Leaving On a Jet Plane: DE Superior Court Allows 5 Year SOL For Claims Initially Recognized Elsewhere

Leaving On a Jet Plane: DE Superior Court Allows 5 Year SOL For Claims Initially Recognized Elsewhere

Today’s case is World Airways, Inc. v. Michael Golson, CA No. K12A-09-004 WLW (Del. Super. Ct. Feb.5, 2014).  When it first hit my desk last week, I was struck by what appeared to be a series of details not easily digestible into fodder for my blog.  Stated differently, I had a bit of trouble following what this case stood for and I reached out to the claimant’s attorney Sean Gambogi, asking for a Cliff Notes version of the legal propositions involved.  Bless his heart, Sean sent me over the following treatise:


"Claimant lived in Georgia and was a flight mechanic.  He was injured 12/14/09 at Dover Air Force Base when a plane from another company taxied too closely to where he was working on his aircraft.  The jet wash from the other plane launched him 40 feet and he injured his neck, left shoulder, and right knee.

The comp claim was accepted and set up by employer in GA.  He spoke with an attorney in GA who, for some reason (I was still in law school at this point!), referred the case up to us for handling the WC and 3rd party.  We filed a petition against employer in DE listing all three body parts.  The employer agreed to recognize claim in DE, but only for left shoulder and right knee, since the neck was a later-developing issue.  The Agreement did not foreclose the ability to relate additional injuries.  For tactical and economic reasons, we accepted this Agreement with the belief that we could relate the neck when permanency was claimed in the near future.  It is important to note that a check for TTD was issued to pay him for difference in GA rate (which he already received) and DE rate.  The Agreement and Receipt for this payment was sent to Claimant, but never filed with IAB.  The carrier issued the TTD check directly to Claimant.  This comes up later when they try to say there was no Agreement.

Because it was difficult to get him up here for a permanency rating, our DACD for perm did not come until March 2012 (a few months past the 2-year mark).  The Employer filed a motion to dismiss neck claim for various reasons, including res judicata, full faith and credit, and statute of limitations.  I know you are most interested in SOL issue, so I will stick to that.  The argument employer advanced was that since Claimant had first received benefits in GA and was now coming to DE, 19 Del. C. § 2303(b), the anti-forum shopping statute applied.  Employer further argued that the statute of limitations for claims filed initially in DE [19 Del. C. § 2361(a)] has different language than 2303(b) ("date of accident" for 2361(a) versus "date of injury" for 2303(b)).  The end run of the argument was that the legislature intended claims filed initially in other jurisdictions have a “body part specific” SOL as opposed to claims that were initiated in DE, which do not have a “body part specific” SOL.  The Superior Court decided that because 2303(b) says “payments of compensation ... made in any case under an Agreement approved by the Board or by an award of the Board" are given a 5 year SOL, and the payment under compulsion of TTD benefits counts the same as an Agreement approved by the Board, they did not address the difference in language of “date of injury” versus “date of accident” argument.

The other issue in play was the fact that the Agreement and Final Receipt was never filed with the IAB.  I think the Board just assumed that there was clearly payment under compulsion since we had a defense attorney involved, a settlement agreement in writing, and the check was issued.  The Superior Court remanded to the IAB for further fact finding on this issue-- the IAB found the TTD was paid under feeling of compulsion and returned the appeal to Superior court.  Then we got the 2/5/14 decision outlined above."


My sincere thanks to Sean for taking the time to explain above what took our Superior Court 18 pages of commentary.  Here are my take-aways:

·   The odds usually favor a finding  payment under compulsion unless the facts are glaringly obvious otherwise and even then—well just looks what our Supreme did with that case where the claims handler erroneously paid medical bills after the 5 year SOL expired
·   Bottom line—you have 5 years to add a body part regardless of where the claim started out
·   Sean Gambogi was still in law school in 2009….. how far he has come!

Irreverently yours,
Cassandra Roberts

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