April 2020

IS COVID-19 INFECTION COMPENSABLE UNDER DELAWARE LAW?
19 Del. C. 2301 defines compensable “occupational diseases” as all diseases arising out of and in the course of employment, only when the exposure stated in connection therewith, has occurred during employment.
In Anderson v. General Motors, Corp., 442 A.2d 1359 (Del. 1982), the Delaware Supreme Court elaborated that for an ailment or disease to be found a compensable occupational disease, evidence is required that: (1) the employer’s working conditions produced the ailment; (2) as a natural incident of the employee’s occupation; and (3) in such a manner as to attach to that occupation a hazard distinct from and greater than the hazard attending employment in general. An ailment does not become an occupational disease simply because it is contracted on the employer’s premises. It must be one which is commonly regarded as natural to, inhering in, incident and concomitant of, the work in question.
In short, whether coronavirus infection is compensable under Delaware workers’ compensation law is a highly fact specific inquiry, as well as dependent upon science and medicine that is only in the earliest stages of development at this time. Therefore, it is our recommendation that any such allegation be handled very carefully and with involvement of legal counsel.
If we can answer any question or help you further with these issues, please feel free to contact us. 
ANNOUNCEMENTS
Celebrating 25,000 cases!
Heckler & Frabizzio is excited to announce we have received our 25,000th case on March 17, 2020.
The Firm, founded in 1981, dedicated to litigation defense, began as a small firm with just a few employees. Today, Heckler & Frabizzio has two offices, 50+ staff, and a diverse client portfolio. We continue to provide exceptional service to our clients by staying true to our core values.
Reaching 25,000 cases is a major milestone for the Firm. We attribute our success to our loyal clients and talented staff. We are honored and appreciative that you can be a part of our journey. With your support, we will continue to excel in the years to come.
Majority Women Owned
Heckler & Frabizzio is proud to announce we are majority women owned. Why try to squeeze into the glass slipper when you can shatter the glass ceiling?
FAMILY BRAGS
WELCOME HOME
Congratulations to Jess Lee, paralegal, for purchasing her first house at the end of March in New Jersey. Her “welcome” mat is appropriate given the current pandemic.
WORKERS’ COMPENSATION LAW
Once Upon a Time before
the Industrial Accident Board
Claimant was involved in a rear-end motor vehicle accident with acknowledged injuries to his neck and low back. For a brief time after the work accident, claimant was noted to have weakness in his lower extremities; however, those findings quickly resolved and did not return. Dr. Eskander proposed a two-level lumbar surgical procedure, designed to “free up the nerves.” Dr. Eskander maintained that the lack of neurological compromise was proof of spinal stenosis; however, Dr. Schwartz testified on behalf of the Employer that this is not the case and that this surgery should not occur on a normal neurological examination.
The Industrial Accident Board found claimant did not meet his burden of proving the surgery was reasonable and necessary treatment for his condition. The Board accepted Dr. Schwartz’s testimony and emphasized the importance of claimant’s lack of neurological findings across multiple examinations, particularly with respect to claimant’s normal gait and the lack of a positive EMG. While the Board accepted there was a period of neurological compromise, it cautioned that “one does not operate because, once upon a time, one had symptoms.” Further, without the presence of current neurological problems, the risk of a complicated two-level surgery was significant and not justified. The Petition was denied outright, and the surgery deemed unreasonable and unnecessary.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
Raymond Thompkins v. Reynolds Transportation, IAB No. 1482461, March 13, 2020.
EMPLOYMENT LAW
Employer Arguments Notably Fail to Reverse Board’s Decision in Awarding Employee Unemployment Benefits
In 2015, Employee obtained employment as a constable with a public college. In 2018, Employee was given a Note from a fellow constable, which was found in a parking lot on campus. The Employee read the note, which was illegible, and perceived it to be, “a cry for help.” Employee failed to inform his supervisor of the Note or seek guidance on how to proceed after reading the Note. Therefore, he was terminated.
Employee filed for unemployment benefits and was found to be eligible by the Claims Deputy. The Employer appealed the decision to the Appeals Referee who affirmed the Claims Deputy decision, finding the Employee was not terminated for just cause. The Employer appealed the Referee’s decision to the Board, who also upheld the decision. The Employer then filed a Notice of Appeal to the Superior Court.
Employer argued that the Note was a suicide note, and failure to act was just cause to terminate the Employee.  The Board held that Employee’s failure to report the Note was not sufficiently serious to warrant termination without warning.
The Board provided specific reasons for its decision. First, the Board concluded that the evidence did not show that a reasonable reading of the Note would lead to the conclusion that immediate action must be taken and Employer failed to persuade the Board otherwise.  Second, the Board reasoned that the Employee’s delay in showing the Note to another person was not unreasonable because the Note was not clearly a suicide Note and it was unknown how long the Note had been in the parking lot or in other people’s possession before it was given to the Employee. Lastly, the Employer failed to demonstrate that the Employee had been trained on suicide prevention or on how one in his position should handle the discovery of a potential suicide note.
The Court rejected the Employer’s arguments because the Employee did not act deliberately, intentionally, or willfully in a manner adverse to the Employer’s interest, he only made an error in judgment. Therefore, the Court found the Board’s decision to be free from legal error and supported by substantial evidence.
Del. Tech. & Cmty. College v. Binns, 2020 Del. Super. LEXIS 127 (Del. Super. Ct. March 10, 2020)
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
LITIGATION CASE LAW
IS A WELDED POWER TAKE-OFF CONNECTOR DEFECTIVE? NOBODY KNOWS – THAT’S WHY EXPERT TESTIMONY IS REQUIRED
Plaintiff purchased a power take-off connector from Defendant for his brush cutter that attached to a tractor. Later, when Plaintiff was cutting grass, the connector allegedly malfunctioned which caused him to lose control of his tractor and injure his hand.
Plaintiff filed suit against Defendant asserting claims for strict products liability and breach of certain implied warranties. In support of his claims, Plaintiff alleged that the adapter was defective because it was welded together and not a single metal bar.
After the expiration of the expert deadline, Defendant moved for summary judgment arguing that the Plaintiff failed to provide any expert testimony supporting his bare allegations of defect. Moreover, the Defendant averred that the Plaintiff’s strict liability claims were void under Delaware law.
Without significant deliberation, the Delaware Superior Court dismissed the Plaintiff’s strict products liability claim. The Court simply noted that Delaware’s strict liability doctrine does not extend to cases involving the sale of defective products, even where it is alleged that the product is inherently dangerous. Accordingly, Defendant was granted judgment as a matter of law as to Plaintiff’s strict liability claim.
With respect to Plaintiff’s breach of warranty claims, the Court found that for Plaintiff to be successful he must prove that the connector was defective at the time of sale and that the defect was the proximate cause of his injuries. The Court determined that the Plaintiff’s claims of defect and causation were not within the common knowledge of laypeople and therefore expert testimony was required. To save his claims, Plaintiff represented that he maintained sufficient expertise to personally testify as an expert. The Court set a subsequent hearing to determine if the Plaintiff actually maintains the requisite expertise to prove the power take-off connector.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Katz v. Tractor Supply Co., 2020 Del. Super. LEXIS 138 (Mar. 16, 2020)