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

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.

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