Okay this case is not really hot off the press, I am embarrassed to say. It was kindly brought to my attention by Henry Davis Esq... and supplied to me by Steve Morrow Esq. I am blogging about it with the belief that if I make a copy available with a few brief comments, some one some where will some day be blessed. That and it offers a hopefully welcome break from my many posts about Utilization Review.
The case is Sean Emory v. JR Trucking Co., IAB # 1295612 (3/31/11). The claimant sustained an amputation injury to his finger following a six-year tenure with his employer. Sadly for all involved, the accident occurred during a period of lapse in the workers comp coverage. The employer paid the claimant's wages for a period of weeks while he was out of work and paid some of his medical bills. No Agreement as to Compensation was ever prepared. Following a tortured procedural history where a comp claim was filed, a comp claim was dismissed without prejudice, a negligence action was filed, a negligence action was dismissed with prejudice, the claimant the again filed a DCD Petition seeking benefits. The filing was more than two years post-accident (see 19 Del. Code Section 2361) but within the broader five year statute of limitations allowed for a compensable claim.
Thus the question of whether an "implied agreement" was created between the parties so as to render the DCD filing timely? The answer, according to the Board, was a carefully considered "yes". Read the attached for further edification. Good discussion of a "feeling of compulsion."
So Sweet Caroline returns from Italy this weekend and we move her to Auburn University the following. This is the official beginning of my "melancholy posts." I was trying to figure out what was so melancholy about this post. What did I come up with? #1 Man lost part of his finger, #2 Employer got caught with its pants down on the work comp insurance.
Works for me...... and don't it make my brown eyes blue. I miss my girl already.
Irreverently yours, Cassandra Roberts
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