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Results

  • Petition to Terminate Ongoing Receipt of TPD Benefits Granted on Basis that Claimant Voluntarily Removed Himself from the Workforce

    The Industrial Accident Board (IAB) granted our petition to terminate the ongoing receipt of temporary partial disability (TPD) benefits on the basis that the claimant had voluntarily removed himself from the workforce. The claimant was a correction officer who suffered head injuries in an altercation with an inmate. He was out of work for a time and eventually released to return to work on modified duty. His restrictions were permanent and, because they could not be accommodated by his employer, he was placed on TPD. After more than a year with no indication of an attempt to return to the workforce, we challenged his ongoing entitlement to receive TPD. We worked with the employer to obtain documentation regarding the claimant’s job search (or lack thereof), other sources of income (pension, Social Security) and recreational/social activities since he had been separated from employment. In addition, we put forward both medical and vocational expert testimony at the hearing. As a result, the IAB reasoned that the claimant was able to work in a medium-duty job, that jobs were available within his restrictions, the he had conducted a minimal job search since his work release more than a year and a half earlier, and that his description of his daily activities was consistent with a person content with a retirement lifestyle rather than someone who intended to continue to work. Accordingly, he was no longer entitled to wage replacement benefits.

  • Petition to Terminate Temporary Partial Disability Benefits Granted

    We were successful in having our petition to terminate the ongoing receipt of temporary partial disability benefits granted on the basis that the claimant had voluntarily removed himself from the workforce. The Industrial Accident Board reasoned that the claimant was able to work in a medium-duty job, that jobs were available within his restrictions, the he had conducted a minimal job search since his work release more than a year and a half earlier, and that his description of his daily activities was consistent with a person content with a retirement lifestyle rather than someone who intended to continue to work. Accordingly, he was no longer entitled to wage replacement benefits.

  • DELAWARE SUPREME COURT AFFIRMS THE DECISIONS OF THE IAB AND SUPERIOR COURT, HOLDING THAT AN EMPLOYER CORRECTLY PAID FOR KETAMINE INFUSION TREATMENT IN ACCORDANCE WITH THE DELAWARE FEE SCHEDULE

    The claimant injured her right wrist in 2016 while working as a teacher for the State. Her injury eventually developed into complex regional pain syndrome (CRPS) involving multiple extremities. From 2017 to 2021, the State paid for 23 ketamine infusion treatments to treat the claimant’s CRPS. The treatment was rendered by an out-of-state provider. In 2019, the State contracted with a new bill-review company that paid substantially lower amounts than was previously paid for the same treatment. The claimant filed a petition that alleged these lower payments were insufficient and inconsistent with Delaware law. The Industrial Accident Board determined that the payments made by the State were correct under the Delaware Workers’ Compensation Act’s health care payment system and Fee Schedule. The Superior Court affirmed the decision. The claimant appealed to the Delaware Supreme Court, arguing that the Board failed to correctly apply the Act and Fee Schedule regulations, as interpreted in the Superior Court opinion Delaware Veterans Home v. Dixon. Specifically, the claimant alleged that the Board failed to assess the adequacy of medical billing codes by referring to resources from the American Medical Association or the National Correct Coding Institute. The Supreme Court rejected this argument. The claimant bore the burden of proving whether the billing codes used by the provider for the ketamine infusion treatments were insufficient or inaccurate. The resources cited by the claimant were, indeed, referenced in the Fee Schedule administrative regulations, but no evidence was presented by the claimant at the Board hearing. It was neither the employer’s nor the Board’s responsibility to present that evidence. Therefore, there was no legal error. The court further advised that the Act’s Oversight Panel is the proper forum to determine whether specific billing codes provide reasonable compensation for particular treatment, which was a secondary argument advanced by the claimant. The decisions were affirmed.

  • Industrial Accident Board grants motion for reimbursement.

    We succeeded in having the Industrial Accident Board grant reimbursement of an amount of total disability benefits tendered that were offset by contemporaneous short-term disability payments. The Board denied the claimant’s motion to compel production of paystubs that he claimed were required to determine the appropriate offset amount, if any. The Board reasoned that the information provided was sufficient to calculate the overpayment amount and that the Fair Labor Standards Act did not require the pay records be kept in any particular form.

  • Defense prevails before the Industrial Accident Board.

    The claimant alleged several injuries. The Board denied the claimant’s petition for additional compensation due on all counts, and granted the employer’s petition for review to terminate total disability benefits. Specifically, the Board concluded that (1) a proposed left ankle reconstruction surgery was not reasonable and necessary, (2) there was insufficient evidence to prove a compensable left knee injury, (3) there was insufficient evidence to prove a compensable lumbar spine injury and (4) the claimant was capable of unrestricted return to work. 

  • Successful defense of workers’ compensation case before the Delaware Supreme Court.

    ​In its order, the Supreme Court affirmed a decision of the Superior Court that had affirmed a Board decision regarding the compensability of travel expenses for trips to and from medical appointments. The claimant had petitioned for parking and toll expenses incurred during her trips to visit a doctor at University of Pennsylvania from her residence in Dover, Delaware. Although the amounts in question were low, the case is significant as it potentially applies to every Delaware workers’ compensation case. Specifically, the court agreed with the employer’s arguments that the plain language of the applicable Delaware statute provides that mileage expenses are to be reimbursed by the employer for travel to and from compensable medical appointments.

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Thought Leadership

Appellate Division Affirms Dismissal of Legal Malpractice Counterclaim Against Martin Law Firm

In Martin v. Loury, 2026 N.J. Super. Unpub. LEXIS 1617 (App. Div. July 15, 2026), Martin Law Firm represented Kirk Loury in an employment matter Mr. Loury filed against his former employer, Concord Equity Group Advisors LLC (“Concord”). The allegations included, among other things, that Loury was not fairly compensated for his employment with Concord. After a bench trial finding in Loury’s favor, the Appellate Division remanded this matter in February 2016 for a second trial. During the second trial, Concord CEO, Lee Argush, testified to lower compensation estimate than first trial. On remand, the second trial judge awarded Mr. Loury the same damages as the first judge, finding Mr. Argush not credible. After the findings during the second trial, Martin Law Firm filed an action against Mr. Loury to recover legal fees and costs of representing Mr. Loury in a second bench trial and Mr. Loury filed a counterclaim against Martin Law Firm for legal malpractice, alleging he should have received an even higher award in the second bench trial. In this allegation, Mr. Loury, through his expert, claimed that Martin Law Firm should have recalled Mr. Loury to the stand to rebut Mr. Argush’s testimony to allege an alternative theory of damages. Mr. Loury’s expert admitted that the second judge already rejected Mr. Argush's theory and accepted Loury's damages theory. The trial court barred Mr. Loury’s expert and dismissed Loury's counterclaim with prejudice before convening the collection trial, and the jury ruled in Martin Law Firm’s favor. Mr. Loury appealed the trial court's pretrial rulings barring his liability expert from testifying in support of his legal malpractice counterclaim, denying his motion for summary judgment on that counterclaim, and denying his motion to amend his counterclaim by adding attorney Joseph A. Martin as a codefendant. In affirming the trial court’s decision, the Appellate Division held that the trial court properly excluded Loury’s expert testimony in the counterclaim against Martin Law Firm because the expert could not explain how calling Loury as a rebuttal witness would have increased damages when the second judge already rejected Mr. Argush's testimony and accepted Loury's damages theory, making the expert’s causation opinion speculative. The Appellate Division also held that the trial court properly denied Mr. Loury's summary judgment motion on his malpractice counterclaim because reasonable minds could differ on whether Mr. Martin's alleged failures would have changed the second judge's damages award, given the judge already found Mr. Argush not credible, creating genuine factual disputes precluding summary judgment. Also, the Appellate Division held that the trial court properly denied Loury's May 2023 motion to add Joseph Martin individually because the statute of limitations expired in February 2022, six years after the 2016 appellate remand when Mr. Loury incurred new legal costs, and relation back did not apply because Mr. Loury knew Mr. Martin's identity throughout and strategically chose to sue only Martin Law Firm in his 2019 counterclaim.