Innovative Results

CAUSE OF ACCIDENT

IDIOPATHIC FALL:  Claim is denied when accident did not arise "out of" employment.  

Norris v. Willis Chevrolet (pdf) - Claimant alleged that walking down a step at work caused her right knee to dislocate.  We argued that while the accident arose "in the course of" employment it did not also arise "out of" her employment.  Rather, she had a congenital condition that made her prone to such dislocations.  Employer won on all counts.


UNEXPLAINED FALL:  Claim is denied when accident did not arise "out of" employment.  

Morales v. State of Delaware (pdf) - Claimant fainted at work and petitioned the I.A.B. for compensation.  Mr. Andrews argued that while the accident arose "in the course of" employment, it did not also arise "out of" employment.  It happened at work  with no connection to her job.  The State won on all counts.


NO INDUSTRIAL ACCIDENT:  Compensation denied if injury not caused by accident that arose out of and in the course of employment.

Stone v. Murry Trucking (pdf) - Claimant alleged a neck injury after an industrial accident.  He attempted to submit Employer's First Report of Injury ("EFRI") into evidence to prove an accident occurred.  We argued that an EFRI can never be used as evidence against employers.  The I.A.B. agreed and denied the claim, finding there was no industrial accident.

NATURE OF INJURY

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 over the next 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 again in Hamilton II (pdf).  His claim was denied a third time after he appealed to the Superior Court in Hamilton III (pdf).


EXTENT OF INJURY:  Discovery of a pre-existing condition renders treatment unrelated.

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 for total disability or ankle surgery.  Our client won on all counts.


ADJACENT DISC DISEASE:  Claim for adjacent disc disease denied as unrelated to claim.

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.

COVERAGE DENIAL

UNRECOGNIZED CLAIM:  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 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.


PREVIOUSLY ACCEPTED CLAIM: Corporate Personhood / Premium Fraud.

Skinner v. Barbutes (pdf) - A Carrier originally acepted compensability 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.

EMPLOYMENT STATUS

PROPER EMPLOYER:  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":  Claimant's selling illegal drugs is "employment" to deny liability for same reasons bootlegging was "employment" during the Prohibition Era.  

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" so as to terminate all liability.

FRAUD

EMPLOYEE FRAUD:  Agreement voided ab initio due to Claimant's fraudulent inducement 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.  Our client won on all counts.


EMPLOYEE FRAUD:  Complex fraud discovered and indemnity awarded to Employer.

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.


EMPLOYEE FRAUD:  Indemnity ordered based on fraud against Employer and the I.A.B.

Bailey v. XPress Nurses (pdf) - Claimant sprained her wrist while working for our client and collected ongoing total disability.  We then discovered that she had been working full duty for another employer the whole time.  We immediately petitioned to terminate the Agreement for fraud, have her reimburse all money fraudulently obtained and have her referred for criminal proceedings for defrauding the I.A.B. itself. Our client won on both the civil and criminal fraud.


EMPLOYEE FRAUD:  Agreement voided ab initio due to fraudulent inducement with referral to Fraud Bureau 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 and successfully voided the entire Agreement for fraud.


EMPLOYER FRAUD:  Full indemnity to Insurer ordered based on an Employer's premium fraud.

Skinner v. Barbutes (pdf) - A complete description of the peculiar facts of this case is found under the "Coverage Denial" section above.


IMPAIRMENT AND DISABILITY

CLAIM RESOLVED:  I.A.B. finds 0% impairment and extinguishes all future liability.

Patille v. Del-Mar-Va Staff'g (pdf) - The parties had previously entered into three separate Agreements acknowledging a limited amount of medical benefits for RSD (chronic regional pain syndrome) to the right hand.  The Agreements stated that any "RSD fully resolved."  Over a year later, Claimant petitioned for 30% permanent impairment to her right hand.  We argued that she had "0% impairment" as if the accident never occurred; pointing out that her complaints of "excruciating" pain in her right hand were contadicted by her driving stick shift to the hearing.  The I.A.B. agreed, denied the petition and extiguished future liability.


CLAIM RESOLVED:  Employer hires one of Claimant's treating physicians as Employer's expert for finding that all injuries resolved.

Cannedy v. GEM Ambulance (pdf) - Claimant alleged ongoing injury to her knee after a "lifting incident."  Although she admitted to a prior knee injury, she denied previously treating for such within the past decade.  Based on what Claimant ultimately sought from this claim, Employer's exposure was over $180,000.00.  We argued that any injury was short lived and resolved so that Claimant returned to her baseline normal status as she was prior to accident.  We retained one of her treating providers to testify for Employer.  The I.A.B. agreed.  Claimant had made a complete recovery, which precluded all future exposure on this claim.  


ALL DISABILITY TERMINATED:  I.A.B. finds Claimant returned to pre-accident status post surgery to terminate compensation 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.  At hearing, we proved that his pain was now the same, or better, than it had been prior to the accident when he was able to work full time.  The I.A.B. also agreed that a Functional Capactity Evaluation was not mandatory in Delaware in order to prove return to full duty work without restriction.

PIONEERING DECISIONS

DISCOVERY

INCOMPLETE STATEMENT OF FACTS:  A 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."

FIRST REPORT OF INJURY

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.

STATUTE OF REPOSE

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 Industiral Accident Board agreed and dismissed the petition with prejudice.

COMMUTATION

CONTESTED COMMUTATION WITH PAYMENT TO TRUST:

Employer succeeds on a petition to commute all future liability at present value and pay lump sum to trust with reversionary interest to Insurer.  

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.