Fail Safe . . . & The Failure of a Section 2353(b) Forfeiture Defense in Delaware

You gotta love Nick Krayer.  He initially came to us as “new hot guy” and then he was “newly engaged guy” and now he is a blogger wannabe and Gary Nitsche protégé.  Heck, he may even be married by now . . . Big thanks to Nick for this week’s post which is instructive on the Section 2353(b) forfeiture defense involving failure to follow a safety policy of locking a machine before working on it — in this case resulting in an amputation injury. Frankly, Section 2353(b,) which talks about a forfeiture for recklessness and includes the failure to use a safety device, is in my mind much like the Section 2353(b) intoxication defense.  It exists on the books, but it doesn’t have much bite and is never raised by the faint of heart.

Nick’s case is Robert Strong v. Allen Harim Foods, IAB Hr’g No. 1401489 (June 12, 2014),  a wonderfully articulated commentary on how this Board panel (Hare and Brady) applied the forfeiture defense and came up lacking (And had Claimant came up “locking”, we wouldn’t even have a case). The Board’s observation was that “Claimant may have acted carelessly or thoughtlessly, but not intentionally, knowingly, purposely and without justifiable excuse.” (I think we have a litmus test here)   And as we all know, negligence on the part of the claimant is not a defense.

So check it out . . . we don’t often see this defense in play, so I agree with Nick that this is one for your research drawer.

Speaking of research, the new DSBA Workers’ Comp Data Base is up and running.  There has been some discussion of a group tutorial for the Comp Section at a future meeting.  The good news is that the majority of original cases (circa 1985 to 2014) have been scanned in, thanks to Larry Kimmel, Sean Gambogi, Heather Long and colleagues.  Going forward, we will be scanning in the recently decided cases as they issue (and as I can keep up with them — which will hopefully be better than I have kept up with my blogging).

It is good to be back, people, and I invite you to submit your cases and your commentary to the Detour & Frolic . . . .

Irreverently yours,

Cassandra Roberts