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Workers' Compensation

The Cruiser T Post…..and a Whitman Sampler of Motion Day Rulings in Delaware

Nutella Grace and Cruiser T - The Cats     Nutella Grace and Cruiser T - The Cats

My big news? We adopted another rescue cat, a kitten actually.  His name is Cruiser T, "Cruiser" in honor of the police vehicle which rescued him and "T" in honor of my husband Tom.  The first week we had him, I was concerned that adding another cat to the mix had been a terrible mistake.  Nutella Grace hated him.  Made guttural sounds the likes of which I had never heard before, along with a lot of hissing.  Her status as the Queen Bee was definitely threatened.....or so she perceived.

I am happy to report that after the long Easter weekend, they are now almost companionable.  Nuts Grace has figured out that there is enough love (and food!) to go around.  And chasing Cruiser T is probably the best exercise my lazy, sleepy older cat can hope for.  I am thinking it is going to be a win/win.  Cruiser has his "forever home" and Nutella has a playmate...... along with the equivalent of a treadmill.

Turning to the case law, in the wake of my recent avulsion fracture, foot pain has made me cranky and thus everything strikes me as, well, a little boring.  So today's post is a Chinese menu of recent procedural rulings coming out of Thursday Motion Day.  My prior concern that the newly amended Board Rules (which require that we always submit in advance a form of Order) would work to deprive us practitioners of some of what I call the "good stuff" is apparently misplaced.   So feast on the sampler of recent Orders below:

   Christopher White v. Community Legal Aid Society, IAB#1352870 (1/3/11)(ORDER) This is an older ruling which escaped my attention up until now.  It stands for the proposition that the Claimant is entitled to interview non-managerial employees of the adverse entity, and further entitled to a copy of the Claimant's Outlook calendar (although the Board held that the Calendar was subject to discovery for a period of 6 months, rather than the 5 years that were requested ).  Of note, these requests for information were prompted by a course and scope defense.

   Cheryl Drummond v. State of DE, IAB#1365733 (2/23/12)(ORDER) The Board declined to enforce a Termination/ Temp Partial settlement where the Claimant with a closed head injury wanted to back out.  "Claimant argues that the very nature of her compensable injuries has impacted her ability to comprehend and appreciate the legalese surrounding the settlement agreement at issue."  The Hearing Officer agreed; however, the Claimant agreed to a credit in favor of the Employer for $3550.00 in medical witness cancellation fees occasioned by the initial settlement.  The Hearing Officer further allowed the Employer to reduce its ongoing payment to the Claimant, during the pendency of the reinstated litigation, from $381.00 to $200.00, which was the agreed upon TPD rate, in order to prevent a windfall to Claimant should the Employer prevail at the hearing-with the understanding that if Claimant prevails, Employer will pay the difference between the $381.00 and $200.00.

   Sergio Gonzalez v. Allen Family Foods, IAB#1365037 (2/9/12)(ORDER) The Board denied the Claimant's request that he, his attorney and Dr. Rodgers be permitted a tour of the Employer's premises to gain a better understanding of the mechanism of the work accident, noting that Claimant does not speak English.  Request denied and Superior Court Rule 34 held not to apply.

   David Stephens v. NKS Distributors, IAB#1326180 (1/30/12)(ORDER) The Employer is permitted to file a Review Term while a prior IAB decision is pending. "Claimant has provided no authority and the Board has found none that would prohibit Employer's ability to file the termination petition.  There is nothing preventing Employer from protecting its interests.  Notably, during the hearing the Employer did not dispute that there was some period of total disability; the question was simply one of duration.  Hence, the subsequent filing could be equated to a pleading in the alternative and is therefore appropriately filed."

   Anthony Windsor v. John Teider, Inc., IAB#1331239 (2/3/12(ORDER) In the absence of a DME report allowing for residual work capability, a Functional Capacity Report alone will support the filing of a Termination Petition.  Claimant's Motion to Dismiss is denied.

   Wayne Dill v. First State Construction, IAB#1314167 (3/9/12)(ORDER) The Claimant is permitted to refuse an FCE where the nature of injury is closed head and there is a good faith basis to argue that the FCE does not ferret out the cognitive symptoms which are the ones which impede a return to work.

I am now less bored than I was when I started writing.  My foot hurts less and the pain meds have kicked it.  I am back to thinking that all of the above makes the world a better place.  If nothing else, knowledge of such makes us better practitioners.

Have an wonderful weekend, dear readers.  For my part, I will be at home playing with my cats...:>)

Irreverently yours,
Cassandra Roberts

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

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