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Workers' Compensation

The Case of the Purple Robe…..and a Little “Motion Day Magic” in Delaware

It is good to be back from Alabama.  Did I mention that Sweet Caroline is now into sorority recruitment?  I didn't do the Greek thing in this truly is all Greek to me.  There is a handbook of rules for Rush Week.  Hair must be freshly cut and highlighted.  Sorority representatives must have a professional mani-pedi and a brow wax.  Only one pierced earring per ear, so if you have extra holes, they have to go al fresco.  And finally, there are the topics that are off limits for recruitment conversation....known at Auburn as "the 4 B's".......boys, booze, Bible and bucks.

Turning to the topic du jour, last week was a mélange of Motion Day surprises.  It is all cool stuff worth knowing, and for that reason I am offering you a small sampler.  Enjoy....I know I did.

Wayne Dill v. First State Construction, IAB#1314167 (3/9/12)(ORDER).  My partner, Tim Lengkeek, successfully challenged the carrier's attempt to compel an FCE where the nature of the disability was a closed head injury.  The Board stated that "the FCE does not incorporate the cognitive symptoms that are debilitating this claimant."  Thus, this (dazed and confused) claimant will no doubt continue on for another five years of TTD.......on behalf of the claimant's bar--way to go, Tim!

Lionel Pizarro v. Wal-Mart, IAB#1342542(3/6/12)(ORDER).  This one is just another example of defense counsel Natalie Palladino showing off that smooth transition from Hearing Officer to private practice.  The issue? Where the claimant is precluded based on the 30 day rule from adding medical experts and the hearing date is then bumped by the Board (rather than continued by agreement by the parties), is the claimant's attorney entitled to benefit from a new "30 day" to add its experts?  The answer is "no".  And the outcome was pretty darn significant because the DACD Petitions under consideration were UR appeals and the experts foreclosed from testifying were Dr. Balu and Dr. Ledford.  I cannot wait to see the ultimate outcome of this one following the merits hearing-I am going to go out on a limb-could it be that the treatment of Drs. Balu and Ledford was non-certified at the UR level?

Finally, we have Jennifer Boomer v. Transcare ML, IAB#1308407 (3/6/12)(ORDER).  Also known as "the case of the purple robe".  And I personally think that notwithstanding his protestations to the contrary, attorney Mike Freebery has a claimant living with him. What is interesting about this case is that it deals with a Monsanto violation with respect to surveillance activity.  The investigator went to the door of what he believed was the claimant's residence, knocked and had the door opened by the supposed claimant "wearing a purple robe".   The investigator then engaged in conversation using "an appropriate pretext." [This is all soooooo wrong!]  In any event, the address was not the claimant's-it was the residence that is both the home and the office of Mike Freebery......who denies wearing a purple robe.  The defense counsel, horrified himself by the surveillance conduct, agreed that any and all surveillance should be struck and not offered up at the Hearing.  Claimant's attorney (none other than Mike Freebery presumably appearing at the Legal in a suit and not his nightclothes), sought dismissal of the entire Review Term Petition.  The Board held that barring all surveillance was an adequate enough curative measure.

So there you have it.  A little something for everyone.  I think I am going to go to Wal-Mart (as a salute to Natalie's client) and purchase a purple robe.  That way when an investigator shows up on my doorstep, I can have a little fun at the next Legal Hearing........LOL!!

Irreverently yours,
Cassandra Roberts

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

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