NO INDUSTRIAL ACCIDENT:
Claimant's incredibility leads to denial of claim.
Kelley v. Aaron's Sales & Lease (pdf) - Claimant alleged injury to her low back for which she sought compensation in excess of $134,000.00. Discovery found evidence of deceit and how any injury was related to her second job with a Maryland janitor company. Testimony sealed the deal. The I.A.B. held she failed to prove an accident occurred with our client.
NO INDUSTRIAL ACCIDENT:
Proof of drug seeking and no accident leads to denial.
Johnson v. Std. Pipe Servs. (pdf) - Claimant said she was thrown out of our client's truck. We argued that was impossible and that she sought drugs with total disregard to the welfare of her unborn child. The I.A.B. agreed and denied the claim.
NO INDUSTRIAL ACCIDENT:
First Report of Injury cannot be used to prove injury.
Stone v. Murry Trucking (pdf) - Claimant alleged a neck injury. We argued there was no accident. He tried to submit the First Report of Injury to prove one. We objected. The I.A.B. agreed and denied the claim.
Denial when accident arose "out of" personal condition.
Norris v. Willis Chevrolet (pdf) - Claimant alleged her job caused her knee to dislocate. We argued the injury was a congenital condition. The I.A.B. denied the claim.
Denial when accident did not arise "out of" employment.
Morales v. State of Delaware (pdf) - Claimant fainted at work and sued for compensation. Mr. Andrews argued that while the accident arose "in the course of" employment, it did not also arise "out of" employment. The State won on all counts.
Recurrence denied for failure to seek work.
Anderson v. Harbor Seafood (pdf) - Claimant sought a recurrence of total disability following a surgery that all parties agreed was related. We argued that his failure to return to work throughout the term of his temporary partial disability Agreement equated to removal from the workforce. The I.A.B. denied the claim based on that and the Receipt he filed to close his prior Agreement.
DISABILITY TERMINATED & INJURY DENIED:
I.A.B. terminates total disability and denies Claimant's request to add shoulder injury to parties' Agreement.
Maggio v. Robin Drive Auto (pdf) - When we petitioned to terminate a total disability Agreement Claimant responded by petitioning to add a shoulder injury. We won on all counts: The I.A.B. rejected the shoulder claim and terminated total disability.
AREA OF INJURY:
Surgery and treatment unrelated to recognized injury.
Hamilton v. Indep. Disp. Servs. (pdf) - The parties entered into Agreements for a lumbar injury in 2002. Employer paid for 12 years until Claimant sought surgery at L5-S1 and ongoing total disability. Claimant argued that our client's payments had accepted liability. The I.A.B. denied the claim. When he moved to reargue, the I.A.B. denied the claim a second time in Hamilton II (pdf). His claim was denied a third time on appeal to Superior Court in Hamilton III (pdf).
EXTENT OF INJURY:
Discovery of a pre-existing condition renders treatment unrelated and a finding that all injuries resolved.
Martinez-Lopez v. Chapman Hosp. (pdf) - Claimant alleged to have injured her ankle to such a degree that she was totally disabled from all work for over a year. We argued that any accident only caused a minor ankle roll, she had two intervening accidents and we should not be liable. We won on all counts.
PERMANENT PARTIAL DISABILITY:
Claim denied on agreed nature of injury and ripeness.
Brower v. Pro Lawn Inc. (pdf) - The parties entered into a medical only Agreement that acknowledged a lumbar strain. The claimant then petitioned for 57 weeks of permanent partial disability compensation, alleging a 19% impairment to his lumbar spine. We argued this was unrelated to the industrial accident based on the description of the nature of injury on the Agreement and that permanent partial disability was not ripe as he was considering additional surgery. The I.A.B. denied the claim. When he moved to reargue, the I.A.B. denied the claim a second time in Brower II (pdf).
ADJACENT DISC DISEASE (LUMBAR):
Claim for adjacent disc disease denied as unrelated.
Hellstern v. Culinary Servs. (pdf) - The parties entered into an Agreement for injury at L3-L4 and to pay for spinal surgery thereto. During the surgery, Claimant's treating physician also fused L2-L3. Claimant and her physician then petitioned to force our client to pay for L2-L3 on the ground of adjacent disc disease. The I.A.B. denied the claim. Her claim was denied a second time on appeal to Superior Court in Hellstern II (pdf).
ADJACENT DISC DISEASE (CERVICAL):
Adjacent disc disease surgery denied as unrelated.
Padro v. Forever Inc. (pdf) - Claimant sought a recurrence of total disability and a surgery for adjacent disc disease. Our client won on all counts. The I.A.B. denied the surgery based on our medical expert and denied recurrence based on Receipts.
CERVICAL FUSION SURGERY:
Surgery denied by Agreement limiting injuries to specified levels of cervical spine.
Kreuzwieser v. Kite (pdf) - After an accident involving a horse, the parties entered into an Agreement stating that only the C2 vertebra was injured. The I.A.B. then approved the Agreement. Claimant then petitioned the I.A.B. to review the Agreement to have a C3-C7 anterior and posterior discectomy become part of the claim. The I.A.B. dismissed the petition as the parties' Agreement previously disclaimed injury beyond C2.
Agreement voided ab initio due to Claimant's fraud and full indemnity awarded to Employer.
Delaware Siding Co. v. Zuniga (pdf) - In April 2015 Claimant alleged that he injured his right knee as a result of employment with our client. In good faith our client offered to accept the claim as compensable and entered into an I.A.B. Agreement pursuant to which our client paid benefits. We later discovered that Claimant had actually injured his right knee while working for his own company and immediately filed a petition to void the Agreement and order Claimant to repay $115,142.90 in indemnity. We won on all counts.
Complex fraud found and indemnity awarded therefor.
Beebe Hosp. v. Norwood (pdf) - For fifteen years the Claimant led multiple parties to believe that she was totally disabled. After discovering evidence that she had been employed throughout that time, Mr. Andrews filed a petition for review with the I.A.B., seeking a finding of fraud; retroactive dismissal of the open Agreement; and requesting Claimant to pay full indemnity of $114,120.00, dollar-for-dollar, plus legal costs. The Employer won on all counts.
I.A.B. orders indemnity for fraud against Employer.
Bailey v. XPress Nurses (pdf) - Claimant sprained her wrist while working for our client and collected ongoing total disability. We discovered that she had been working full duty for another employer the whole time, immediately petitioned to terminate the Agreement for fraud, have her reimburse all money fraudulently obtained and have her referred for criminal proceedings for criminal fraud. Our client won on both the civil fraud and on the criminal fraud in Bailey II (pdf).
Agreement voided ab initio for fraud with referral to Bureau of Fraud Prevention for criminal proceedings.
Mohr v. Shivani Inc. (pdf) - The parties entered an Agreement on an unwitnessed accident. A cash advance company later contacted us to assert a lien on compensation in violation of Delaware's law. Our investigation into the cash advance company brought to light that the Claimant had admittedly injured herself at home. We asked the I.A.B. to enjoin the cash advance company from conducting further business and successfully voided the entire Agreement for fraud.
Full indemnity to Insurer ordered based on Employer's fraud against both his Insurer and his Employee.
Skinner v. Barbutes (pdf) - A Carrier originally accepted liability and paid over $10,000.00. It then discovered that the Employer owned two businesses: One was insured, the other was not. Claimant worked for the uninsured company when injured and Employer reported the claim as though he worked for the insured company. Mr. Andrews petitioned to dismiss the Carrier due to the fraud; hold the fraudulent party exclusively liable on the claim; and order the Employer to pay full indemnity to the Carrier for fraud. The Carrier won on all counts.
NO "INDUSTRIAL" ACCIDENT:
If it ain't industrial it ain't compensable.
Bullock v. Hollywood Motel (pdf) - Claimant and our client had both an Employer / Employee relationship and a Landlord / Tenant relationship. She was injured when walking to deposit her rent check. We argued that this did not occur "in the course of her employment" but "in the course of her lease." The I.A.B. denied the claim.
Subpoenaed telephone records definitively settle dispute over proper employer between subcontractors.
Delgado v. CEM Enter. v. SM Contr's (pdf) - Claimant fell off a roof while working on a new construction site in Maryland for a Delaware Employer. Claimant stated he was working for CEM Enterprises when he filed his petition. CEM in turn alleged that they had no idea who the Claimant was but that he was actually employed by our client, SM Contractors, which CEM alleged was also working at that jobsite on the date of accident. Mr. Andrews argued that SM Contractors only had one "new construction crew," which was working in Delaware, not Maryland, on the date of accident. He also argued that accident reports from two separate companies that day listed CEM as the employer of the Claimant. Finally, he subpoenaed the telephone records of the Claimant, CEM's owners and SM's owners and proved the following: (1) Claimant received a text message from CEM the day before the accident offering to hire him for a job in Maryland; (2) after the accident there were multiple telephone calls between Claimant and the owners of CEM; and (3) there were no calls or text messages between Claimant and anyone with any relation to our client (SM) during any period of time. The Industrial Accident Board agreed on all counts and dismissed our client from all liability.
DRUG DEALING IS "EMPLOYMENT":
Selling illegal drugs is "employment" to deny liability just as bootlegging was "employment" during Prohibition.
Burris v. Top Flight Flagging (pdf) - Claimant alleged "total disability" for over a year and sought $45,000.00 in unpaid total disability benefits; over $65,000.00 in unpaid medical expenses; and entitlement to ongoing medical treatment. Mr. Andrews discovered evidence of Claimant working as an end stage cocaine bagger in an underground cocaine distribution enterprise. Arguing that Claimant could not be "totally disabled" because drug dealing is "employment," he called a forensic narcotics expert to testify on this and presented Prohibition Era case law that supported this position. The I.A.B. agreed, denied all indemnity and held that any alleged injuries "resolved" to terminate all liability.
TERMINATION IN FACE OF DEMAND FOR LIFETIME COMPENSATION:
All compensation to unauthorized immigrant terminated based on labor market survey and labor economics experts.
Espinosa v. Elite Cleaning Co. (pdf) - The claimant used a forged social security card to obtain employment illegally with our client. She then claimed to have been injured in an industrial accident. Employer entered into an Agreement for total disability under the belief that the claimant was legally entitled to work in the United States of America. When the claimant was cleared to for work but refused to do so, we petitioned terminate total disability. She then notified us that she was an unauthorized immigrant and claimed that, by admitting this, no one would hire her so that she was entitled to "total disability for life." First, we had our medical expert testify that she was medically employable. Second, we had our labor market expert testify as to the 32 jobs she found within the claimant's capabilities. Third, we countered her arguments through the testimony of professor of labor economics on the numbers of illegal immigrants working within the types of positions on the labor market survey. Our client won on all counts and the I.A.B. terminated all compensation.
Evidence definitively proves that our client is not the proper employer on a motion to reargue.
Escobar v. DSH Enterprises (pdf) - Claimant alleged a spinal injury while performing concrete work for J.T. Hoover, against whom he naturally filed a petition. When J.T. Hoover and its insurer failed to respond, he filed a petition against our client, DSH Enterprises, which was J.T. Hoover's payroll company. We moved to be dismissed because all evidence pointed to J.T. Hoover. Because both companies were owned by the same husband and wife, the I.A.B. initially ruled that each was 50% liable on the claim. We moved to reargue that point and the I.A.B. ultimately agreed that J.T. Hoover was the proper employer. DSH was dismissed.
I.A.B. limits claim to 13 days and extinguishes liability.
Walker v. Castle Ride Transp. (pdf) - Claimant was involved in a minor auto accident. Three days later his attorney set up an appointment with a doctor. While driving to that appointment, he was involved in another accident. He claimed everything arose from the first accident and sought $102,502.59 in compensation. We showed he regularly treated for these complaints since 1998. The I.A.B. awarded him a total of $619.05 and held that everything resolved so there is no future liability.
Industrial Accident Board finds 0% impairment and extinguishes all future liability.
Patille v. Del-Mar-Va Staff'g (pdf) - The parties previously entered into three separate Agreements for a limited medical benefits for reflex sympathetic dystrophy to the right hand while stating that any "RSD fully resolved." One year later, she demanded 30% impairment to her hand. We argued that she had 0% per the Agreement and pointed out that her allegations were contradicted by her driving stick shift to the hearing. The I.A.B. agreed and extinguished all future liability.
Employer hires one of Claimant's treating physicians as an expert for finding that all injuries resolved.
Cannedy v. GEM Ambulance (pdf) - Claimant alleged ongoing injury to her knee after a "lifting incident." We argued any injury was short lived and resolved so that she returned to her baseline normal status as she was prior to accident. We retained one of her treating providers. The I.A.B. ruled that all injury resolved.
ALL DISABILITY TERMINATED:
Claimant returns to pre-accident status post surgery and compensation terminated without FCE.
Sweetman v. Willis Chevrolet (pdf) - Claimant had a pre-existing injury to his lumbar spine which caused pain rated at 4/10 prior to the industrial accident with our client. After sustaining new injury to the same area, he underwent two surgeries over two years but refused to return to work. We proved that his pain was now the same, or better, than prior to the accident and that FCEs are not mandatory to prove return to full duty work.
I.A.B. finds injuries resolved to deny lumbar surgery.
Goodchild v. R&E Excavation (pdf) - The Claimant (a CDL driver) sought lumbar hardware removal surgery and ongoing total disability. We argued that everything from the accident resolved so he returned to his pre-existing baseline back pain and that he voluntarily retired by seeking a handicapped license plate. The I.A.B. agreed and denied the claim.
INJURY RESOLVED & TREATMENT DENIED:
All injuries resolved and all narcotic treatment denied.
Newton v. Comfort Keepers (pdf) - In this case, we acknowledged liability for some period of total disability as well as certain injuries but argued that her pain management doctor's treatment was unwarranted, that total disability should be terminated and that all injuries had resolved so that there could never be any future liability. The I.A.B. agreed that all injuries resolved. It also held that the pain management physician knowingly disregarded our subpoenas issued to him, shredded medical records we had requested and failed to comply with multiple regulations for prescribing narcotics.
I.A.B. finds injuries resolved and denies concussion.
Cleveland v. Child Inc. (pdf) - In denying a concussion claim and agreeing that any and all injuries resolved, the I.A.B. held, "Just because symptoms either develop or worsen after a work accident does not necessarily mean such symptoms are the result of a work accident."
Medical science and testimony proves injury resolved.
Foote v. Child Inc. (pdf) - Claimant injured her elbow, neck, mid and low back. The dispute was whether her injuries resolved. Claimant testified her pain comes and goes. The I.A.B. found the injuries resolved and held, "If the complaints were consistently present, then a link might be made, but having symptoms that 'come and go' breaks that clear link."
PREVIOUSLY ACCEPTED CLAIM:
Corporate Personhood / Premium Fraud.
Skinner v. Barbutes (pdf) - A Carrier originally accepted liability and paid over $10,000.00. It then discovered that the Employer owned two businesses: One was insured; the other was not. Although Claimant worked for the uninsured company, Employer reported the claim as though he worked for the insured company. Mr. Andrews petitioned to dismiss the Carrier due to the fraud; hold the fraudulent party exclusively liable on the claim; and order the Employer to pay full indemnity to the Carrier for fraud. Our client won on all counts.
Corporate Personhood / Certificate of Insurance.
Rivera v. Final Touch Constr. (pdf) - Claimant was injured during demolition, which was subcontracted to an entity named "Final Touch." The Certificate of Insurance ("COI") listed our client (Markel) as the Carrier. Markel’s policy stated that it insured a sole proprietorship; yet, the COI listed Final Touch as a corporation. Discovery brought to light that the subcontractor owned four "Final Touches": One sole proprietorship and three corporations. We argued that each "Final Touch" needed separate insurance, that our policy only covered the sole proprietorship and that Claimant was not working for the sole proprietorship. Our client won on all counts.
Employer binds Insurer to claim & I.A.B.'s jurisdiction.
Town of Delmar v. Chesapeake Ins. (pdf) - The towns of Delmar, Delaware and Delmar, Maryland had entered into a joint venture through which all policemen, firemen and public works employees (among others) would be considered employees of both towns. The claimant was a policeman injured in the line of duty in Delmar, Delaware. Chesapeake insured Delmar's joint venture but refused to pay if the claimant filed a claim through Delaware's I.A.B.; they would only pay if he filed a claim through Maryland's W.C.C. Mr. Andrews petitioned on behalf of the Town of Delmar and argued that the policy covered Delmar regardless of whether the claim was filed at Maryland's W.C.C. or Delaware's I.A.B. The I.A.B. agreed, ordered Chesapeake to pay Delmar $42,643.68 and held Chesapeake was liable for coverage in Delaware moving forward at the I.A.B.
SECOND INJURY FUND:
State of Delaware assumes coverage for all indemnity.
Pearson v. M.W. Fogarty Inc. (pdf) - In March 2018 the claimant fractured his leg in a motorcycle accident. In November 2018 he fractured the same leg in an industrial accident. Our client accepted liability for the November accident. We petitioned the I.A.B. to order the State's Second Injury Fund to reimburse our client and assume coverage for all future indemnity. We also petitioned to terminate total disability. The I.A.B. agreed on all counts. This saved our client $37,052.54, who was reimbursed all indemnity it had paid to date.
CONTESTED COMMUTATION PAID TO TRUST WITH EMPLOYER REVERSIONARY INTEREST:
Employer commutes all future liability at present value and pays lump sum to trust with reversionary interest.
R & J Construction v. Vidal (pdf) - The Claimant sustained many injuries for which the parties entered into an I.A.B. Agreement. As time progressed, the Employer and Insurer retained our firm to decrease their ongoing exposures in this case. Our solution was to utilize a section of the law that had last been used in 1922. We filed for a contested commutation whose lump sum, after discounted to present value, would be paid to a trust instead of to Claimant. The I.A.B. agreed. Our strategy decreased our clients' costs by $493,630.18 and any amount that remains after claimant's death shall revert back to the Insurer.
Evidence definitively proves that our client is not the proper insurer on a motion to reargue.
Escobar v. DSH Enterprises (pdf) - In this case, a husband and wife owned a construction company as well as its payroll company and employed their daughter to manage human resources for both companies. J.T. Hoover was insured by Harford Mutual who also previously insured DSH Enterprises; however, DSH was now insured by NorGUARD. Harford Mutual alleged that because it previously accepted claims for DSH while the employees were working for J.T. Hoover, that meant NorGUARD could not deny future claims. Mr. Andrews argued that the proper determination of claimant's true employer can only be based on the nature of the employment relationship and the work involved; not on the prior mistakes made by Harford Mutual. The I.A.B. agreed and dismissed the petition against DSH.
INCOMPLETE STATEMENT OF FACTS:
Claimant's failure to provide complete answers on a Statement of Facts leads to dismissal of claim.
Bryan v. L.B. Cleaning Servs. II (pdf) - A Claimant sought recognition of a knee injury and surgery from an industrial accident with our client, an uninsured employer. The Claimant initially provided extremely sparse information on the Statement of Facts filed with his petition, which led Mr. Andrews to file a motion with the I.A.B. to compel complete answers on a new Statement of Facts, which Claimant was to sign. The I.A.B. ordered such in Bryan v. L.B. Cleaning Servs. I (pdf). Although he provided updated answers to comply with the order, his answers remained evasive. After a hearing on the merits, the I.A.B. denied Claimant's petition, dismissed our client for not having employed Claimant and excoriated Claimant for his tactics by holding, "Any claimed harm to Claimant... is Claimant's own fault. If Claimant had been a little more forthcoming as to the factual nature of his claim, this entire hearing might have been avoided."
TESTIMONY STRICKEN ON FAILURE TO PRODUCE:
I.A.B. strikes Claimant's testimony due to failure to provide complete responses to discovery request.
Maggio v. Robin Drive Auto (pdf) - A complete description of the peculiar facts of this case is found under the "Liability Extinguished" section above.
FALSE FIRST REPORT OF INJURY:
Claimants are prohibited to file First Reports of Injury to make a claim before the Industrial Accident Board.
Soriano v. Natural House (pdf) - A Claimant petitioned the I.A.B. on January 27, 2016 after he was allegedly injured by an industrial accident on October 9, 2015. His ability to file the petition was based on a document in the I.A.B.'s file that purported to be "Employer's" First Report of Injury. In reality, Employer was unaware of any injury or accident until the day he received the petition; otherwise, he would have provided medical care for his employee. Discovery showed that the Claimant's attorney had filed the false report as though he was the Employer in order to file a claim. The I.A.B. expunged the false report, allowed Employer to file a true one and perpetually enjoined the Claimant and his attorney from ever filing such reports again as only employers may file them. As this also proved that Employer had no notice for over 90 days from the accident, most liability was extinguished.
TWO-YEAR DEADLINE TO FILE CLAIM:
Claims for personal injury are extinguished if a petition is not filed within two years of accident.
Flagg v. Leeber Ltd. U.S.A. (pdf) - The Claimant initially filed a petition for injuries to his knees that he claimed were the result of an industrial accident on April 27, 2015. He then withdrew his petition only to refile the petition on April 27, 2017. We argued that the refiled petition missed the two-year deadline in which to file the petition by one day. We also argued that 19 Del. C. § 2361(a) was technically a "statute of repose" and not a "statute of limitations" so that the two-year deadline could not be waived and no savings statute could apply. The Industrial Accident Board agreed and dismissed the petition with prejudice.
PERPETUAL INJUNCTION AGAINST CASH ADVANCE LAWSUIT LOAN COMPANY:
Industrial Accident Board perpetually enjoins lawsuit loan company from all further business in the State of Delaware.
Shivani Inc. v. Global Financial Credit (pdf) - The Claimant and her attorney executed an illegal Cash Advance Agreement ("CAA") with Global Financial whereby it would front the costs for Claimant to retain her attorney in return for a cut of whatever money she received. After showing that the entire claim was a fraud in Mohr v. Shivani Inc. (pdf), we petitioned the I.A.B. for a perpetual injunction to prohibit Global Financial from conducting any further business in the State. Four months later Global Financial violated the injunction against another of our clients. Returning to the I.A.B., we had them sanctioned, ordered to pay our firm $10,704.80 in costs, ordered to shut down all operations in Delaware and ordered to notify all claimants from 2002 to present that Global Financial has no right to recover in Wendover Inc. v. Global Financial Credit (pdf). If they violate this order, they shall automatically be held in contempt, fined $250,000.00 and placed into receivership.
CREDIT AGAINST FUTURE BENEFITS AS REIMBURSEMENT FROM THIRD PARTY SUIT:
Industrial Accident Board awards credit against future benefits to reimburse Employer whose rights were not considered during third party settlement.
Righter v. EDS Transport (pdf) - Prior to accepting any liability, our client issued a notice of subrogation lien on January 2017 stating that $0.00 had been paid on the claim but that opposing counsel should contact our client to see if that had changed prior to dispersing any third-party funds. In March 2018 we ultimately entered into a medical only Agreement for limited injuries, which was approved by the I.A.B. In June 2018 our client sent an updated notice of lien to opposing counsel that they paid $6,460.31 in medical bills to be taken into account on any subrogation. Opposing counsel replied that he settled the third party suit one month earlier (without telling us) and because he was unaware of any payments at that time, all funds were dispersed so our client was now entitled to nothing. We argued that our client was entitled to a credit against future benefits for their pro rata share. The I.A.B. agreed and awarded our client $3,890.11 which equated to the pro rata share our client would have received at the third party settlement.
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