Okay, Sean Gambogi of the Kimmel, Carter, Roman & Peltz (did I leave anyone out?) firm, this one's for you. This year marks the 20th anniversary of the case of Jewell Hoey v. Chrysler and for those of you who think of me as a defense attorney.....I represented Jewell Hoey and created the Hoey doctrine. Sean was doing some research and requested a copy of the IAB ruling. Attached please find what can only qualify as a "keepsake"-- the original IAB decision in Jewell Hoey v. Chrysler, IAB#894750 (10/4/91). That case is so old it predates the birth of Sweet Caroline. Jocelyn was at best a toddler. Oh, how time flies when you're having fun!
For those of you from parts hither and yon..... or otherwise new to work comp, a Hoey displaced worker is someone who remains employed with the entity for which they were working at the time of the work injury and is rendered "displaced", if you will, by the unwillingness or inability of the employer to take a position on the availability of modified duty. Ms. Hoey was subject to light duty work restrictions and presented to the company doctor every month or so with her doctor's note, only to be turned away and told to come back in another two months and the issue of available modified duty would again addressed. In Ms. Hoey's case this went on for quite some time and was still the situation when this matter presented to a hearing on a DCD seeking ongoing total disability.
Why not simply resign? Because the claimant earned close to $20 an hour (and that was 20 years ago) and her benefit package was enviable by most standards. There was also the concern that if she left Chrysler and engaged a lower paying job, any claim for partial disability (diminished earning capacity under 19 Del. Code Section 2325) would be denied and the argument advanced that Ms. Hoey had forfeited partial by leaving Chrysler before any final decision had been made regarding a light duty job placement. So basically the employer has to make a decision, communicate it to the claimant, and not hold the claimant hostage on this issue (actually they can hold them hostage but they will need to pay total disability under the Delaware Supreme Court's appellate ruling in Hoey v. Chrysler).
I guess this serves as a primer on the Hoey doctrine. In the crown of black letter law, this is undoubtedly a real "Jewell" if you represent claimants. And you would be well-advised to know it even better if you represent employers....:>)
Irreverently yours (and swinging both ways),Cassandra Roberts
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