April 2019

Myrna Rubenstein Professional Support Award
The Firm is proud to announce our very own Ms. Betty O’Shields as this year’s recipient of the Delaware State Bar Association’s Myrna Rubenstein Professional Support Award! Ms. Betty has been working in our Firm’s Finance Department for 27 years. Her passion, dedication and unwavering commitment is admirable. We could not think of a better person to receive this award. Congratulations, Ms. Betty!
Combined Campaign for Justice
Heckler & Frabizzio is honored to participate in the 2018 Combined Campaign for Justice (CJC). The CJC is a fundraiser to support Delaware’s three nonprofit legal aid agencies: Community of Legal Aid Society, Delaware Volunteer Legal Services, and Legal Services Corporation of Delaware. Heckler & Frabizzio has maintained 100% attorney participation in this wonderful fundraiser for over a decade.
Association of Legal Administrators
Firm Administrator Page Hyson has been voted into the First State Chapter’s Association of Legal Administrators as the new head of the communications committee. Ms. Hyson  now sits on the Board of Directors and is excited to begin working on the newsletter and other communications for the chapter. Please check out the new website Ms. Hyson designed on behalf of ALA. Keep up the great work!
YMCA of Delaware
Attorney John Morgan serves on the Board of Directors for the YMCA of Delaware. Mr. Morgan has come to appreciate this organization and the importance of their mission.  The Y is an association of people from all walks of life that strives to cultivate the human potential, self-esteem and dignity within each of us.  The organization focuses on youth development, healthy living and social responsibility. In Delaware, the Y operates 8 full service branches and several other seasonal camps and pools.  This is a particularly exciting time to serve on the Board of Directors because the Y is embarking on a significant new capital improvement project which will ultimately result in a brand new branch facility to open in Middletown, Delaware.  It is anticipated that this new Middletown branch will serve 15,000 people; it will create 350 new jobs and it will represent a $26 million investment in the state.  In addition, the long term benefits of this new branch are amazing – 100+ years of service to come.  Approximately, $500K every year is given back to the community per each location. Improved health outcomes for the state including diabetes and obesity prevention, cancer recovery and water safety all mean reduced health care costs.  Also, this new branch will help further the development of our youngest citizens through leadership programs, school success, civic engagement, preschool and after school camps and programs.  Please contact John Morgan if you have any questions about the YMCA of Delaware or if you would like to contribute to this wonderful organization.  You can also check out their website at YMCADE.org.

March Madness Tournament 
Every year our Firm has a little fun competing with each other in a March Madness pool. We encourage staff and their family members to fill out a bracket. We kicked off this year by having pizza and watching the first game in our conference room. After a few heart breakers and upsets the winner of our March Madness pool was Kiernan Rock, the son of Managing Partner Patrick Rock. Congratulations to Kiernan!
Fun Friday – Easter Egg Hunt
Heckler & Frabizzio hosts “Fun Friday” once a month as a morale boosting event. This month the staff voted to participate in an Easter Egg Hunt! This event will take place on April 18th at our Wilmington office. The objective is to locate the golden egg and collect as many eggs filled with candy in the process. The winner will receive a 1 hour off certificate. We enjoy these events and look forward to having fun with our co-workers.

Board Reminds Dr. Zaslavsky  

 Medical School Lesson:
When You Hear Hoof Beats,  

Think Horses, Not Zebras.
Claimant had a compensable work accident involving the right shoulder. Claimant filed a Petition seeking acknowledgement of a neck condition, and payment of a neck surgery to address an alleged right sided radiculopathy, as recommended by Dr. Zaslavsky. Dr. Zaslavsky provided an unusual causation opinion for the surgery in particular. He acknowledged that the herniation shown in Claimant’s neck by MRI was left sided, but noted that there was a “new study” establishing that herniations to one side of the neck can actually cause radiculopathy on the contralateral side. He felt that the study explained Claimant’s pathology and justified his surgical recommendation.
The Board rejected Dr. Zaslavsky’s opinion. Similar to the medical school idiom urging practitioners to consider obvious answers before arriving at more unlikely possibilities, the Board commented that they felt as though Dr. Zaslavsky was “reaching” for an “innovative” theory to explain Claimant’s symptoms. The defense medical experts provided a much more reasonable and supported theory, that the right upper extremity symptoms were related to the accepted shoulder injury and the left sided herniation was an “incidental” finding. The Board noted that defense expert Dr. Kahanovitz, a spine surgeon, performed a neurological examination with normal findings. Defense expert Dr. Matz, a shoulder specialist, performed an examination that was negative for neurological findings but had multiple positive findings concerning the shoulder. Dr. Matz noted that Claimant’s treating physician for the shoulder, Dr. Kalman, agreed and felt that the symptoms were shoulder related. The Board also felt that it was crucial that a pre-operative shoulder injection resulted in “near complete resolution” of Claimant’s symptoms for a transient period. Finally, the Board criticized the small sample size of Dr. Zaslavsky’s proffered study and noted that both defense experts had testified credibly that this study was not consistent with any accepted treatise or scholarly peer reviewed journals that they had reviewed.
Should you have any questions concerning this Decision, please contact John Ellis, or any other attorney in our Workers’ Compensation Department.
Roberto Rodriguez-Vega v. Amazon.com, Inc., IAB Hrg. No 1451705 (Feb. 15, 2019).


A Tale of Two Actions

In June of 2016, a transformer switchbox located in a manufacturing facility exploded. Plaintiff, an employee of the facility, sustained injuries.
Following the accident, the Plaintiff filed a workers’ compensation petition against the employer and began receiving workers’ compensation benefits. It turns out, one action was not enough. The Plaintiff also initiated civil litigation against the employer, its parent company, and various other Defendants. Therein, the Plaintiff included a separate claim for spoliation of evidence.
The employer and its parent company moved for dismissal contending that the Plaintiff’s common law tort claims were barred by the exclusivity provision of the Workers’ Compensation Statute, codified in 19 Del. C. § 2304, and that spoliation was not recognized as a separate and distinct cause of action under Delaware law. In response, the Plaintiff alleged that the employer and its parent company were liable in tort for their own intentional acts, gross negligence, and the negligence of other employees or contractors.
For the Plaintiff’s tort claim, it was the worst of times. In dismissing all but the intentional tort action against the employer and its parent company, the Delaware Superior Court reiterated the well-established doctrine that an employer who provides workers’ compensation benefits to its employees cannot be sued for negligence, regardless of the degree, including the negligent acts of other employees. Moreover, the Court agreed that spoliation is an evidentiary remedy and does not create a separate cause of action.
For more information on this matter or other legal questions, feel free to contact Amy M. Taylor or any attorney in our Liability Department.
Segura v. M Cubed Techs., et al., 2019 Del. Super. LEXIS 168, at *2 (Apr. 4, 2019).


Discrimination or Inability to Follow Procedures?
Employee’s Age and National Origin Claim Dismissed for Failure to Prove ‘Pretext’
An employee was terminated because, as the employer stated, he failed to maintain routine backups of the computer system, an essential duty of his job. Employee contends he was unlawfully terminated based on his age and national origin. The District Court granted summary judgment in favor of defendant on both counts. The Plaintiff appealed to the Third Circuit Court of Appeals.
Discrimination claims are analyzed under the framework that the Plaintiff first bears the burden of making out a prima facie case of discrimination. If made, then the burden shifts to the employer to articulate a legitimate, nondiscretionary reason for the adverse employment action. If that occurs, the Plaintiff bears the burden of establishing that the employer’s stated reasons were an excuse or pretext for what actually happened.
The Third Circuit Court of Appeals only addressed whether the Plaintiff proved pretext. To show pretext, a Plaintiff must develop some evidence from which a factfinder could reasonably disbelieve the employer’s reasons or believe that an invidious discriminatory reason was more likely than not a motivating cause of the employer’s action. The employee can show pretext by pointing to weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action such that a reasonable factfinder could rationally find them ‘unworthy of credence.’
Plaintiff submitted evidence showing that Defendant denied his request for further training and new equipment in an effort to set him up for failure, but the Defendant denied similar budget requests made by his colleague for many years. Second, an agent of Defendant made a comment that the Plaintiff was “old and antiquated,” but this statement was made 10 months before the employee’s termination. Third, Plaintiff rests his national-origin claim on comments made by a former supervisor who was not involved in the decision to terminate the Plaintiff and was not employed with Defendant at the time the Plaintiff was fired.
The Court found that the Plaintiff submitted insufficient evidence and that the record supports the Defendant’s stated reason for terminating the Plaintiff. Therefore, the District Court’s decision was affirmed and the Plaintiff’s case was dismissed.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Ortiz v. Cedar Crest College, 2019 U.S. App. LEXIS 7283 (3d. Cir. Mar. 12, 2019).