Case Law » Workers' Compensation Law
Workers' Compensation
Avila-Hernandez v. Timber Products, Palomino v. Christiana Care Health Services, Munoz v. Berger Brothers, Del. Super., C.A. No. N10A-06-002 (Consolidated), J. Streett, (January 6, 2012) (Memorandum Opinion)
Claimants, Avila-Hernandez, Palomino and Munoz, consolidated their cases and petitioned Superior Court for review of three orders of the Industrial Accident Board dismissing as untimely Claimants’ petitions appealing Utilization Review determinations. The Utilization Review determinations found medical services received by the Claimants for compensable work-related injuries to be non-certified or not in compliance with the Health Care Practice Guidelines. Claimants filed their petitions appealing the Utilization Review determinations after the 45-day time limit imposed by Workers’ Compensation Regulation 5.5.1, which was adopted by the Department of Labor on June 1, 2009. Upon motion of the Employers, Timber Products, Christiana Care Health Services and Berger Brothers, the Board dismissed the petitions as untimely.
On appeal, the Superior Court found that the Board’s dismissal of the petitions as untimely constituted legal error. The Court noted that an ambiguity exists in the Workers’ Compensation Act in that it contains a five year statute of limitations where payments of compensation have been made pursuant to an agreement, but also authorizes the Department of Labor to adopt a Utilization Review process for the prompt resolution of medical services issues. To that end, the Department of Labor adopted Regulation 5.5.1 which contains a 45-day time bar for contesting a Utilization Review determination, thereby significantly reducing the five-year statute of limitation for such claims. The Court held that Regulation 5.5.1 is invalid because it impermissibly alters the rights expressly contained in the statute of limitations. Since Regulation 5.5.1 is in direct contrast to the statute of limitations, and the General Assembly did not express any intent to change the statute of limitations by expediting resolution of medical expenses through Utilization Review, the Regulation cannot stand. Accordingly, the Board erred in relying on Regulation 5.5.1 in its decisions to dismiss Claimant’s petitions.
Eugene Watson v. Wal-Mart Associates, Del. Supr., C.A. No. 442, 2010, (October 21, 2011) (en Banc)
Claimant suffered a compensable work injury to his low back while working as a laborer, a freight loader, for Wal-Mart. Following surgery, which did not relieve his pain, Claimant’s treating physician and the defense medical expert agreed that Claimant could perform only sedentary to light duty work, with no lifting greater than 20 pounds. Employer filed a petition to terminate Claimant’s ongoing total disability benefits. The only issue before the Board was whether Claimant was a displaced worker.
Claimant presented evidence of a job search that he performed after Employer filed the petition to terminate. Claimant testified that he applied for 28 jobs, without success. Two potential employers responded to Claimant’s applications with letters indicating that they could not hire him due to his physical disability. Claimant received no other responses to his job applications. Claimant agreed that some of the potential jobs required lifting greater than his 20 pound restriction.
To rebut Claimant’s displaced worker claim, Employer presented a labor market survey and vocational testimony regarding nine jobs in the open labor market that were within Claimant’s physical limitations and vocational capabilities. According to Employer’s vocational expert, 12 of the 28 jobs for which Claimant had submitted applications were outside of his physical restrictions. Three of the remaining 16 jobs (all of which were identified in the labor market survey) had been filled by the time Claimant submitted his applications.
The Board found that Claimant had not met his burden of proving that he was a displaced worker because his job search was not adequate and he failed to demonstrate that he was denied employment because of his work injury. The Board based its conclusion on the fact that Claimant had not heard back from most of the potential employers; some of the jobs were not hiring; and other jobs were beyond his restrictions. In addition, the Board held that the labor market survey and vocational testimony refuted Claimant’s displaced worker claim by identifying jobs within Claimant’s physical restrictions that were available in the open labor market. Accordingly, the Board granted Employer’s petition to terminate and awarded partial disability benefits based on the labor market survey. The Superior Court affirmed.
On appeal, the Supreme Court reversed holding that the only conclusion that was supported by substantial evidence was that Claimant was a displaced worker. The Supreme Court held that the Board was required to accept the undisputed evidence that Claimant had applied for 28 jobs, including 6 jobs from the labor market survey, and the only two responses he received indicated that he could not be hired due to his disability. The Court also held that Employer’s failure to re-hire Claimant for a position within its many, large retail stores was strong evidence that he was a displaced worker. According to the Court, a small labor market survey indicating the possibility of available jobs, was not enough to overcome Employer’s failure to re-hire Claimant, let alone Claimant’s unsuccessful job search. It concluded that Employer had to demonstrate that appropriate jobs were actually available and that prospective employers would hire, not merely consider hiring, a person in Claimant’s position to rebut the displaced worker claim.
Elmer Godwin v. MCI Services, Inc., IAB Hearing No. 1143655 (September 26, 2011)
The claimant had an acknowledged work injury to his left knee, which progressed into CRPS or RSD of the left lower extremity. He previously received benefits for a 35% permanency to the left lower extremity. Claimant subsequently filed a Petition to Determine Additional Compensation Due seeking benefits for a 27.5% permanent impairment to the urinary system, 25% permanent impairment to his sexual system, and a 25% permanent impairment to his rectal system, as rated by Dr. Jeffrey Meyers. Claimant testified that he experiences pain into his legs with urination, sexual activity and bowel movements. In rating permanent impairment, Dr. Meyers likened claimant’s subjective pain complaints during those activities to sensory abnormalities. However, the Board accepted the opinion of the defense medical doctor, Dr. John Townsend, that claimant has no mechanical abnormality or functional problems with any of the systems that would warrant a rating above and beyond the 35% permanency to the left lower extremity, for which he was already compensated. Therefore, the Board held that claimant had not met his burden of demonstrating any permanent impairment to the claimed systems.
Patricia Boone v. SYAB Services, IAB Hearing No. 1198151, (October 5, 2011) (Order)
Claimant has a compensable low back injury for which she continues to undergo medical treatment and use prescription medications. Employer filed a motion to compel Claimant to obtain her prescription medications through Express Scripts, a prescription medication plan that would allow Claimant to have her current prescriptions filled at any pharmacy or by mail-order, but would be much less expensive. Claimant was obtaining her medications from Dr. Ganesh Balu’s office. Claimant argued that Dr. Balu’s office was appropriately charging the Delaware Fee Schedule rates for her medications, even though the rates are higher than those charged by Express Scripts. Further, Claimant argued that Employer cannot direct Claimant’s method or means of obtaining the medications. The Board held that, pursuant to 19 Del. C. § 2322(a), Employer is required to furnish reasonable medications, which it is doing through Express Scripts. Subsection (b) of § 2322, which allows the Claimant to obtain the medications and seek reimbursement from Employer, if Employer has refused to make the medications available, is not applicable under these circumstances. Finally, 19 Del. C. § 2323, which allows an employee to select a medical provider of their own choosing to treat her work injury, does not address prescription medications or pharmacies. Further, it is not applicable since Express Scripts allows Claimant to obtain the medications from any pharmacy or have them delivered directly to her home.
State of Delaware v. Dawn Sturgeon, Del. Super., C.A. No. N10A-09-016, Slights, J. (June 9, 2011), 2011 WL 2416306
Employer filed a Petition to Terminate Claimant's ongoing total disability benefits which she had been receiving since September 2008, due to a recurrence of her initial 2005 low back injury. Employer presented testimony from its defense medical expert, Dr. Samuel Matz, indicating that Claimant was capable of returning to work with sedentary restrictions, so long as she could take breaks while working. Employer also presented a Labor Market Survey and vocational testimony identifying potential jobs available to Claimant within the restrictions recommended by Dr. Matz. Claimant testified that she did not believe she could work due to ongoing pain and side effects to her pain medications. Claimant did not present any expert medical testimony.
The Industrial Accident Board denied Employer's Petition to Terminate, holding that Employer had not demonstrated a change in Claimant's condition or circumstances, since the September 2008 recurrence of total disability, that allowed her to return to work in some capacity. Employer appealed the IAB Decision to Superior Court arguing that the Board committed legal error when it applied the "change of condition" standard set forth in 19 Del. C. §2347, regarding modifications of a prior award. Employer argued that the appropriate standard when considering a cessation of disability benefits, pursuant to Brokenbaugh v. Chrysler Corp., 460 A.2d 551 (Del. Super. 1983), is whether the claimant is no longer entitled to receive the compensation at issue. The Superior Court agreed with Employer, holding that when an employer petitions for a termination or cessation of benefits, evidence must be presented to demonstrate that the claimant is medically able to return to work and employment is available within his or her restrictions. In the instant case, the Superior Court held that the Board impermissibly required Employer to show a "change in condition" rather than to demonstrate that Claimant was no longer entitled to receive compensation. Accordingly, the decision was reversed and remanded.
Nicole Johnson v. Community Systems, Inc., IAB Hearing No. 1351297 (May 11, 2011)
Employer filed a Petition for Review seeking to terminate Claimant’s ongoing temporary total disability benefits. The parties’ medical experts were in agreement that Claimant was capable of working in a full-time, light duty capacity, since approximately one week after the accident. The doctors were also in agreement that Claimant could perform the jobs identified in a Labor Market Survey prepared by Employer’s vocational expert, which indicated that Claimant suffered no loss of earning capacity as a result of her work injury and work restrictions. Claimant argued, however, that she had a reasonable expectation that Employer would accommodate her work restrictions and she remained totally disabled pursuant to Hoey v. Chrysler, 1994 WL 149248 (Del. Super. Ct.).
Employer’s representative testified that it has a written employment policy whereby employees’ jobs are held for 26 weeks during an approved leave of absence. Following the work accident, Employer initially created a light duty position for Claimant. Claimant performed the specially created job for several weeks, before presenting a total disability note from one of her treating doctors. Several months later, Claimant indicated to Employer that she was completing physical therapy and would be released to full duty work in a few weeks. Thereafter, Employer unsuccessfully attempted to contact Claimant several times regarding returning to full duty work. Employer ultimately sent Claimant a termination letter, on three separate occasions, because she had been out of work longer than 26 weeks. All three termination letters were unclaimed by Claimant, although they were sent to the correct address.
Under the circumstances, the Board held that Employer had not “strung” Claimant along and she did not have a realistic expectation of continued employment with Employer. Therefore, it concluded that she was not a “Hoey” displaced worker. In so holding, the Board noted that Employer made its policies clear to Claimant both in writing, through an employment manual initially presented to her upon hire, and verbally. Claimant failed to contact Employer regarding returning to work after indicating to Employer that she anticipated a full duty release. Finally, the Board noted that Claimant refused to claim all three terminations letters, most likely because she knew the content of the letters based upon conversations with Employer and the general leave policy.
Walter West, Jr. v. Wal-Mart Stores, Inc., IAB Hearing No. 1305971 (January 12, 2011)
Claimant filed Petitions to Determine Additional Compensation Due appealing a Utilization Review decision for treatment allegedly related to an acknowledged, July 2007, low back injury. Although the Utilization Review decision was favorable to Employer, both Claimant’s and Employer’s expert witnesses agreed that the treatment at issue fell within the Health Care Practice Guidelines. Employer conceded that the medical bills at issue were reasonable and necessary. Employer intended to defend the Petitions on the ground that the treatment was not causally related to the work accident. Employer’s causation argument was premised upon a gap in medical treatment for over two years following the acknowledged work injury. Following opening statements, Claimant made a motion for summary judgment on the basis that Employer’s submission of the medical bills in question to Utilization Review constituted an acknowledgement of the causal relationship of the treatment to the work-related injury. The Board agreed that by submitting the medical expenses to Utilization Review, Employer waived its right to argue causal relationship. Further, since Employer had conceded reasonableness and necessity to the expenses, summary judgment was granted in Claimant’s favor.
Cordero v. Gulfstream Development Corp., et. al., IAB Hearing Nos. 1357959 and 1357671 (February 10, 2011) (Order)
Claimant filed Petitions to Determine Compensation Due against Delaware Siding Company and Gulfstream Development Corporation alleging a construction site work injury on July 31, 2008. At the time of the alleged accident, Claimant was working for Rodriguez Contracting, a subcontractor of Delaware Siding, which was a subcontractor of Gulfstream, the general contractor at the construction site. Delaware Siding obtained a Certificate of Insurance from Rodriguez with an effective date of September 1, 2007 and expiration date of September 1, 2008. However, without any notice to Delaware Siding, the policy was cancelled on March 13, 2008 and Rodriguez was uninsured at the time of the alleged accident.
Delaware Siding and Gulfstream filed motions to dismiss the petitions. Delaware Siding argued that it complied with 19 Del. C. § 2311(a)(5) by obtaining the Certificate of Insurance from Rodriguez and was, therefore, not deemed to insure any workers' compensation claims under the Act. Gulfstream argued that it had no contractual relationship with Rodriguez and had satisfied its obligation under Section 2311(a)(5) by obtaining a valid Certificate of Insurance from Delaware Siding. The Board dismissed the petitions against Delaware Siding and Gulfstream holding that both entities had complied with the statutory requirements set forth in Section 2311(a)(5). The Board held that Section 2311(a)(5) does not create an affirmative duty to assure that a Certificate of Insurance provided by the subcontracting entity, which has appropriate effective dates on its face, continues to remain in effect.
Rhodes v. Diamond State Port Corp., Del. Supr., C.A. No. 09A-04-005, Steele, C.J., Jacobs, J., Ridgely, J. (July 29, 2010), 2010 WL 2977331
This was an appeal from a decision of the Superior Court affirming denial by the Industrial Accident Board of William Rhodes’ Petition to Determine Compensation Due alleging lung cancer as a result of asbestos exposure while working for Diamond State Port Corp. (""DSPC"). Rhodes argued that the Superior Court erred in affirming the IAB’s decision because the Board abused its discretion by ignoring or misconstruing relevant and uncontroverted evidence that there was friable asbestos at Mr. Rhodes’ worksite. Further, Mr. Rhodes argued that the Board misapplied or failed to apply the “last injurious exposure” rule. The Supreme Court found no merit to either argument and affirmed.
Specifically, the Supreme Court held that there was “the minimum quantum of evidence required” for the Board to hold that Mr. Rhodes failed to meet his burden of proving asbestos exposure while working for DSPC. Further, the Board articulated a reasonable basis for its acceptance of the testimony of Dr. Albert Rizzo that Mr. Rhodes’ lung disease was caused by cigarette smoking alone. Finally, the Supreme Court agreed that the “last injurious exposure rule” did not apply because Rhodes failed to prove any injurious exposure while working for DSPC.
Simms v. State of Delaware, IAB Hearing No. 1340237 (March 22, 2010)
Claimant filed a Petition to Determine Compensation Due alleging that she aggravated a pre-existing back condition when she fainted and fell in the bathroom while working as a custodian for the Appoquinimink School District. Claimant testified that the bathroom was very hot, due to a lack of air conditioning, and she was constipated and in a great deal of pain. She started sweating profusely while using the toilet. When she walked to the sink to splash her face with water, she fainted and fell. There was conflicting evidence regarding the temperature of the bathroom and the circumstances surrounding Claimant’s fall.
Dr. Swaminathan testified on behalf of Claimant that the syncopal episode was due to the heat. Dr. Fink testified that Claimant had defecation syncope, which caused her blood pressure to drop while straining to have the bowel movement and the fainting incident had no causal relationship to the workplace. The Board accepted Dr. Fink’s testimony over Dr. Swaminathan’s opinion and held that Claimant did not meet her burden of proving a compensable injury. The Board concluded that fall was caused by an unrelated medical condition, not related to or triggered by her employment.
Johnson v. JP Morgan Chase, IAB Hearing No. 1343786 (September 29, 2010)
Claimant filed a Petition to Determine Compensation Due alleging that she injured her low back and right lower extremity while working for JP Morgan Chase. Employer initially opposed the Petition. However, after a defense medical examination, it accepted compensability of injuries to Claimant’s low back and right ankle. The parties continued to dispute the length of disability that resulted from the injury and payment of certain medical expenses for treatment with Dr. Bruce Grossinger based on the opinions offered by their respective medical witnesses.
Employer submitted the disputed medical expenses incurred after the date it accepted compensability to Utilization Review, but argued that the expenses incurred prior to that date should be considered under the “old” process, whereby the Board determines whether the treatment is reasonable and necessary based on testimony presented at a hearing. The Board disagreed and held that since the disputed bills were for treatment incurred after May 23, 2008 and they were related to the acknowledged injury to the lumbar spine, the bills were subject to the Utilization Review process. Employer was given 15 days from the date of the Board’s Decision to submit the bills to Utilization Review or pay the bills in accordance with the applicable fee schedule.
Connelly v. Presbyterian Homes, Inc., IAB Hearing No. 1289709 (June 11, 2010)
Claimant filed a Petition to Determine Compensation Due alleging that she injured her low back in a work-related accident on July 7, 2006. She sought reimbursement for two surgical procedures, replacement of her spinal cord stimulator in 2007 and lumbar fusion surgery performed by Dr. Bruce Rudin in 2009. Employer agreed that a work accident occurred on July 7, 2006 resulting in a lumbar strain, but only paid limited medical expenses related to that injury. Employer denied that the surgical procedures in 2007 and 2009 were causally related to the work accident or injury. Claimant had an injury to her lumbar spine in 1995, a disc herniation at L4-5, for which she previously underwent surgery in 1996 and 1998. In 2003, a spinal cord stimulator was initially implanted.
The Board denied Claimant’s Petition holding that she did not meet her burden of proving that the replacement spinal cord implant in 2007, or the fusion surgery in 2009, were causally related to the work accident on July 7, 2006. The Board found the testimony of Employer’s medical expert, Dr. Lawrence Piccioni, persuasive that Claimant’s lumbar sprain injury had essentially resolved and she had returned to her baseline condition by the time that he examined her six weeks after the July 2006 accident. Further, the Board found the testimony of Dr. Matthew Eppley persuasive that the fusion surgery in 2009 was not causally related to the 2006 work accident because there was a long gap, approximately two years, between the work accident and Dr. Rudin’s surgical recommendation. Further, there was a seven month gap in treatment between Claimant’s visit to Dr. Piccioni and Claimant’s next treatment at Occupational Health in March 2007. Finally, since the 2009 surgery addressed a non-union at the same level where fusion was previously attempted, the Board found Dr. Eppley’s testimony persuasive that the need for surgery in 2009 was more likely Claimant’s failed back syndrome.
