TOP 10 DEVELOPMENTS IN DELAWARE WORKERS’ COMPENSATION IN 2021
1. The Board’s decision denying a DCD Petition alleging that the claimant developed COVID-19 due to work exposure is currently pending before the Superior Court.
Carl Fowler v. Perdue, Inc., IAB Hearing No. 1501167, Decided Dec. 31, 2020)
This was the first case heard by the Board alleging that a claimant had developed COVID-19 due to work exposure and that it qualified as an occupational disease. The parties stipulated that the claimant did have COVID-19, but the employer disputed that it was compensable. Both medical experts testified that the claimant did have COVID-19, and the employer’s expert actually testified that, in his opinion, the claimant had acquired COVID-19 from the work environment and most likely during cafeteria exposure, where he was at lunch with many other employees. The Board assessed the case as being incredibly fact intensive and rejected the claimant’s testimony as not being credible since there were a number of inconsistencies. As a consequence, the Board concluded that the history provided to the employer’s expert was not accurate or reliable regarding the self-isolation the claimant claimed to have done. As to the claimant’s medical expert, he had conceded that he needed further information to give an opinion within a reasonable degree of probability on the causation issue. The Board held that the claimant had not met the burden of showing it was more likely than not that he was exposed to COVID-19 at his place of employment. Since the claimant did not meet this burden of proof, the Board indicated that they need not address the question of whether COVID-19 constituted an occupational disease. This case is currently before the Delaware Superior Court on the claimant’s appeal. Oral argument is scheduled to take place in December.
2. Section 2330 of the Act was amended to provide the increased compensation benefits for the surviving spouse of a deceased employee who suffered a compensable death.
Senate Bill No. 123 was signed into law by Governor Carney on September 30, 2021. This law amends Section 2330 of the Act, entitled “Compensation for Death.” Specifically, it provides that if a surviving spouse remarries, their benefits must be reduced to 90% of the original benefit for the first 10 years after remarrying and must then be reduced to 75% of the original benefit thereafter until the death of the surviving spouse. The prior law had provided that if a surviving spouse should remarry, the compensation would cease with the proviso that two years of indemnity benefits would be payable in a lump sum.
3. The Fund began taking aggressive positions in seeking reimbursement for the compensation that it has paid during the pendency of a termination petition.
Marvin Velazquez v. Mario Malone Enterprises, LLC., IAB Hearing No. 1499984, Decided Jun. 17, 2021
The employer filed a termination petition alleging that the “claimant returned to work” and, based on that allegation, the Fund did not initiate TTD payments pursuant to Section 2347 of the Act. Later, the employer notified the Board that there was a clerical error and its petition should have alleged that “claimant is physically able to return to work” and that it was not aware of any actual return to work by the claimant. Based on that update, the Fund initiated the payment of TTD benefits as of the date it was notified of the amendment.
This resulted in a gap where the claimant did not receive compensation for TTD from the filing date of the petition up until the amendment date. The case came before the Board on a legal motion filed by the claimant seeking that compensation. The employer argued that the Fund was clearly required to pay that compensation pursuant to Section 2347. The Board rejected that argument and reasoned the employer had made a clerical error in its filing and yet contended that it should be held blameless from the consequences of that error. The Board held that the employer was the party solely responsible for paying the claimant compensation for TTD during the gap period.
Overall, this year new counsel for the Fund has taken very aggressive positions in entering their appearance on termination petitions involving insured employers and seeking reimbursement of the TTD paid by the Fund where the petition is either settled or withdrawn prior to the hearing.
4. Board resumed doing live in-person hearings in late Summer of 2021.
Back on May 18, 2020, the Board issued an order during the COVID-19 pandemic providing that hearings would begin taking place by video through the WebEx platform. Late in the summer of 2021, after more than a year, the Board resumed live, in-person hearings subject to numerous guidelines. The safeguards include the wearing of masks and maintaining social distancing. Further, upon entry to the Department of Labor, temperature readings of all persons are taken and evaluated. The hearing rooms themselves have Plexiglass partitions separating the attorneys from each other and from the Board members.
5. After a marathon hearing that took three full days, the Board issues its longest decision ever, containing 187 pages.
Richard Seeney v. Marvel Construction, IAB Hearing No. 1504254, Decided Jul. 20, 2021)
This case involved multiple petitions filed on behalf of the claimant in a case where the claimant had sustained his work injury over 50 years ago—October 3, 1969—and the injuries included paralysis from the T-12 vertebra down. The defenses raised by the employer included latches, which is an unreasonable delay in pursuing a legal remedy, as well as waiver and estoppel, but the Board rejected all of them. The case was litigated by way of a video hearing over the course of three full days before a three-member Board panel in order to eliminate the risk of a tie. The highlights of the Board’s lengthy decision in favor of the claimant included the award for several permanencies not typically seen and also the awarding of four separate counsel fees in the maximum amount of $11,969.40, for a total counsel fee assessment of $47,877.60. The hearing and deliberations concluded on July 12, 2021, and the Board rendered its 187-page decision eight days later on July 20, 2021.
6. New workers’ compensation rates.
The Department of Labor announced that the new workers’ compensation rates effective July 1, 2021, establish an average weekly wage of $1,196.94. Accordingly, the maximum weekly compensation rate is $797.96 and the minimum weekly compensation rate is $265.99.
7. Interesting statistics from the Department of Labor.
The 23d Annual Report from the Department of Labor gives updates that cover the year 2020. The number of certified medical providers has fluctuated, with their being 2,992 certified providers in 2019, but this decreased to 2,822 such providers in 2020. There are 39 areas of medical practice represented among the certified providers. The main reason for providers losing their certification is the failure to complete timely the biennial statutory mandated continuing education course.
In 2020, there were a total of 6,364 petitions filed, which was a slight decrease of about 8% from 2019. This was attributed to the unusual circumstances of the COVID pandemic throughout most of 2020. As far as hearings held by the Board, in 2019 there were 4,390 hearings, but in 2020 there was a decrease of 11% to 3,855. This decrease was attributed to the six-week period in which hearings were stopped with the onset of the COVID pandemic.
8. Update on the Utilization Review Process.
In 2019, the Office of Workers’ Compensation received 296 requests for Utilization Review to be performed. In 2020, there were only 225 requests for Utilization Review, a decrease of about 24%. In 2019, there were 165 petitions to appeal the Utilization Review Determinations filed, which was approximately 56% of the cases where UR had been requested. Most of those appeals were later withdrawn prior to a hearing taking place. In 2020, there were 140 petitions to appeal the Utilization Review Determinations filed, which was approximately 47% of the number of UR requests that had been made. Again, the majority of those petitions were withdrawn without the need for a hearing to take place. As in past years, chronic pain treatment and, in particular, pain medications continues to be the practice guideline most frequently challenged through the UR process.
9. Board denies the claimant’s DCD petition, based primarily on literature cited by the employer’s medical expert that typing and keyboard work do not increase the likelihood of developing carpal tunnel syndrome.
James Lewis v. State of Delaware, IAB Hearing No. 1481670, Decided Feb. 5, 2021)
This case involved a DCD Petition filed on behalf of the claimant alleging that he suffered bilateral carpal tunnel syndrome as a result of his cumulative repetitive duties as a teacher and specifically focusing on the fact that he did keyboarding work on a computer for three to four hours per day. Dr. Spellman, the employer’s expert, conceded that the claimant clearly had bilateral carpal tunnel syndrome. However, he disputed a causal relationship between the claimant’s work duties and that condition, relying on his own practice which involves treating a number of patients from beef packing plants. He also cited medical literature showing that there is a correlation between vigorous work activities and tool use, such as that done by a beef packer, and carpal tunnel syndrome. However, that medical literature shows that people such as the claimant who do keyboarding work do not have a higher incidence of carpal tunnel syndrome as compared to the general population. In denying the claimant’s petition, the Board accepted the opinions of Dr. Spellman as credible and was impressed with the medical literature he cited in support of the lack of causal relationship.
10. Appeals from Board decisions show that reversal rates continue to be extremely low.
The Annual Report from the Department of Labor gives the five-year cumulative summary of Appeals from Board decisions. For the five year period from 2016 through 2020, the Board rendered 1,724 decisions, and from that number, 208, which is just over 12%, were appealed. From those 208 appeals to the Superior Court, 52 of the decisions were affirmed, 94 were either dismissed or withdrawn, and 34 were pending at the time the report was compiled. Importantly, only 28 of those appeals were either reversed and/or remanded, which represents a reversal rate of about 1.62% of all the decisions rendered in those five years. Therefore, the lesson from these statistics is that it continues to be extremely difficult to overturn Board decisions on appeal, so full effort should be given to presenting a strong case and winning at the Board level.
What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.