The Valentine’s Day Post: A Whitman’s Sampler of DE Motion Day Rulings

As my girls used to say when they were little, today is a "lucky day".....which by their standards meant a special day such as when the school cafeteria was serving hot dogs and tater tots.  I cherish today because this particular Valentine's Day is the 10 year anniversary of Tom asking me to marry him.  Certainly would have gotten the prize for the most creative proposal-it took place on a bridge in Seneca Falls, New York which is the prototype for the bridge in Frank Capra's "It's a Wonderful Life."

And it certainly has been a wonderful life.  Which brings me to today's post.  Just like the Whitman's assortment, I present you with a potpourri of recent "Motion Day " rulings......and as I have often said, there is nothing like the law that comes out of Motion Day here in the First State.

So what do we have?

#1  Grayson Williams v. Evraz Oregon Steel Mills, IAB Hrg. #1329960 (1/29/13)(ORDER) stands for the proposition that there two and only two scenarios pursuant to which the IAB can award the carrier a future credit-a Section 2363 third party recovery and the credit awarded where there has been an overpayment to the claimant.  This case met neither circumstance-the carrier had paid Delaware County Domestic relations the sum of $5272.79 to satisfy a lien for child support arrearages.  Carriers take heed!

#2 Kenneth Howell v. Wilson Masonry, IAB Hrg.# 1338970 (2/5/13)(ORDER) on Motion for Reargument an attorney's fee is awarded based on a Termination being granted later than the date of filing, with the Board commenting that Claimant's defense of this claim resulted in 33 weeks of additional TTD that could not be converted to the 300-week TPD max.

#3 Michelle Dilley v. PNC Bank, IAB Hrg. #1372654 (1/31/13)(ORDER) in which case the Board rules that the Employer's fact witnesses who are based out of Pittsburgh, PA are not excused from live appearance.

#4 Bartholomew Close v. United Parcel Service, IAB Hrg. #1373056 (1/28/13)(ORDER) is a quirky little scenario where under the facts of this case the parties' agreement to jointly request that Dr. Fink rate permanency does not bind either side to his ratings.  The moral of this story is that if one side intends to bind the other, the email and other exchanges need to clearly demonstrate a "meeting of the minds."

#5 Kevin Carter v. Wal-Mart, IAB Hrg.# 1386657 (2/4/13) is actually not a Motion day ruling; it is part of a merits decision.  The proposition is that the carrier's "30 day offer" was deemed legally insufficient and as such an attorney's fee of $3300.00 was awarded. Another one that pivots on its facts but also seems to stand for the notion that an "offer to acknowledge" a certain injury (in this case a hernia) is not enough to avoid a fee obligation.

There you have it...... little morsels of procedure that make the difference between a dilettante and a seasoned comp practitioner.  I like to think this is more delicious than a stop at Godiva.....truffle anyone?

Reverently yours....in keeping with the solemnity of the occasion,
Cassandra Roberts (a/k/a Tom's wife)

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