Advertising Disclosure Email Disclosure

Board's decision terminating total disability compensation is affirmed on appeal. Court also rejects claim for an attorney's fee and medical witness fee by claimant's counsel.

April 1, 2010
William Porter v. Daisy Construction Co., DE Superior Ct. (C.A. No. S09A-07-001-RFS, decided 1/14/10)

The claimant sustained a compensable right wrist injury in March 2006 while throwing a piece of black top. His medical treatment required four surgeries. The employer filed a termination petition in November 2008, and the Board granted it as of the hearing date and instructed the employer to repay the Fund the benefits they had paid to the claimant while the petition was pending. The employer's evidence found credible by the Board consisted of medical testimony that the claimant could do full-time, light-duty work and vocational testimony as to a Labor Market Survey on seven jobs that would pay the claimant more than his average weekly wage. The testimony of the claimant's medical expert, which was rejected as not credible, indicated that the claimant was on no work status until a fifth surgery took place. On the claimant's appeal, the court affirmed the Board's finding that the claimant could perform light-duty work even though he had another surgery scheduled. The claimant's counsel also argued for an attorney's fee and a medical witness fee on the basis that the claimant received the benefit through the litigation of not having the termination granted until the hearing date as opposed to the filing date. The court rejected this argument and reasoned that there was no benefit or award to the claimant in the Board's decision, as is required for these items to be owing, and that repayment to the Fund by the employer is not a benefit to the claimant but rather to the Fund.

Case Law Alert - 2nd Qtr 2010

Affiliated Attorney

Paul V. Tatlow
Shareholder
(302) 552-4035
pvtatlow@mdwcg.com

Practice Areas

Before you send this email please note:

You are attempting to send email, through a link on our website, to an attorney of Marshall Dennehey Warner Coleman & Goggin or an employee in our firm. Please note that your email may not be treated as confidential and does not create an attorney-client relationship. You should not rely upon the transmission of an email through this website if you are seeking to enter into such a relationship. Until such time as we have agreed to represent you, no information in your email will be treated as confidential. Please contact us directly by telephone at 1.800.220.3308 if it is your intent to seek legal counsel with our firm or convey confidential information.

If it is still your intent to send this email, knowing that it may not be treated as confidential, you may accept our terms of agreement by pressing "OK". If you choose not to accept these terms of agreement you may navigate away from this page by pressing "Cancel."