The Freibott Law Firm was recently successful in prosecuting a case on behalf of one of our clients, a City of Wilmington police officer who had been employed by the city for 26 years. On July 30, 2017, our client was injured in a work related injury while he was pursuing a suspect in a crime. Because of his injuries, our client was placed on light duty restrictions by the City of Wilmington’s doctor from August 2, 2017 through March 5, 2018. During that time frame, our client was not able to work any overtime hours and was not able to work any extra duty jobs, such as carnivals and sporting events. Accordingly, our client sustained a loss of wage claim between August 2, 2017 and March 5, 2018, the date when our client was able to return to full duty work with no restrictions.
Our firm made a claim for loss of earning capacity between August 2, 2017 and March 5, 2018. The City of Wilmington, however, disputed that claim and argued that due to Delaware law, our client needed to be out of work for three days before any loss of earning capacity claim would be activated. Our client did not miss three days of work and/or was not entitled to receive total disability benefits following the accident. The Industrial Accident Board ruled in our favor and against the City of Wilmington and agreed with our argument that 19 Del.C. §2321 does not bar a claimant from receiving partial disability benefits under the circumstances of the case. The Industrial Accident Board further stated that a plain reading of that section did not refer to any requirement that an injured claimant must first receive total disability benefits before receiving partial disability benefits. Furthermore, as the Industrial Accident Board held, our client’s incapacity in this case, measured by the period during which he was restricted to light duty work only, extended far beyond the seven days from the date of injury.
As a result, the Industrial Accident Board found that our client presented testimony very credibly and awarded him the partial disability benefits in the time frame requested. The Industrial Accident Board also ordered the City to pay an attorney’s fee for the successful presentation of our client’s case. (Tolbert v. City of Wilmington,Hearing No.: 1462941Date of Decision: January 3, 2019)