Beat the Clock: Implied Agreement in DE Enlarges Statute of Limitations to 5 Years

Okay this case is not really hot off the press, I am embarrassed to say.  It was kindly brought to my attention by Henry Davis Esq... and supplied to me by Steve Morrow Esq.  I am blogging about it with the belief that if I make a copy available with a few brief comments, some one some where will some day be blessed.  That and it offers a hopefully welcome break from my many posts about Utilization Review.

The case is Sean Emory v. JR Trucking Co., IAB # 1295612 (3/31/11).  The claimant sustained an amputation injury to his finger following a six-year tenure with his employer.  Sadly for all involved, the accident occurred during a period of lapse in the workers comp coverage.  The employer paid the claimant's wages for a period of weeks while he was out of work and paid some of his medical bills.  No Agreement as to Compensation was ever prepared.  Following a tortured procedural history where a comp claim was filed, a comp claim was dismissed without prejudice, a negligence action was filed, a negligence action was dismissed with prejudice, the claimant the again filed a DCD Petition seeking benefits.  The filing was more than two years post-accident (see 19 Del. Code Section 2361) but within the broader five year statute of limitations allowed for a compensable claim.

Thus the question of whether an "implied agreement" was created between the parties so as to render the DCD filing timely?  The answer, according to the Board, was a carefully considered "yes".  Read the attached for further edification.  Good discussion of a "feeling of compulsion."

So Sweet Caroline returns from Italy this weekend and we move her to Auburn University the following.  This is the official beginning of my "melancholy posts."  I was trying to figure out what was so melancholy about this post.  What did I come up with?  #1 Man lost part of his finger, #2 Employer got caught with its pants down on the work comp insurance.

Works for me...... and don't it make my brown eyes blue.  I miss my girl already.

Irreverently yours,
Cassandra Roberts

Delaware Detour & Frolic   Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts

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