September 2019

Rimmer Pulls Rabbit Out of Hat Surgery Denied!

In Kimberly Eroh v. State of Delaware, IAB Hrg. No. 1451901 (Aug. 1, 2019), the claimant had an acknowledged work accident resulting in a meniscal tear for which Dr. Palma performed repair surgery. Following that surgery, the claimant treated with gel injections, and ultimately had total knee replacement surgery with Dr. Rubano. Claimant filed a Petition seeking payment of the TKR surgery.

The Board denied the claimant’s Petition accepting the testimony of employer’s expert, Dr. Horenstein over that of Dr. Rubano, noting that the claimant had a pre-existing, symptomatic knee osteoarthritis and that the work accident only caused a discrete injury to the medial meniscus, successfully repaired. The surgeon, Dr. Palma, had confirmed complete resolution of meniscal symptoms post-operatively. Subsequent treatment focused on the pre-existing, symptomatic osteoarthritis. Even Dr. Rubano’s own records noted that the knee replacement was done due to the osteoarthritis, not the prior meniscal injury. Therefore, the Board held that the work accident and meniscal injury did not accelerate the need for total knee replacement surgery.

Should you have any questions concerning this Decision, please contact Bill Rimmer, or any other attorney in our Workers’ Compensation Department.


New Beginnings
Lysa Kaminski, legal assistant, is proud to say that she is 25 days smoke free! Lysa decided to put the cigarettes down for her health quiting basically cold turkey. Keep it up Lysa!!

Addition to the Family
Lauren Allen, finance department, and her husband Jake are excited to welcome Brewtus, a Huskador puppy! Brewtus is coming home in October to join his “brothers” Otis, (Great Dane) and 3 month old, Crew Jacob (human). Welcome to the family Brewtus!

Heckler & Frabizzio’s annual employee picnic was on Thursday, August 22nd. We had a dessert contest and a corn-hole tournament. Jamie Debbrecht won the dessert contest with her mouth watering caramel brownies. Sharon Arlington and Anthony Frabizzio took the win in the corn-hole tournament. It was a fun day spent with our co-workers and their families!

Employee Had No Good Cause to Quit

Plaintiff was employed with defendant from 2008 until she voluntarily left in October of 2018. Plaintiff alleged she was promised an all-expenses paid trip by defendant and a $1.00 per hour raise on her tenth year anniversary. Defendant disputed plaintiff’s claim. There was no written agreement. To resolve the issue, Defendant paid plaintiff $3,000.00 in lieu of a trip and offered a 25 cents per hour raise. The raise was effective in plaintiff’s September 2018 paycheck. Plaintiff resigned after receiving this check and subsequently filed for unemployment.

Plaintiff’s unemployment claim was denied by the Claims Deputy. However, the Appeals Referee reversed the decision, finding a substantial reduction in compensation from the original agreement of hire had occurred. In addition, it was concluded that the Defendant made a substantial deviation from the terms of employment giving the Plaintiff “good cause to quit.”

Good cause is established where: (i) an employee voluntarily leaves employment for reasons attributable to issues within the employer’s control and under circumstances in which no reasonably prudent employee would remain employed; and (ii) the employee first exhausts all reasonable alternatives to resolve the issues before voluntarily terminating his or her employment.

The Court found that the plaintiff leaving her job for the reasons stated was not something “no reasonably prudent employee” would do. Therefore, the Board’s decision was reversed and plaintiff’s claim was denied.

Seaford Internal Med., LLC v. Sandoval, 2019 Del. Super. LEXIS 334 (Del. Super. Ct. July 15, 2019).

Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.


The Delaware Superior Court was again called upon to assist in the determination of PIP eligibility. This time, the alleged injury occurred at a car wash when the Plaintiff stepped into a drainage hole while cleaning his vehicle.

The Delaware Superior Court was again called upon to assist in the determination of PIP eligibility. This time, the alleged injury occurred at a car wash when the Plaintiff stepped into a drainage hole while cleaning his vehicle.

The Plaintiff commenced litigation for benefits under Delaware’s PIP statute, 21 Del. C. § 2118, essentially alleging the vehicle was an active accessory in causing his injury. The Defendant Insurer disagreed and moved for summary judgment arguing the vehicle was simply a mere situs to the injury.

The Delaware Superior Court applied the two-part PIP eligibility test established by prior precedent requiring the Plaintiff to be an ‘occupant’ of the vehicle (National Union Fire Insurance Company v. Fisher) and the accident to involve a motor vehicle (Kelty v. State Farm Mutual Insurance Company).

The Court determined that the Plaintiff was an ‘occupant’ of the vehicle because he was within a reasonable geographic perimeter of the vehicle at the time of the accident. The Court specifically referenced the liberal construction of the occupancy standard that includes entering, exiting, touching, or being within a reach of the vehicle. However, the Court was not persuaded that the accident ‘involved a motor vehicle’ or that the vehicle was an ‘active accessory’ in causing the Plaintiff’s injuries. No facts were established that supported the argument that the Plaintiff had to clean his vehicle in order to continue using it. Instead, the primary reason the Plaintiff fell and injured himself was because of a drainage hole in the self-serve wash bay. In granting the Defendant’s Motion for Summary Judgment, the Court held that the Plaintiff’s vehicle was not more than the mere situs of the injury.

For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.

Lesniczak v. State Farm Mut. Auto. Ins. Co., 2019 Del. Super. LEXIS 413 (Aug. 26, 2019).