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Workers' Compensation

Delaware’s Displaced Worker and the Terrible, Horrible, No Good, Very Bad Day

While I was in London I heard from my good friend Joe Klusman. Pictured above is the Klusman Klan at what I think is a wedding—aren’t they just dressed to the nines?  I am delighted to feature Joe and his crew as a bit of a change from my usual pics of babies, kitties and Sweet Caroline.

So, Joe received a decision on remand in a case that hopefully put an end to what for most would have been a defense lawyer’s nightmare.  For the “back story’ on this, check out my posts of 8/5/14 (The Power of the Sua Sponte….) and 8/6/14 (The Return of the Sua Sponte). This was the case where Joe and Sam Pratcher went to Hearing on a Petition for Review and the Board determined sua sponte (can you tell I just love that phrase?) that claimant was a prima facie displaced worker and that the Employer failed to demonstrate the availability of regular employment in the local labor market compatible with claimant’s restrictions.  Talk about a “sucks for you” moment if you represent the carrier………

If you read my blog (and who doesn’t?) you know from the prior posts that the displaced worker finding was appealed to the Superior Court and the matter was remanded back to the IAB.  The IAB recently issued its decision and that is what prompted Joe to contact me.  And I for one have to applaud those that keep me in the loop about all the news that’s fit to print (and occasionally some that isn’t).

So I give you Ralph Burkovich v. Haines Fabrication and Machine, IAB#1360672 (10/8/14) along with Joe’s comments:

“Hi Cassandra.  In an effort to contribute something to the blog, attached is the IAB Decision on Remand in Burkovich.  You previously posted the original IAB case which determined the claimant was a displaced worker even though that argument was not made by the claimant at the Hearing.  The Superior Court decision essentially said the Board erred, but remanded the matter “out of fairness” so both parties could fully explore the displaced worker argument.  On remand, the Board reversed itself and found the claimant was not a displaced worker.  I am filing a Motion for Re-argument as to the fact that the Board granted the Termination Petition as of the date of the remand decision.  Since the Board found in its original decision that the claimant was not medically disabled, I think the Board’s reliance on Gilliard-Belfast is misplaced and the Petition should have been granted as of the original decision in October 2013.  Thanks.  Joe.”

This is perfect, by the way.  Joe not only sent me the case, but also a brief commentary.  Others have done that as well, but the norm is that folks just send me a case and expect me to figure it out.  Not that I am incapable of doing that and yes, it’s better than nothing, but the better way is to tell us in your own words what it means……because we all get weary of hearing my spin on things.  Or at least that’s what my kids tell me.

I’m more than a little intrigued by the Board reversing itself on the displaced worker issue.  Makes me wonder what would have happened had Joe not appealed.  And it seems like a totally different level of scrutiny applied the second time around…… not unlike my marriage.

Irreverently yours,



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


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