The Song of Solomon Post....and Another Two of Your Delaware "Motion Day" Questions Answered!

Robin Roberts of Philadelphia Phillies

First, a shout out to my dear husband Tom.  Today is our eighth wedding anniversary.  And yes, you could say it is indeed better "the second time around."  To borrow from my wedding invitation: "Many waters cannot quench love; rivers cannot sweep it away. If one were to give all the wealth of one's house for love, it would be for naught." [Song of Solomon 8:7]

Turning from the love of my life to the mundane practice of law, this week brings us procedural tidings from the IAB that will hopefully enhance all of our practices.  From my perspective, only a bouquet of lilies (or a small piece of jewelry) is more appealing than the delivery to my desk of case law that answers a question that we either did not know the answer to, or perhaps we do, but cannot point to the legal authority for such.  And those Thursday "Motion Day" rulings-- you have to have a practical appreciation for the fact that Motion Day is the great forum for some of the Bar's best sparring.

So, exactly what am I talking about?

Case #1: Angel Garner-McMillan v. Lifestar Ambulance, IAB# 1357838 (9/6/11)(ORDER).  Here is the issue: Claimant has a period of total disability.  She returns to work and admittedly there is no signed Final Receipt or Termination Order.  When she happens to go out of work again, is the carrier stuck?  NO.   Relying on case law that stands for the proposition that "an injured employee's conduct can equate to an implied consent to termination of benefits", the Board ruled that a return to work without restriction for a period of eleven months is tantamount to implied consent.  Victory for the employer/carrier and props to attorney Maria Newill for showing us all how it's done.

Case #2: Carlotta Simpson v. State of Delaware, IAB#1359591 (9/1/11) (ORDER).  This case is a little sexier than the first, and not simply because it involves my partner Tim Lengkeek (for the claimant).  A little more of a conundrum was presented under the posture of this case, and the outcome is a tutorial in the art of drafting to be specific, and to be inclusive, if that is your intent.  By way of background, there was a DACD Petition pending and this matter came to "Motion Day" on an attempt by the carrier to have the DACD dismissed based on the doctrines of res judicata and collateral estoppel.

What happened leading up to this? Claimant filed an initial DCD Petition to compel recognition of injuries to the cervical spine, thoracic spine, lumbar spine and shoulders as the result of an occupational MVA.  Several months thereafter, and following a DME, the employer tendered an offer conceding the compensability of a cervical spine injury, allowing for a limited period of TTD, and payment of medical treatment related to the cervical spine.  This same offer letter stated that upon resolution of the litigation and the issuance of Agreements and Final Receipts, "the claimant would then, of course, be free to file additional claims as permitted in accordance with applicable Delaware law in the future."

So what went so very wrong?  Well, defense counsel thought acceptance of the offer meant the claimant was abandoning claims for the body parts that were not in the letter-- specifically the lumbar spine and shoulders.  And a letter was sent by claimant's counsel stating that "all issues regarding our DCD have been addressed.....I will be withdrawing the petition and cancelling the hearing...."  Almost immediately thereafter claimant's counsel filed a DACD seeking compensability of the shoulder and lumbar spine-- which prompted the request for the Legal Hearing that gave rise to the attached Order, on a Motion to Dismiss.

How did the Board rule?  Well, allow me to say that they did not rule the same way they did the last time this claimant's attorney and this defense law firm had an almost identical issue.  And in the words of Forrest Gump, that's all I am going to say about that.  In this case there is recognition of ambiguity in the communications between the parties and a ruling that gives the claimant the benefit of the doubt, in that the Motion to Dismiss was denied.  And a few practice pointers can be gleaned by this decision-- if nothing else, be explicit, be inclusive, allow no margin of ambiguity.....speaking of which--

"Neurosis is the inability to tolerate ambiguity." Sigmund Freud.  I guess that says it all about the mental health of the lawyers involved.  Tim, Bill-- we are all reassured to know that you are both emotionally intact!

Irreverently yours,
Cassandra Roberts

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