Thought Leadership

1.    Industrial Accident Board grants continuance but suspends temporary total disability benefits pending rescheduled hearing
Fortt v. Delaware Brick Company, IAB No. 1542958 (Dec. 12, 2024)

The claimant was injured in a work accident on January 16, 2024. On June 7, 2024, the employer filed a Petition for Review (PFR) to terminate the claimant’s ongoing total disability (TTD) benefits, which the Second Injury Fund began paying under 19 Del. C. § 2347(k). 

At the claimant’s request, the October 21, 2024, hearing was continued to December 16, 2024, due to scheduling issues with his medical expert. In November 2024, the claimant’s medical expert’s cancelled a December 12, 2024, deposition for personal reasons. The employer’s medical expert was deposed as scheduled on December 4, 2024. On December 5, 2024, the claimant sought a second continuance, arguing his expert’s testimony was essential and the cancellation beyond his control. 

The employer opposed, citing prejudice from delay, ongoing TTD payments, and risk of “stale” testimony. While the Second Injury Fund was currently paying those benefits, the employer was concerned they may have to repay those benefits once the petition was resolved. The Fund supported these arguments. 

Although the Industrial Accident Board granted the claimant’s request for a continuance, it also suspended TTD benefits and froze the evidentiary record. The Board relied on Section 2348 (c) and (h) of the Workers’ Compensation Act, which states that petitions must be heard within 120 days of the Pre-Trial Conference notice, with extensions granted only for “good cause” and/or “extraordinary circumstances.” Accordingly, a doctor’s voluntary unavailability raises the question as to whether it qualifies as an unforeseen circumstance. Ultimately, the Board found that, although the doctor’s choice was not out of his control, the claimant had no influence over the matter, making the continuance appropriate.

In response to the employer’s concerns about prejudice, the Board deemed it reasonable to freeze the evidentiary record in consideration of case management procedures and to ensure the integrity of the employer’s testimony as if the hearing occurred on the original date. The Board determined that remedial action was necessary to minimize harm to both the employer and the Fund. Consequently, the Board ordered that claimant’s receipt of TTD benefits be suspended from the date of the rescheduled hearing on December 16, 2024, until the new hearing date, which was approximately 60 days later.
 

2.    Industrial Accident Board finds that claimant acted in self-defense; did not forfeit right to workers’ compensation benefits based on standards established by 19 Del. C. § 2353(b)
Liriano v. Delaware Transit Company (DART), IAB No. 1550708 (Feb. 24, 2025)

While working as a bus driver for the employer, an altercation transpired between the claimant and a drunk bystander, which was captured on video footage with limited audio. The footage showed the bystander leaning against a pole next to the claimant and asking for information. Unsatisfied with the claimant’s response, the bystander separated himself for a brief period and followed a second bus driver, Wayne Gardner. During this exchange, the bystander touched Mr. Gardner on the arm, prompting Mr. Gardner to swat the bystander’s hand away before continuing on his way. 

The bystander then reapproached the claimant, at which point the claimant is seen backing away from him with his hands in the air. The bystander is then seen standing chest to chest with the claimant, which led the claimant to push the individual away three times, resulting in a physical altercation. Another bus driver intervened to break up the altercation. The claimant reported the incident to the dispatch, stating that it would likely be held against him. The bystander later approached the bus to apologize, and he admitted that he was intoxicated. 

The employer argued that the claimant forfeited his workers’ compensation benefits under Section 2353(b) of the Workers’ Compensation Act because he was the aggressor in the altercation. The employer claimed that the claimant acted with deliberate and reckless indifference to the danger inherent in such a physical altercation. The employer cited the video footage, directives that instruct drivers to walk away/retreat from conflict and the claimant’s acknowledgement that he might be held responsible for the event. 

The claimant contended that he acted in self-defense. He relied on the video evidence, asserting that he would not have been able to safely retreat. 

The Industrial Accident Board determined that the claimant had indeed acted in self defense. The Board mentioned that their review of the video contradicted the employer’s narrative and supported the claimant’s testimony that he tried to avoid confrontation. They noted that self-defense was justified because the unknown male continued to pursue the claimant and ultimately stood “chest to chest” with him. The Board further noted that the employer had not disciplined the claimant for misconduct or violations of the workplace violence policy following the incident, which was interpreted as an indication that they also recognized the claimant had acted in self-defense. As such, the employer’s petition was denied. 

3.    Superior Court reverses Industrial Accident Board, holding sole proprietor properly elected workers’ compensation coverage 
Bayly v. Red House Motors, 2025 WL 1305851 (Del. Super. May 6, 2025)

The claimant, the owner of Red House Motors, the employer, was assaulted by an employee on June 16, 2021, resulting in serious injuries. At the time of the assault, a workers’ compensation policy covered workplace injuries for the employer’s employees. The claimant had asked to be covered by the policy, but the policy and annual audits conducted by the insurance carrier did not inform the claimant that he was uninsured for his own workplace injuries. Despite this, when the claimant reported the assault, the insurer informed him that he was not covered under the policy, issued a partial refund for his premiums, and subsequently canceled his policy. 

The claimant filed a petition for benefits, which was denied by the Industrial Accident Board, which concluded that the claimant, as an experienced businessperson, was aware that he needed to elect workers’ compensation coverage for himself but had not done so. While not directly stated, the Board seemed to believe that the claimant needed to elect workers’ compensation coverage either in writing or on the insurer’s prescribed form. 

The Superior Court identified two flaws in the Board’s reasoning. First, regarding the workers’ compensation policy, the court noted that the policy included a section entitled “Who Is Insured” and the Extension of Information Page, which specifically listed the claimant as a “Named Insured.” Second, concerning the claimant’s status as an experienced businessperson, the court found that the expertise in insurance matters rested with the insurer, not the claimant. 

The court also found it concerning that the insurer had not informed the Board that, although a sole proprietor must affirmatively elect personal coverage under a workers’ compensation policy, this does not need to be done in writing or on a prescribed form. The court believed the Board had incorrectly assumed that the claimant needed to make his election in writing or using a prescribed form. According to the court’s interpretation of 19 Del. C. § 2306(b) and 19 Del. C. § 2308(b), the claimant was not required to request coverage in writing or on a specific form. Furthermore, neither party disputed that the claimant had requested to be covered. As a result, the court determined that, under these statutes and the insurer’s own procedures, the claimant properly elected coverage. The Superior Court reversed the Board’s decision and instructed the Board to find that the claimant was covered under the workers’ compensation policy. 

4.    Superior Court dismisses negligence claims but allows intentional tort action to proceed in electrical explosion case 
McGuckin v. PBF Energy, Inc., 2025 WL 2223109 (Del. Super. Aug. 5, 2025)

On January 24, 2023, the claimant was instructed by his manager to manually reset a circuit breaker for a machine that controls the speed and torque of an electric motor by varying frequency and voltage of its power supply. While doing so, an electrical explosion occurred, resulting in injuries to the claimant. After receiving benefits under the Workers’ Compensation Act, the claimant filed several claims against the employer, including negligence, recklessness, intentional tortious conduct, strict products liability and loss of consortium. The employer moved to dismiss the complaint, asserting the Industrial Accident Board has exclusive jurisdiction over all claims that involve work-related injuries. 

Both parties referenced Segura v. M Cubed Tech., Inc., 2019 WL 1504048, to support their arguments. In Segura, an employee was injured when a transformer switchbox exploded. After receiving workers’ compensation benefits, the employee filed suit against the employer, alleging negligence and/or intentional conduct. The employer moved for a dismissal, and the court dismissed the negligence claim but allowed the intentional conduct claim to proceed. The court explained that while the workers’ compensation exclusivity doctrine bars suits by employees against their employers for work-related injuries based on negligence, it does not preclude claims involving intentional conduct by the employer. 

Here, the employer argued that the claimant had merely “repackaged” negligence allegations with labels of intentional conduct; however, the court disagreed and found that the claimant provided adequate facts to support his intentional tort claims. Therefore, the court dismissed the negligence claims against the employer but allowed the intentional tort claim to proceed. 

5.    Delaware Supreme Court allows workers’ compensation insurer to pursue subrogation against employee’s UIM recovery, subject to Horizon Services v. Henry, 304 A.3d 552 (Del. 2023) (Henry II)
ProAssurance Grp. d/b/a Eastern Alliance Ins. Co. v. Manz, 2025 WL 3124822 (Del. Nov. 7, 2025)

After the claimant was involved in a work-related motor vehicle accident, she filed a workers’ compensation claim. Ultimately, the claimant received a total of $454,070.72 from the workers’ compensation carrier, which included payments for medical expenses, lost wages and a lump sum intended to waive future entitlements to workers’ compensation benefits. The settlement documents included a clause granting ProAssurance, the workers’ compensation carrier, a lien against any recovery the claimant might receive from any entity, including an insurance carrier, as a result of the work accident. 

In addition to pursuing workers’ compensation benefits, the claimant sought compensation from the driver responsible for her injuries and pursed a claim against her employer’s Underinsured Motorist policy (UIM). The UIM policy contained a non-duplication provision, stating that it would not cover any element of loss for which a person is entitled to receive payment through workers’ compensation benefits. An arbitrator awarded the claimant $215,000 for her UIM claim, and ProAssurance then asserted a lien against the UIM award pursuant to 21 Del. C. § 2326(e). 

The claimant filed a declaratory judgment action in Superior Court, seeking an order that would exempt her UIM award from ProAssurance’s lien. She argued that the non-duplicative clause in the UIM policy entitled her to funds that were not already compensated by ProAssurance for her workers’ compensation claim. ProAssurance countered that it was entitled to the claimant’s subsequent UIM recovery. The Superior Court ruled in favor of the claimant. 

The Delaware Supreme Court discussed workers’ compensation carriers’ right to subrogation under 21 Del. C. § 2326(e) for boardable damages and found that non-boardable damages, which include but are not limited to those covered by Personal Injury Protection (PIP) policies, are not subject to subrogation. The Supreme Court then reversed and remanded the case with instructions to determine what amount of the claimant’s UIM award is “boardable” and subject to subrogation.

6.    Revised Workers’ Compensation Act: direct deposit
19 Del. C. § 2344.
    
Amendments to 19 Del. C. § 2344, which went into effect on June 30, 2025, reflect current practices and technology, including enabling workers’ compensation payments to be made by direct deposit. 

7.    Revised Workers’ Compensation Act: penalties, including incarceration
19 Del. C. § 2386(b)

Section § 2386 of the Workers’ Compensation Act is titled “Violations by Insurers or Self-Insurers; Penalties.” Amendments to 19 Del. C. §2386(b), which went into effect on June 30, 2025, provide for mandatory fines and/or imprisonment for not more than 90 days. Section 2386(b) now reads: 

(b) Whoever in this State does any of the following shall be fined not less than $100 nor more than $1,000 or imprisoned for not more than 90 days, or both. 
(1) Acts or assumes to act as an agent in any capacity whatsoever for any insurance corporation, mutual association or company or interinsurance exchange, which is not authorized to do business in this State, or if such authority to do business in this State has been suspended, so acts or assumes to act while such suspension is in force. 
(2) Neglects or refuses to comply with any obligatory provisions of this section. 
(3) Willfully makes any false or fraudulent statement of the business or condition of any such insurance carrier or false or fraudulent return, shall be fined not less than $100 nor more than $1,000 or imprisoned for not more than 90 days, or both.

8.    Revised Workers’ Compensation Act: assessments for administrative expenses or insurance carriers
19 Del. C. § 2392(c)

Amendments to 19 Del. C. § 2392(c), which went into effect on June 30, 2025, allow the Office of Workers’ Compensation to increase the reimbursement percentage for activities from 66.6% to 100%, ensuring that the inspection and safety functions of the Division of Industrial Affairs are fully funded, as they were previously only partially covered. Insurance carriers will be responsible to pay the assessments imposed by this section. The annual budget process sets caps or spending limits on these appropriated special funds each year. 

9.    Amendment to increase reimbursement rates for workers’ compensation medical services
19 Del. C. § 2322B(c)

This amendment permits a permanent one-time increase of 3% in aggregate workers’ compensation medical expenses to correct Evaluation and Management Code reimbursements, which have fallen below the Center for Medicare & Medicaid Services’ rates. The amendment goes into effect on January 31, 2026.

10.    New workers’ compensation rates

The Department of Labor announced that the new workers’ compensation rates effective July 1, 2025, establish an average weekly wage of $1,386.46. Accordingly, the maximum weekly compensation rate is $924.31, and the minimum weekly compensation rate is $308.11. 

_{What’s Hot in Workers’ Comp, Vol. 29, No. 12, December 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}