Holiday Potpourri: The Magic of Motion Day
I have to be stirred in my soul to do my best blogging. Caroline is on me like white on rice to be posting every third day and the majority of recent IAB decisions have left me cold.
Occasionally, something comes along that tickles my funny bone (remember Defecation Syncope, which still beats close to my heart) or strikes a familiar chord (such as the lady who fell in her driveway loading desserts for the company Christmas party) but by and large, the UR appeals and PPD outcomes do nothing for me.
But y’all deserve to be updated and no more so than at the holidays. Just as the English must have their figgy pudding, so must we comp lawyers have our case law. Think of the following not as a gift, but more as an assortment of stocking stuffers. I promise this is as good as a Starbucks gift card.
Rebecca Clark v. State of Delaware, IAB Hr’g No. 1393189 (July 30, 2020) (Order). In this one, the Board granted the Employer’s Motion to Dismiss a permanency claim for concussion and for the cervical spine where there was a prior merits adjudication that the cervical injury was not compensable and the concussion injury had resolved. That initial ruling in Employer’s favor was appealed to both the Superior and the Supreme Courts, both of which affirmed the denial below. The claimant then came back with the instant permanency DACD for those body parts. Shades of Frozen and that irritating song, “Let it go” come to mind.
Maikeysha Bratcher v. Integrity Staffing Solutions, IAB Hr’g No. 1496866 (Aug. 6, 2020) (Order). The tender of an Agreement and Final Receipt with a TTD check does not create an open Agreement, implied or otherwise. However, where claimant is unwilling to sign these documents, it cannot be fairly said that she agreed to a closed prior of disability. Note, however, that the Board also ruled that the claimant cashing the TTD check does not establish one result over the other. The moral of that story is take the money and run.
Kari-Ann Jones v. Universal Health Services, IAB Hr’g No. 1412276 (Aug. 24, 2020) (Order). So if this was its own post, I would title it “Suffer the Little Children…” because it involves a tragedy of Biblical proportions. Claimant has a 2014 work injury that results in a 2020 agreement to globally commute for the sum of $40,000.00. All terms of the commutation are agreed-upon and commutation pleadings are in the process of being drafted. One week later, the claimant and her husband are killed in a motor vehicle accident leaving behind three young children. Employer attempts to avoid payment on the commutation because the documents had not yet been signed, filed, or approved by the Board. Finding that the parties had reached a meeting of the minds on the terms of the commutation and that the commutation would have been deemed in claimant’s best interest had the commutation been presented, the Board deemed the commutation enforceable. Can we say “Scrooge”?
Jorge Santiago v. Davis Young Associates, IAB Hr’g No. 1402639 (Aug. 14, 2020) (Order). This case takes a different spin on trying to back out of a commutation, this time on the part of the claimant. The parties agree to a global commutation at $20,000.00. Before the tendered documents are signed and filed, claimant’s counsel advises that the acceptance is rescinded based on the discovery of outstanding medical bills, a curious situation since the carrier had denied medicals since 2014. Again, using the two-pronged commutation analysis of “meeting of the minds” in tandem with “the claimant’s best interest”, the Board holds the commutation is enforceable, noting that the prior longstanding and ongoing denial of benefits clearly rendered this guaranteed recovery of a sum certain in claimant’s best interest.
Kimberly Graham v. Smokin’ Joe’s Tobacco Shop, IAB Hr’g No. 1496173 (Oct. 19, 2020) (Order). This little ditty is a tutorial in the payment without prejudice statute, 19 Del. C. Section 2322(h). The way I see it, the case presents the answers to 2 questions:
Does one payment issued under and in compliance with the “payment without prejudice” statute serve to cover any subsequent payments if the PWOP statutory requisites are later omitted? (the answer is no)
Does the claimant’s manual alteration as to the “nature of injury” on an open Agreement as to Compensation allow the employer to avoid ongoing TTD? (the answer is again no)
The above is my gift to you until I stumble on something that is a little more worthy — more along the lines of the 3 Wise Men presenting gold, frankincense, and myrrh.
Until then, you can look forward to the musings of my daughter Caroline, along with an exciting guest blogger coming later this week.
Wishing you all the blessings of this Holiday Season!
Cassandra Roberts
