in lumbar treatment, during which time the claimant had treated for knee and upper extremity symptoms, with two different physicians, with neither physician noting back problems. Claimant alleged that both providers must have recorded her history incorrectly as she consistently reported 9-10/10 low back pain during that 5-year time period. The Board found this “highly unlikely.” The Board further felt Claimant’s ability to do yard work and physical activities as discovered by surveillance investigations and, admitted to by the claimant on cross examination, were inconsistent with her allegations of intense low back pain and significantly detracted from her credibility. Even Dr. Zaslavsky had to concede that if claimant’s history was not accurate, that could change his opinion on causation.

Should you have any questions concerning this decision, please contact Heckler & Frabizzio 302-573-4800.

Patricia Smallwood v. State of Delaware, IAB Hrg. No. 1406424 (Feb. 26, 2020).


Claimant was involved in an accepted 8/13/2015 work accident involving a lumbar injury, with limited medical benefits paid through treatment cessation on 7/20/17. Claimant resumed treatment in October 2018, which was denied as not causally related to the work accident.

In an IAB Decision on Claimant’s petition for benefits, the Board found that Claimant sustained only a resolved lumbar strain/sprain injury in the work accident, which returned to her pre-existing baseline condition by 7/20/17, accepting the opinion of Defense Expert, Dr. Gelman, over that of Claimant’s treating physician, Dr. Bakst. The evidence established that Claimant’s low back and left leg were chronically symptomatic dating back to a 1998 non-work-related automobile accident. Even though, the Claimant suggested that she had no back problems from 2000 until the 2015 work event, her medical records suggested otherwise with additional employment record evidence of periodic work absences due to back pain in the same time frame. Her condition at the time of the 7/20/17 treatment discharge was similar to her pre-injury, baseline condition. Her own physician’s physical examination at that time was benign with low pain scores and she did not return to treatment for 15 months. The Board also rejected Claimant’ s testimony that the reason for the treatment gap was due to personal issues finding that the Claimant was able to treat for other non-work-related medical conditions during the 15-month gap. The Board further questioned whether Claimant’s October 2018 presentation was truly a “flare up” of the original work injury noting that although Claimant pointed to her right sided MRI findings as evidence of a structural disc injury, Claimant’s lower extremity complaints were consistently left sided before and after the work injury. The Board went on to accept Dr. Gelman’s testimony that it is well established that the side where the herniation and compression are displayed on MRI correlates with which side leg symptoms will present.

Should you have any questions concerning this Decision, please contact our Firm Heckler & Frabizzio at 302-573-4800www.hfddel.com

Michelle Westbrook v. Walgreens, IAB Hrg. No. 1432077 (May 11, 2020).

Claimant was involved in a work-related injury to her low back in 2008, and for the next five years, she received low back treatment – including injections – paid for by the State of Delaware.  She then stopped treating for her low back for a few years, until she returned for more injections and ultimately underwent a lumbar fusion surgery from L4-S1.  Drs. Eskander and Cucuzzella both testified on behalf of the claimant that the return to treatment and the surgery were part of the progression of the low back injury from 2008.  However, Drs. Rushton and Meyers testified on behalf of the State of Delaware that the 2008 accident had involved a temporary aggravation of her low back condition that then resolved.  Citing to the progression of findings on the imaging studies, including entirely new findings of spondylolisthesis for the first time in 2015, Dr. Meyers and Dr. Rushton agreed these findings could not be attributable to a single event from nearly a decade earlier.

The Industrial Accident Board found claimant did not meet her burden to prove that the medical treatment since 2017, to include the 2019 lumbar fusion surgery, was causally related to the work accident.  The Board accepted the testimony that the frequent imaging studies showed a natural progression of degenerative lumbar disease, which was wholly consistent with the claimant’s age and gender, and which the experts testified could occur without any trauma.  One critical finding was the appearance of spondylolisthesis in 2015, seven years after the work accident; because that was a primary component of Dr. Eskander’s rationale for surgery, the Board agreed that it could not link a finding so distant in time back to the work accident.

Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.www.hfddel.com 302-573-4800

Linda Callahan Terry v. State of Delaware, IAB No. 1473826, April 29, 2020.