Heckler & Frabizzio’s annual employee picnic on Thursday, August 22nd. Our Firm will be closing at 11:00 a.m. and will reopen the following day Friday, August 23rd. We are looking forward to a fun day spent with our co-workers and their families!
National Workers’ Compensation Defense Network Annual Conference
Heckler & Frabizzio, a proud member of the NWCDN, will be attending the annual conference in Chicago on September 25th & 26th. Focusing on challenges and trends in workers’ compensation.
WORKERS’ COMPENSATION LAW
6th Edition of AMA Guides Finally Gains Some “Traction” Over the 5th Edition
In Kathy Thomas v. City of Wilmington, IAB Hrg. No. 1417741 (July 30, 2019), the Claimant filed a Petition seeking permanent impairment to her leg associated with a compensable total knee replacement followed by a manipulation under anesthesia. The dispute at Hearing was whether the 5th versus 6th Edition of the AMA Guides was controlling for rating permanency. The 6th Edition provided a lower rating. To date, the Board had repeatedly refused to indicate any preference for one version of the Guides over another, indicating that they would decide on a case by case basis.
The Board accepted the opinion of Defense Expert, Dr. Piccioni, over that of Claimant’s Expert, Dr. Rodgers, commenting that Claimant and Dr. Rodgers’ attempts to embellish her symptoms and minimize her post-operative recovery were not credible considering her treating surgeon’s records that documented a good outcome with minimal limitations.
The Board then commented that “The Board is well aware that the Claimant’s Bar does not favor the 6th Edition solely for the reason that impairment ratings are lower which in turn translates to a lower financial recovery for claimants. The Board finds that in cases such as this one involving a specific surgical procedure the 6th Edition provides more accurate and equitable ratings that account for favorable surgical outcomes than the 5th Edition. In those cases, and cases involving prosthetics, use of the 6th Edition would be preferred.”
The Board also noted that Dr. Rodgers’ testimony on other states’ law was “misleading and disingenuous” because Dr. Rodgers led the Board to believe that another state had rejected the 6th Edition outright, when in fact Dr. Rodgers had testified in another matter only six months earlier that he was aware that the “rejection” had nothing to do with the merits of the 6th Edition, and was actually due to an unrelated state constitutional issue.
Should you have any questions regarding this Decision, please contact Greg Skolnik or any other attorney in our Workers’ Compensation Department.
Michael Pedicone, attorney, is proud of his daughter, Renee, who will begin her career as a math teacher at Saint Elizabeth High School in Wilmington, Delaware this fall.
Nicholas Bittner, attorney, attended the Ehlers-Danlos Society Global Learning Conference in Nashville, Tennessee, where he attended lectures on a wide range of medical topics including chronic pain, neurological conditions, and psycho-social factors relating to chronic illness. While Loki (the cat) did not attend he still managed to get an official name tag from the conference!
Say, “I Do”
Patrick Rock, Partner, and his family traveled to Maine where they attended Patrick’s niece’s wedding. Afterwards, the Rock family also visited relatives and had a great time camping!
Academic Achievement Award
Jamie Debbrecht, Paralegal, attended the McGhee Tyson Air National Guard Base in Tennessee for Airman Leadership School (ALS). ALS is a 5 week course designed to get Airmen prepared for the non-commissioned officer (NCO) tier, qualifying for a promotion to the rank of E5 (Staff Sergeant). The course is heavily weighed on peer reviews from your fellow Airmen and academics, as well as demonstrating the role of a supervisor on and off duty. Jamie was taught critical thinking and problem solving in a military environment, decision making strategies as an Air Force supervisor, and how the Air Force Core Values of integrity, service before self, and excellence are vital to accomplishing the mission. Upon graduation, Jamie was awarded the Academic Achievement Award, standing out from 137 other Airmen for having the highest grade point average during the 5 weeks in the course. The Award is the second highest to be presented to an Airman. Jamie will be promoted to Staff Sergeant in October at Dover Air Force Base. This is a huge accomplishment, great work Jamie and thank you for your service!
Time Not On Your Side
Plaintiff was employed with Defendant from 2005 until his termination in May of 2016. In March of 2016, Defendant received an anonymous complaint that Plaintiff’s subordinate was being paid for time not actually worked. The time records at issue were all entered under Plaintiff’s name. Plaintiff could not provide an explanation for the inaccurate time entries. Consequently, Plaintiff was terminated for engaging in theft on behalf of his subordinate. Once the investigation was completed, the subordinate was terminated as well.
Plaintiff filed a complaint asserting he was terminated based on discrimination and retaliation. Plaintiff also alleged due process violations, and breach of the implied covenant of fair dealing and good faith. Defendant moved for summary judgment on all claims.
As for the discrimination claims, Plaintiff alleged that other employees had entered time not actually worked and none of those employees had been terminated. However, Plaintiff failed to identify the alleged similar employees. Plaintiff also alleged that he was called a racial slur and Defendant did not address it. However, the record showed that the Defendant took this claim seriously and fired the wrongdoer for using the inappropriate language.
As for the retaliation claim, the Plaintiff alleged that he was retaliated against for engaging in the protected activity of bringing discriminatory actions to the attention of Defendant. To establish a prima facie case of retaliation, the Plaintiff must provide: (1) he engaged in protected activity, (2) suffered an adverse employment action contemporaneous with or after the protected activity, and (3) there is a casual link between the protected activity and the adverse action. Here, Plaintiff did not identify what protected activity he engaged in and only cited instances of protected activity in 2007 – which the Court found too distant from Plaintiff’s termination to establish a causal link.
As for the procedural Due Process claim, Plaintiff must establish a property interest by proving that he was deprived of a legally cognizable property interest in his continued employment. However, Plaintiff was an at-will employee and failed to identify any source of protection for his employment. In addition, Plaintiff asserted that he was deprived of a liberty interest when the Defendant created a false impression of the Plaintiff in the employer community in connection with his termination. Here, there is no evidence that the Defendant took any action to create false information to third parties and reputation alone is not an interest by the Due Process Clause.
Finally, Plaintiff alleged Defendant breached the implied covenant of good faith and fair dealing. The four categories in which a Plaintiff may recover under this covenant are: (1) where the termination violated public policy; (2) where the employer misrepresented an important fact and the employee relied ‘thereon either to accept a new position or remain in a present one’; (3) where the employer used its superior bargaining power to deprive an employee of clearly identifiable compensation related to the employee’s past service; and (4) where the employer falsified or manipulated employment records to create fictitious ground for termination. Plaintiff did not identify which, if any, of these categories he relied on and the Court found that none of the categories permit recovery for the Plaintiff.
The Court found that the Plaintiff did not meet his burden to establish a prima facie case of discriminatory animus or retaliation. In addition, the Court found that Plaintiff had neither a protected property interest in his continued employment nor a protected liberty interest in his reputation. Further, the Court found no reasonable jury would return a verdict for the Plaintiff under the breach of implied covenant of good faith and fair dealing claim. Therefore, summary judgment was granted in favor of the Defendant.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Tyler v. Diamond State Port Corp., 2019 U.S. Dist. LEXIS 124633, (D. Del. July 26, 2019).
LITIGATION CASE LAW
FIVE HOURS HARD TIME CAN CHANGE A MAN
JUST NOT THE CIVIL IMMUNITY STATUTE
The police responded to a domestic disturbance call related to the Plaintiff’s alleged violation of a Protection Order. Upon arrival, the Officer contacted the Justice of the Peace Court to confirm the Order was active and, thereafter, handcuffed and escorted the Plaintiff to the Police Department. Subsequently, the arrest warrant was denied due to the court’s inability to ascertain its expiration time and the Plaintiff was released after five hours.
Upon release, the Plaintiff initiated civil litigation against the Officer and the Police Department alleging theft, illegal arrest, and false imprisonment. The Defendants moved to dismiss the litigation on the grounds that the Plaintiff was not entitled to the requested relief under any reasonably conceivable set of circumstances.
In support of their position, the Defendants argued that the immunity protections, provided by the County and Municipal Tort Claims Act. Codified in 10 Del. C. § 4011, render all governmental entities and their employees immune from tort claims seeking recovery of damages (unless otherwise provided by statute). Further, a law enforcement officer is immune from civil and criminal liability for acts arising out of the officer’s good faith effort to enforce a protective order.
In granting the Defendants’ Motion to Dismiss, the Court found that the Plaintiff failed to sufficiently allege that his claims met a statutory exemption from immunity. Moreover, that the Officer acted in good faith when enforcing the Protection Order and that the Plaintiff’s allegations of theft, which referenced provisions of the Delaware Criminal Code, failed to refer to a cognizable civil cause of action.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Duygun v. Allen, et al., 2019 Del. Super. LEXIS 366 (Aug. 1, 2019).