April 2021

It Is Okay to Lose ‘Round One’ If You Conclude with a Complete Knockout
The parties entered into an Agreement acknowledging a lumbar soft tissue strain injury. Employer filed a Petition seeking to void the Agreement for fraud, arguing that Claimant had materially misrepresented her prior medical history at the time the Agreement was made. The Board denied the Petition finding there was insufficient evidence for the Agreement to be rescinded due to fraud.
Employer filed a new Petition seeking to terminate ongoing benefits, under the theory that any work-related injury had resolved. Claimant argued that the Board’s earlier ruling “implicitly acknowledged” the compensability of radicular symptoms associated with the work injury, and therefore precluded a finding of resolution of injury.
The Board rejected Claimant’s legal argument, noting that the burden of proof relating to fraud, that was controlling at the first Hearing, is a different and higher standard than the burden of proof on whether benefits should be terminated. Claimant could have misrepresented her medical history, but not to a degree of a legally fraudulent misrepresentation. The Board commented that it should have been clear from the first Decision that it was not deciding issues of nature and extent of injury, only whether the Agreement should be rescinded for fraud.
The Board also agreed with Employer that Claimant had a pre-existing degenerative condition with a radicular component that became symptomatic leading up to the work accident and not impacted by the work accident. The Board accepted the opinions of defense medical expert Dr. Gelman, over that of Dr. Rudin, primarily because the Board did not find Claimant credible. Claimant provided very specific testimony that her radicular symptoms migrated from left to right sided secondary to the work accident. It was “suspect” that claimant would be that specific in testimony, yet three separate emergency room clinicians specifically recorded either no trauma or non-work-related histories. It was also suspect that in many locations in the records, Claimant had explicitly denied any history of prior low back pain or pain involving the same body part. The Board also noted Dr. Gelman’s opinions that claimant’s pre-existing MRI findings were competent to cause both right and left sided problems. Therefore, the Board found that Claimant’s soft tissue strain injury had resolved and granted Employer’s Petition.
Should you have any questions regarding this Decision, please contact John Ellis, or any other attorney in our Workers’ Compensation Department.
Dawn Lawson v. Amazon.com, Inc., IAB Hrg. No. 1473748 (Jan 7, 2021).
The Statute of Limitations for Construction Defect Claims
Plaintiffs purchased their home in March of 2008. In 2011, the Plaintiffs noticed water leaks on the property. Eight years later, in August 2019, they allegedly discovery construction defects that caused systemic and catastrophic water intrusion. The Plaintiffs subsequently sued Defendant, the home’s builder, for negligent construction.
Defendant filed a Motion for Summary Judgment asserting the litigation was time-barred by the statute of limitations. In response, Plaintiffs argued that although they were aware of water issues in 2011, the full extent of the injury and damage was not known until 2019; therefore, the statutory limit should be tolled.
The Delaware Superior Court determined that the underlying issue in the case was when the Plaintiffs could be said to have had knowledge of the water intrusion forming the basis for the Complaint. To that effect, the Court looked to the Plaintiffs’ discovery responses that indicated they were aware of ‘limited’ water intrusion in 2011.
The Court held that regardless of the adjectives used to characterize the injury – be it limited or significant – the Plaintiffs had knowledge of water intrusion issues that serve the basis of the Complaint in 2011. As a result, the litigation was found to be time-barred by the three-year statute of limitations.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Altenbauch v. Benchmark Builders, Inc., et al., 2021 WL 1215828 (Del. Super. Ct. Mar. 26, 2021).
Defendant’s Motion for Summary Judgment Granted as Plaintiff Fails to Prove Discrimination Claims
Plaintiff was a probationary firefighter from November 2014 to February 2015.  Plaintiff was given a copy of the Code of Conduct and Rules at the beginning of his probationary period. Per the Rules, termination may result if any member fails to appear for their assigned duty and it was further indicated that such failure would be considered absent without leave.
On December 2, 2014, while running during physical training, Plaintiff twisted his left ankle. Plaintiff was sent to urgent care, was evaluated, and released to light duty. The next day, Plaintiff was released to modified duty for the remainder of the day but failed to report to duty at the required time. On December 10, 2014, Plaintiff was terminated for violating the Code of Conduct when he was absent without leave.
Prior to his termination, Plaintiff stated he was called a “useless peg leg,” “peg leg” and “gimp” due to his ankle injury.  Plaintiff also stated that his Lieutenant called him a “lazy Puerto Rican” on multiple occasions.  Other recruits in Plaintiff’s same class and Plaintiff’s Lieutenant denied using or hearing discriminatory comments directed towards Plaintiff.  Plaintiff was cleared to return to full duty on December 10, 2014, and on that day, Plaintiff was able to run 1.5 miles.
Plaintiff alleged that Defendant regarded him as being disabled in violation of the ADA and Rehab Act and that he was subjected to a hostile work environment and fired due to his race, ethnicity, or prescribed disability. Defendant moved for summary judgment arguing that the Plaintiff’s ADA, Rehab Act and race discrimination claims fail as a matter of law, and there is no evidence that Plaintiff’s termination was a pretext for discrimination.
Under the ADA and Rehab Act, Plaintiff need not actually have an impairment limiting a major life activity, but the focus is on the employer’s “reactions to and perceptions of” the Plaintiff. Plaintiff testified that he considered himself disabled when he twisted his ankle. However, the Court concluded that Plaintiff’s sprained ankle was not a disability under the ADA because it involved only a short time off work and Plaintiff returned to full duties.
Under the hostile work environment claim, Plaintiff had to prove he suffered intentional discrimination because of his race, the discrimination was severe and pervasive, the discrimination detrimentally affected him, the discrimination would have detrimentally affected a reasonable person of the same race in his position and there is a basis for employer liability. Plaintiff points to the remarks towards him on multiple occasions as evidence.  However, the Court found that the person who allegedly made the discriminatory remarks was not the individual who made the decision to terminate Plaintiff and there was no evidence that the comments were made by any person at Plaintiff’s termination hearing. Therefore, the Court found that the alleged comments were not direct evidence that Defendant relied on Plaintiff’s national origin or race as a factor in its decision to terminate the Plaintiff. Further, Plaintiff presented no evidence that the comments unreasonably interfered with his work performance or that the discrimination was severe and pervasive enough to change the terms and conditions of his employment. In addition, the Court found that Defendant articulated a legitimate, nondiscriminatory reason for terminating Plaintiff, which was because he was late without prior notification and he was considered absent without leave.  Plaintiff did not offer any evidence to rebuke Defendant’s proffered reasons.
Therefore, the Court granted Defendant’s motion for summary judgment on all counts.
As an aside, Plaintiff also brought a workers’ compensation claim against his employer for the lower extremity injury during training.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Christian F. Negron v. City of Wilmington, 2021 WL 1198704, at *8 (Del., 2021)
DSBA WC Seminar
On May 4th the Delaware State Bar Association is hosting a Workers’ Compensation Zoom live webinar CLE. Heckler & Frabizzio partners, Maria Paris Newill, Gregory Skolnik, and John Ellis will be speaking at the webinar. If you would like to attend please follow the link below to register.
Congratulations to Concetta Mazara, paralegal, on her pregnancy! Concetta is expecting her bundle of joy in August 2021.
Sandra Glackin, legal secretary, and dance choreographer sought out by JLo to improve her dance moves. Unfortunately, JLo just could not keep up.
Please contact Page Chase, Firm Administrator, to submit exciting news including, promotions, adjuster updates, accolades, accomplishments, and the like. You may also submit ads for open positions.