New Code Section Changes Employer Response Obligation under the VA Workers’ Comp Act

In its February 2020 session, Virginia’s General Assembly made a change to the Virginia Workers’ Compensation Act. The following briefly summarizes the new amendment:

Under the new section 65.2-601.2, the employer will be required to provide a statement of intent in response to an employee’s claim within 30 days. When a claim is filed, the Commission will now order the employer, within 30 days of such order, to advise the employee whether the employer intends to (i) accept the employee’s claim, (ii) deny the employee’s claim, or (iii) if the employer lacks sufficient information from the employee or a third party to be able to accept or deny the claim.

If the employer intends to deny the claim, the response shall provide reasons for the denial, and if the employer is unable to accept or deny because of lack of sufficient information, the employer must identify the information needed from the employee or a third party to enable it to make such a determination.

Failure to make a timely response could result in a penalty.

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Authentication of Social Media Evidence

In this modern age—perhaps now more than ever —our population is using social media to connect with one another by sharing pictures, articles, and other various communications through social networking platforms such as Facebook©, Instagram©, and Twitter©.  As our society has continued its increasing use of social media, the issue has led to a growing topic in the legal landscape. Specifically, courts have grappled with the introduction of social media as evidence in litigation.

In a recent opinion, State of Maryland v. Hayes Sample, No. 54 September Term, 2019, the Court of Appeals of Maryland considered the standard for admitting social media evidence in a criminal case.  Hayes Sample was one of two individuals involved in an attempted armed robbery of a liquor store in Towson, Maryland.  Sample was charged with attempted armed robbery, first-degree assault, as well as various other handgun related charges.  Sample’s alleged accomplice, Claude Mayo, was shot and killed by the store owner in self-defense.  In its case against Sample, the state introduced evidence connecting Sample and Hayes through their Facebook© profiles, as well as evidence that Sample “unfriended” Mayo on Facebook© shortly after the crime and Mayo’s death.

The Circuit Court allowed the Facebook© records into evidence over the defense’s objections.  After the trial, the jury found Sample guilty of various charges, including attempted armed robbery and first-degree assault.  Sample appealed to the Court of Special Appeals, which reversed the Circuit Court and remanded the case back for a new trial.  The state then appealed to the Court of Appeals, which granted certiorari and reversed the decision of the Court of Special Appeals, affirming the Circuit Court decision to admit the Facebook© evidence.

Standard of Proof for Authentication of Social Media Evidence

In its analysis, the Court of Appeals noted the standard of proof to authenticate social media evidence is by a preponderance of the evidence under Md. Rule 5-901(b)(4).  There must be sufficient circumstantial evidence for a reasonable juror to find that it is more likely than not that the social media evidence is what it is purported to be.

The Facebook© profiles included in the social media records produced at trial included cities familiar to both suspects Sample and Mayo.  The username associated with one of the profiles was “SoLo Haze.”  Although not an exact match to the defendant’s name, the Court found it persuasive that Haze was a homophone of Sample’s first name.  Additionally, there were “friends” connected to the profiles who were associated with both Hayes and Sample.  Finally, the email address registered to the SoLo Haze profile was mrsample2015@gmail.com, which clearly included Samples’ last name.  Because the Facebook© profile in question contained sufficient distinctive characteristics linking it to Sample, the Court determined the trial court had properly held a reasonable juror could find that it was, in fact, Sample’s profile.  The Court further reasoned the evidence showing Sample owned the profile constituted strong evidence in itself that he was responsible for the action of unfriending Mayo on Facebook©.  This apparent attempt to disassociate himself from Mayo after the crime was circumstantial evidence of Sample’s guilt.

Although Sample arose in a criminal law context, the evidentiary principles established apply equally to the authentication of social media in a civil context.  Thus, when seeking to authenticate social media evidence in a workers’ compensation claim, it is important to present proof upon which the finder of fact may rely to reasonably conclude that the social media evidence is what it is purported to be.  To this end, it may be a valuable pursuit for employers and insurers to seek to unearth additional background information related to a workers’ compensation claimant such as prior residences, nicknames, known associates, etc.  While at first, this information may not be directly relevant to the workers’ compensation claim, it could be a useful tool to authenticate social media evidence that does relate to the work accident or injury in question.

Written by associate Megan Berey.

Maryland Intermediate Appellate Court Examines Co-Employment

Maryland Intermediate Appellate Court Examines Co-Employment
Uninsured Employers’ Fund v. Tyson Farms, Inc., 2019 WL 6223915 (2019), Maryland Court of Special Appeals, No. 1057, SEPT.TERM, 2018

In Uninsured Employers’ Fund v. Tyson Farms, Inc., the Court of Special Appeals of Maryland considered the issue of simultaneous employment of a chicken farm manager. Mauro Garcia, the claimant, managed a chicken farm owned by Dai Nguyen. Pursuant to a contract with Mr. Nguyen, Tyson Farms, Inc. raised its chickens on the farm. Mr. Garcia was found to be occupationally disabled from hypersensitivity pneumonitis and interstitial disease as a result of his employment.

The claimant initially filed his claim for workers’ compensation benefits against Mr. Nguyen as his sole employer. As Mr. Nguyen did not have workers’ compensation insurance, the Uninsured Employers’ Fund became involved and subsequently brought Tyson into the claim as a co-employer. At a hearing, the commission declared both Mr. Nguyen and Tyson to be co-employers. Tyson appealed the commission’s findings to the Circuit Court for Worcester County. The court determined the issue was one for a jury, rather than a court. The jury found that Tyson was not a co-employer at the time of Mr. Garcia’s occupational disease. The Uninsured Employers’ Fund appealed. Judge Wright, writing for the Court of Special Appeals, reversed the decision made by the Circuit Court.

Although the primary issue in the case was whether the Circuit Court should have let the question of employment go to the jury, the opinion provides a constructive overview of the factors that may be considered in determining a co-employer/employee relationship. The factors include:

The power to select and hire the employee;
The payment of wages;
The power to discharge the employee;
Whether the work is part of the regular business of the employer; and
The power to control the employee’s conduct.
Although the other factors were taken into consideration, the court found the “control” factor to be the most important in establishing whether Tyson was a co-employer of Mr. Garcia. In this case, Tyson could oversee all aspects of the farm including verifying operations in compliance with their contract, establishing instructions and requirements for raising the flocks, sending Tyson’s employees to check on each flock of chickens, and evaluating the welfare of the flock. Specifically, concerning the claimant, Tyson had the authority to compel Mr. Garcia to work on the farm 24 hours a day, seven days a week, and to speak directly with Mr. Garcia regarding adjustments of any kind. Tyson also had the right to terminate the contract if Mr. Garcia did not comply with the terms. Based on these circumstances, the Court found that Tyson’s power to control Mr. Garcia’s day to day operations was enough to establish the company as a co-employer and reversed the decision of the Circuit Court.

For more information about this article, please contact Megan Berey at 410.230.1089 or mberey@fandpnet.com.

When Is the Letter to Your Medical Expert Discoverable in Delaware?

The attorney-client privilege allows for confidential communication between an attorney and his or her client.  A corollary privilege is the attorney work product doctrine.  The work product doctrine allows for an attorney to draft correspondence, make notes, record impressions, etc., in anticipation of litigation without such materials then becoming available to an opposing party or counsel by demand.  In Delaware, an instructional letter drafted by an attorney and sent to an expert in advance of a Defense Medical Evaluation is typically considered attorney work product and not subject to discovery.  However, there are cases in which the Delaware Industrial Accident Board allows for the discovery of such correspondence at the request of opposing counsel.

In Peter M. Sisofo v. United Parcel Service, No. 977588 (Del. I.A.B., Mar. 3, 1993), the claimant sought to obtain a copy of the employer’s instructional letter to the employer’s medical expert.  The board ruled that the expert’s report could not be “fully understood” without the employer’s letter and ordered that it be produced.  The employer conceded that the claimant could have the letter but wished to withhold it until the expert’s deposition.  Since this decision, claimants’ attorneys have routinely cited to Sisofo in their Requests for Production to ask for all correspondence sent by defense counsel to their experts.

In Christopher Moore v. Amazon, No. 1427678 (Del. I.A.B., Dec. 12, 2018), the employer’s medical expert issued a report on causation.  The employer then sent the expert additional records and requested an updated opinion.  The expert changed his opinion after reviewing the letter and updated records.  The claimant requested a copy of the letter sent to the expert to investigate what caused the expert to change his opinion.

The board determined the letter had been drafted in anticipation of litigation; therefore, it was attorney work product.  However, the board explained this privilege is a qualified immunity and the letter may be producible if the claimant could demonstrate: 1) there was a substantial need for the letter; and 2) the claimant could not obtain the substantial equivalent of the letter by other means without undue hardship.  The board found the sole purpose of the discovery request was to uncover what evidence changed the expert’s opinion.  The board ruled that such evidence was in the expert’s report – the newly reviewed medical records – and so the claimant did not need the letter itself.  The board did note that to the extent “the letter might contain strategizing or legal theories . . . that sort of information is protected as work product and is not producible nor admissible as evidence.”  The board denied the claimant’s request to introduce the letter.

The lessons that defense counsel and their clients can learn from these cases is to ensure instructional letters provide a map of what information and evidence we (defense counsel) consider relevant to lead the expert where to look but not be the only source of information.  We may include generalized impressions and theories in the letter (e.g., the injury appears out of proportion with the mechanism of injury or this injury may be a recurrence of symptoms from a prior accident) as such writings should be privileged.  However, we should be aware that the letter may ultimately be producible and take caution not to include anything in the letter we wish to keep private.  We should also make certain our experts answer the questions asked.  This can be accomplished by listing our questions clearly and coherently and asking for revised reports when necessary.  Lastly, we should not concede to all discovery requests as doing so may waive a privilege we later seek to raise.

For more information about this article, please contact Robert S. Hunt, Jr. at 302.594.9780 or rhunt@fandpnet.com.

Changes at the Maryland Workers’ Compensation Commission

Commissioner Godwin Retires

Commissioner Lauren Godwin, who served in her position since 1996, has retired from the Maryland Workers’ Compensation Commission effective July 1, 2019.

Welcoming Commissioner Oh

Effective July 1, 2019, Governor Hogan appointed Ju (Lynn) Y. Oh as a commissioner for the Maryland Workers’ Compensation Commission.

Ms. Oh received her Juris Doctor from the University of Baltimore School of Law in 2004.

Following law school, Ms. Oh served as a Judicial Law Clerk to the Honorable Thomas F. Stansfield from 2005 to 2006.  She then joined the law office of Humphreys, McLaughlin & McAleer, LLC as an Associate in 2006.  Ms. Oh became a partner at that firm in 2012, where she represented employers and insurers leading up to her Commission appointment.

Workers’ Comp Team Spotlight – Natalie Johnson and Mark Wright

Natalie Johnson attended college at American University where she majored in International Studies in the honors division. She also minored in French Language & Literature and took several courses in Art History. She graduated in 2007.

Following her early career in the banking industry, Natalie pursued her interest in the legal field and began working as a paralegal for an insurance defense firm in Baltimore, Maryland. Her work consisted of both workers’ compensation and liability defense. She continued with this firm for two years before joining Franklin & Prokopik as a workers’ compensation paralegal.

While working at F&P as a paralegal, Natalie attended the University of Maryland School of Law.  During this time, she served as the Honor Board representative for the evening division of her law school and served as a research assistant for one of her professors, where she primarily focused on family law research.

After graduating from law school in August 2017, Natalie left F&P temporarily to complete a judicial clerkship with Family Magistrate Theresa A. Furnari in the Circuit Court for Baltimore City. She served as a law clerk for Magistrate Furnari from August 2017 through August 2018. She returned to F&P as an associate attorney in September of 2018.

Natalie’s practice is focused in the area of Maryland workers’ compensation defense. She is also a certified mediator and has a certification to serve as a Child In Need of Assistance (C.I.N.A.) attorney.

When Natalie is not working, she enjoys gardening, reading, and playing video games. She maintains a garden at home that has vegetables, herbs, and flowers. She also has several plants in her office that she cares for. When not pursuing her hobbies, Natalie loves spending time with her husband Ben, who is a Professor of Computer Science at UMBC, their two cats Tybalt and Jules, their dog Charlie, and their fresh-water fish.

Mark Wright is a paralegal at F&P, focusing in the area of Maryland workers’ compensation defense.  He began working for the firm in a support staff position in October of 2016.  While in this position he performed administrative duties, front desk work, mail room work, and stocking.  By January 2017, Mark was promoted to his current position.

Mark attended Stevenson University and majored in criminal justice with a minor in theatre. He graduated in 2016 with a bachelor’s degree. While in school, Mark was part of an improv group named “Hot Sauce Sandwich” from 2015 through 2016.

After graduating, Mark secured a temporary position with the Maryland Volunteer Lawyers Service. While working for this organization, he performed record-keeping duties, client management, and gathered contact information for various contributors and sponsors to provide regular updates to interested parties.

Mark likes the investigative aspect of his work and enjoys identifying inconsistencies in claimants’ statements. He also enjoys assisting the attorneys in formulating defense plans for each case.

Mark enjoys watching movies, reading books and comic books, and attending plays and improv shows. He is also taking classes to learn Spanish.

 

Delaware Case Law Update: What Transportation Expenses are Reimbursable?

Pursuant to 19 Del. C. § 2322 (g), a claimant is entitled to mileage reimbursement in an amount equal to the state-specified mileage allowance for travel relating to medical treatment.

In Failing v. Delaware, 2019 WL 1005850 (Del. Super. Ct. Feb. 25, 2019), the claimant sought reimbursement for travel expenses totaling $875.95.  The demand included $761.20 for mileage and $114.75 for tolls and parking.

The claimant argued the Workers’ Compensation Act implicitly allows for reimbursement of travel expenses beyond mileage for medical appointments.  She cited in support of her argument that reimbursement for travel to a Defense Medical Evaluation includes language of “reasonable traveling expenses” after the first examination and payment of board, lodging, and travel for vocational rehabilitation services that require a claimant to stay away from his/her residence.  In reading the act as a whole, the claimant advanced the theory that mileage reimbursement actually means all reasonable expenses incurred while traveling for medical treatment.

The Superior Court found Section 2322(g) only allows for reimbursement of mileage.   The court opined the references to “travel expenses” in other sections of the Workers’ Compensation Act did not apply to mileage reimbursement.  The court found additional travel expenses beyond mileage limited to employee-initiated activities; i.e., a Defense Medical Evaluation or vocational rehabilitation.  The court concluded that mileage reimbursement and travel expenses are not synonymous.

The important takeaway is that demand for medical mileage reimbursement should be carefully reviewed and reduced by any items other than mileage.  This case can and should be cited in response to any such demand as it is binding upon the Industrial Accident Board.  It should also be noted that mileage in Delaware is reimbursed at the state rate of $0.40 per mile rather than the current federal rate of $0.58.

For more information about this article, please contact Robert S. Hunt, Jr. at 302.594.9780 or rhunt@fandpnet.com.

 

Workers’ Compensation Settlements and Claimants’ Child Support Obligations

R.K. Grounds Care v. Wilson, 235 Md.App. 20 (2017)

What obligations child support statutes place on the employer and insurer is an evolving area of the law, but R.K. Grounds Care v. Wilson offers some protection.

In R. K. Grounds Care, the parties reached a settlement of the entire workers’ compensation claim, which was approved by the Workers’ Compensation Commission.  Eleven days after the approval of the settlement, the Carroll County Bureau of Support Enforcement filed a Notice of Child Support Lien in the Circuit Court and notified the employer and insurer of the lien that same day. The sum of the child support lien was more than the entirety of the workers’ compensation settlement. The employer and insurer timely paid the attorney’s fees and medical evaluation fee from the settlement to the claimant’s attorney and expert but held the entirety of the claimant’s funds. Once the employer and insurer were served with writs of garnishment from the Circuit Court, they issued payment (the entire amount of the claimant’s funds) to pay the child support lien. The claimant also received a copy of these writs of garnishment but did not file with the Circuit Court to contest the garnishment, instead opting to wait three months to file Issues with the commission for non-payment of the settlement.

After a hearing, the commission ordered that only 75% of the claimant’s funds should have been paid to satisfy the lien and if child support does not have any of those funds still in escrow, the employer and insurer were tasked with paying additional funds to the claimant so he would receive 25% of the total amount he was due. On appeal to the Circuit Court for Carroll County, the judgment was changed such that child support should only receive 25% of the total amount due and the employer and insurer should pay the 75% of the total funds to the claimant, even though the monies were already paid to satisfy his child support obligation.

The Court of Special Appeals ultimately determined the commission did not have jurisdiction to decide garnishment matters or child support liens, and therefore the decisions below must be overturned and remanded.  However, in reaching that decision, they did review the relevant statutes, discussed later in this article.  The court confirmed child support may be withheld from workers’ compensation benefits once a notice of lien for that child support is filed with the Circuit Court. The child support agency may then garnish property of the claimant. The parties disagreed as to whether they may garnish all, part, or none of the settlement and the court offered no guidance as to which interpretation was correct, stating simply “these arguments are well-thought-out and present difficult legal questions.”  Sidestepping that legal question, they explained that the claimant needed to contest the garnishment in the Circuit Court (the court with jurisdiction over garnishments), not at the commission. Having failed to contest the garnishment in the appropriate court within the appropriate time, the claimant could not put the employer and insurer in a position where they had already complied with a valid, uncontested order from the Circuit Court and would need to pay additional funds to the claimant.

Overall, R.K. Grounds Care helps to protect the employer and insurer from inconsistent court orders and places the burden on the claimant to contest any garnishments before the funds are applied to child support liens.

The Statutes at Play

Under Labor and & Employment Article § 9-732, money payable in connection with a workers’ compensation claim “may not be assigned, charged, or taken in attachment,” except as provided under Title 10 of the Family Law Articles. Under Family Law § 10-140 and § 10-141, unpaid child support (CS) due under an order constitutes a lien on all real and personal property of the claimant parent owing the support.

In order to enforce a CS lien, the Maryland Child Support Administration (CSA) files a notice of lien with the relevant Circuit Court.  Upon filing, the CS lien has the “full force and effect of a judgment lien.”  The OCSE must also file for garnishment per Maryland Rule § 2-645.  Upon filing, the Circuit Court clerk will issue a writ of garnishment. The writ of garnishment must be served upon the employer/insurer (garnishee), and a copy must be sent to the claimant at his/her last known address.

Under § 11-504 of the Courts and Judicial Proceedings Article, there is certain property exempt from the execution of a judgment.  In order to claim the exemption that only 25% of his/her net recovery should be attached, the claimant debtor must file a motion to release property within 30 days after service of the writ of garnishment.

The bottom line: if the claimant seeks – and is granted – the exemption at the Circuit Court, then the maximum amount that can be garnished from a workers’ compensation settlement is 25% of what the claimant nets.  If he/she does not seek/is not granted the exemption, then potentially all of the settlement monies payable to the claimant could go to satisfaction of the lien.

How Do the Employer/Insurer Comply? Settlement Considerations

When negotiating settlement of a workers’ compensation claim wherein the claimant has a CS support lien, consider the following:

  1. Call the local CSA, which is on a county-by-county basis, to get the updated lien information. See: http://dhs.maryland.gov/local-offices for more information.
  2. Remember: the lien is subject to the net recovery by the claimant from settlement. Therefore, you will deduct attorneys’ fees and costs as well as fees for IMEs/medical experts before assessing what will be subject to the lien.
  3. If the claimant has not filed anything with the relevant Circuit Court to exempt the funds from the workers’ compensation claim, then:
    1. If the claimant’s net recovery from the settlement is less than the lien, then the settlement monies are sent in partial satisfaction of the lien and the claimant recovers nothing.
    2. If the claimant’s net recovery from the settlement is more than the lien, then the lien is satisfied first, and the claimant is given the remainder of the settlement funds.
  4. If the claimant has the exemption from the Circuit Court, then here is the calculation.
    1. Settlement amount minus attorney fees and costs = net amount to the claimant.
    2. Net amount to claimant x 0.25 = total max allowed to pay toward CS lien.
    3. Net amount to claimant minus CS lien (up to max noted above) = amount payable to the claimant.
      1. Example
        1. At time of settlement approval, claimant’s CS lien is $1,555.82.
        2. Settlement is $5,000.00. Attorney fees and costs are $1,100.00. IME fee is $750.00.
        3. $5,000.00 – $1,100.00 – $750.00 = $3,150.00. This is the net amount to the claimant.
        4. $3,150.00 x 0.25 = $787.50. This is the maximum amount payable toward the CS lien.
        5. $3,150.00 – $787.50 (payable to OCSE for CS lien) = $2,362.50 to the claimant.

Additional Settlement Tips

The court in R.K. Grounds protected the employer and insurer from overpayment of a settlement by noting the affirmative duty of the claimant to contest the lien, but they need to be quick about it. The statutes allow a savvy claimant to recover 75% of their settlement funds simply by contesting the full garnishment in the Circuit Court.

Remember to include/look for waivers of rights against the employer/insurer with child support issues in settlement agreements.

Timing- if your notice of lien is new and/or unexpected, then hold everything for full 30 days from garnishment

For more information about this article, please contact April Kerns at (410) 230-2975 or (akerns@fandpnet.com) or Natalie Johnson at (410) 230-3614 or (njohnson@fandpnet.com).

Apportionment, Nature and Extent, and PPD Awards

James M. Lyles, Jr. v. Howard University Hospital and Sedgwick CMS, 200 A.3d 1244 (2019)

This case was litigated up to the D.C. Court of Appeals and is now on its way back down to the trial judge.  It is certain to be going back up to the D.C. Court of Appeals in the near future.

Claimant injured his right shoulder in 2013.   He had a prior right shoulder injury in 2011 while working for a different employer.  Claimant did file for workers’ compensation benefits for the 2011 injury and that claim settled.  For the 2013 injury, a hearing was held on nature and extent of the injury to the right shoulder.  The employer made three arguments:

  1. The shoulder is not part of the upper extremity for impairment purposes. This was the law before 2017 when the CRB decided that the shoulder was part of the arm;
  2. The ALJ did not explain the connection between the claimant’s physical impairment and the extent of the claimant’s disability and the claimant’s industrial capacity;
  3. Employer was entitled to apportionment for the claimant’s pre-existing condition based upon the statute and subsequent amendments. Alternatively, the claimants are limited to 104 weeks of compensation.

The ALJ disagreed with the employer and held that the claimant sustained a 37% impairment to the right upper extremity for the right shoulder injury, and the employer was responsible for this amount.  On appeal, the CRB also disagreed with the employer and affirmed the Compensation Order.  The employer then appealed to the D.C. Court of Appeals, who reversed and remanded the case.  In a January 31, 2019 decision, the Court of Appeals held as follows:

  1. As a matter of law, the shoulder is not part of the upper extremity for impairment purposes. The claimant can get an impairment award for the effects the shoulder injury has on the upper extremity but cannot get an impairment award because of the shoulder.
  2. The ALJ must explain the likely consequences, if any, that the physical impairment has on wage-earning capacity.  An award for impairment is meant to compensate for the effect the injury has on the claimant’s wage-earning capacity; it is not meant to compensate the claimant for the injury or for pain and suffering.  Unfortunately, the Court of Appeals also stated that the claimant does not need to present any evidence about the actual or likely effect of the loss on wages or employment prospects.
  3. Regarding apportionment, the matter was remanded to the CRB to analyze how repeal of the Special Fund affected the remainder of the statute pertaining to apportionment.

On remand, the CRB issued its decision on May 2, 2019.  After analyzing the statutes pertaining to apportionment and the Special Fund and considering that the city council’s objective was to contain workers’ compensation costs so that D.C. was more competitive with Maryland and Virginia, the CRB held that there is now apportionment in D.C. for PPD only.  It does not apply to TTD or TPD.  Therefore, in D.C., there is now “apportionment so that a subsequent employer’s liability for a PPD award is the amount by which the subsequent injury increased a claimant’s PPD.”  Lyles v. Howard University Hospital et al., CRB No. 17-036 (R), AHD No. 14-001A, OWC No. 705796 (May 2, 2019).

The practical effects are as follows:

  1. Until held otherwise, there is apportionment in D.C. for PPD claims. Obtaining information about a claimant’s prior injuries and/or conditions is necessary to try and reduce a PPD award.  Information about a claimant’s prior condition should be provided to IME doctors when obtaining an impairment rating.
  2. The shoulder is not part of the arm. While a claimant cannot get an award for impairment to the shoulder, a claimant can get (1) an award for wage loss, if any, for the shoulder injury; and (2) PPD to the upper extremity for any effects on the upper extremity.  Taking claimant’s deposition to determine the effects of a shoulder injury on the arm will also assist in determining PPD exposure.  IME doctors should provide specifics on any effects that the shoulder injury has had on the arm, including range of motion and grip strength.
  3. Because an impairment award is meant to compensate a claimant for the effect on wage-earning capacity, presenting evidence about a claimant’s hours, wage history, overtime work, as well as any extra-curricular activities (such as exercising, house maintenance, hobbies, etc.) can reduce an impairment award. Establishing that a claimant’s wage-earning capacity is not affected by an injury will be helpful to keep the impairment award low.

For more information about this article, please contact Naureen R. Weissman at 410.230.3579 or nweissman@fandpnet.com.

 

Delaware Case Law Update: Thirty Day Rule Offer

The Industrial Accident Board employs what is commonly referred to as a Thirty Day Rule.  In sum, the Thirty Day Rule requires all investigations be completed, witnesses identified, discovery exchanged, and settlement offer made thirty or more days from the hearing.  If the employer makes a settlement offer outside of the Thirty Day Rule that is equal or above the Board’s award, the claimant is not entitled to an attorney’s fee.

“The purposes of this rule are: (1) to encourage early settlement by employers before claimants’ attorneys must engage in substantial pre-hearing preparation, and (2) to prevent abuses by claimants’ attorneys, who do not accept valid settlement offers, and thereby force unnecessary Industrial Accident Board hearings.”[1]

In Teresa Holben v. Pepsi Bottling Ventures, the parties appeared before the Board on a dispute regarding the compensation rate for temporary partial disability benefits (“TPD”).  The Board agreed with the employer and awarded TPD based upon the average wage of the employer’s Labor Market Survey (“LMS”).  The employer made a Thirty Day Rule Offer for TPD that included a higher compensation rate than ultimately was awarded by the Board.  As such, the Board denied the claimant an attorney’s fee.  The Board ordered the employer to reimburse the claimant’s medical witness’ fees, as there was an award pursuant to 19 Del. C. § 2322(e).[2]

The claimant appealed the Board’s calculation of TPD and the decision not to award an attorney’s fee to the Superior Court.  The Superior Court affirmed the Board’s ruling on TPD but reversed and remanded the issue of an attorney’s fee to the Board.  The Superior Court concluded that the Thirty Day Rule Offer did not include an offer to pay medical witness’ fees, the claimant succeeded on the “issue” of recovering such fees, so an award of attorney’s fees was mandatory.[3]

The employer argued the triggering factor for attorney’s fees is the award of compensation; i.e. TPD.  The employer also noted the claimant had not incurred an expert’s fee until after the Thirty Day Rule Offer was sent and she had an opportunity to cancel her expert’s deposition without incurring a cancellation fee.

The Superior Court acknowledged “[t]here is reason to question, at some level, the right to recovery attorney’s fees as a cost simply because the claimant recovered a separate cost.”[4]  However, the Superior Court held the statute required an award of attorney’s fees.  The Superior Court also found the claimant was entitled to consider the settlement offer for a full 30 days and rejected the employer’s second argument.

The Superior Court’s Order is currently on appeal to the Delaware Supreme Court and raised concern in the Workers’ Compensation Bar.  The common practice of many attorneys in Delaware making a Thirty Day Rule Offer is not to include a medical witness’ fee.  However, if the claimant incurs a cancellation fee in conjunction with accepting the employer’s offer, those fees are generally reimbursed by the employer.  The Superior Court’s Order requires settlement offers to now include an offer for medical witness’ fees in order to avoid an award of attorney’s fees.  Pending a reversal of this Order, it is recommended that settlement offers now include an offer to pay the claimant’s expert’s cancellation fees incurred in conjunction with acceptance of a settlement offer.

 _______________________

For more information about this article, please contact Robert S. Hunt, Jr. at 302.594.9780 or rhunt@fandpnet.com.

[1] State v. Drews, 491 A.2d 1136, 1139 (Del. 1985).
[2] (e) The fees of medical witnesses testifying at hearings before the Industrial Accident Board on behalf of an injured employee shall be taxed as a cost to the employer or the employer’s insurance carrier in the event the injured employee receives an award.
[3] Teresa Holben v. Pepsi Bottling Ventures, 2018 WL 6603792, at *1 (Del. Super. Ct. Dec. 13, 2018).
[4] Id at *9.