April 2022

Mock Trial
On March 4-5, the Mount Pleasant High School Mock Trial Team, co-coached by Gregory Skolnik, Partner, competed in the 2021-22 Virtual Mock Trial Competition. We could not be proud of all the hard work put forth by the kids. Congratulations to all!
Superior Court Bench and Bar Civil Liaison
Miranda Clifton, partner, was appointed as the Kent County Superior Court Bench and Bar Civil Liaison. Miranda serves as a liaison for any issues in the civil arena needing to be addressed between attorneys and the judiciary. Congratulations, Miranda!
Diversity Scholarship
The Firm is offering a $5,000 scholarship to a diverse, Delaware student who is currently looking to further their education in the legal field. The rising cost of education continues to be a hardship many minorities struggle to overcome. Heckler & Frabizzio believes that by helping diverse legal professionals overcome those struggles, our world can become a brighter place for future generations in our community. We are seeking a candidate who demonstrates a commitment to diversity, their Delaware community, and a passion for the legal field. For more information please contact Page Chase.
William D. Rimmer Workers’ Compensation Seminar
This year’s Delaware State Bar Association annual Workers Compensation Seminar is in honor of Heckler & Frabizzio’s late partner, William (Bill) Rimmer. Bill was an excellent attorney, partner, friend, father, and husband. His passing deeply impacted all who knew him. Thank you to the DSBA for recognizing Bill and honoring him at the Workers Compensation Seminar being held on May 3rd from 8:30 am – 4:00 pm. Please click here, for more information.
Keeping up with H&F
Happy Anniversary
The Firm would like to congratulate Jim and Maria Newill on 4/25/22 as they celebrate their 35th wedding anniversary. Maria is a partner and has been with the Firm since 1990. Best Wishes Jim and Maria!
Beating Cancer!
Lysa Kaminski, legal secretary, organized a team to raise money for breast cancer in support her cousin who was diagnosed. The team finished 3rd out of 96 teams in fundraising. Most importantly her cousin beat cancer! Congratulations to all!
Its a Party
Happy birthday to Lysa Kaminski, legal secretary, who is celebrating her 50th birthday this month. Lysa is planning an 80’s themed party for the celebration!
Looking for a Love Connection:
SSS (single, stripped sock), who likes The Boston Red Sox, socket wrenches, electrical sockets, and “Pippy Long Stocking”, seeks compatible mate to hang Christmas stockings with. Must like long walks, playing with little piggies, sleeping on the left and having a ‘darn’ good time. Looking for a partner to spark that warm, wooly feeling when cuddling up on cold nights telling long yarns.
Who’s Burden Is It Really – a “Booster Shot” for Claimants on COVID-19 Compensability
In Fowler v. Perdue Farms, Inc., 2022 WL 807327 (Del. Supr. Ct. 2022), Claimant filed a Petition alleging that he contracted COVID-19 in the March of 2020 timeframe while working at Perdue Farms. After a Hearing, the Board issued a decision denying Claimant’s Petition stating Claimant did not prove he contracted COVID-19 from his workplace, and that it need not determine whether COVID-19 is an occupational disease within the of Delaware Workers’ Compensation Act. Claimant appealed to the Superior Court.
The Court ruled that the Board committed legal error and failed to base its decision upon substantial evidence by substituting its own knowledge for that of the Parties medical experts (both of whom found that the condition was contracted at work) and speculating regarding facts not in the record. Specifically, the Court questioned the evidentiary basis for multiple comments in the Board decision as to ways/places that the Claimant could have possibly contracted COVID-19 besides work, such as when pumping gas, shopping at Walmart, or treating with his personal doctor. The Court also questioned whether the Board applied the correct burden of proof. The Board’s finding that it was not “for sure” that Claimant contracted COVID-19 at work was interpreted as imposing a higher burden than the “more likely than not” standard.
It is important to note that while the Board Decision was “reversed” it was also “remanded” for further Board proceedings. Specifically, the Court tasked the Board with: (1) considering only alternative cause evidence supported by substantial evidence; (2) having the medical experts comment upon the impact of the possible alternative causes; and (3) determining whether COVID-19 qualifies as an occupational disease as defined by the Workers’ Compensation Act. It seems like the Court is improperly placing the burden on the Employer to disprove the causal relationship, rather than on the Claimant to prove same. It remains to be seen whether the outcome of the Board’s initial Decision will change on remand. We will keep you posted.
Please note that there was a recent Board Motion Day Decision in a different matter, Cacccioli (Deceased) v. Infinity Consulting Solutions, IAB 1501061 (Mar. 9, 2022)(ORDER), where the Board found that “while COVID-19 exposure can certainly be a compensable occupational disease in the proper situation, in the limited office setting described in the petition in [this] case, there is no assertion that Claimant’s occupation produced a hazard of contracting COVID-19 distinct from and greater than the hazard attending employment in general” and the Petition was dismissed as a result. While we understand this ruling was not appealed, it remains to be seen whether and to what extent the Fowler remand Board will conclude that Caccioli has any preclusive effect.
Our Workers’ Compensation Department will be monitoring these developments. If you any questions regarding this Decision or COVID-19 compensability generally, please contact any of our Workers’ Compensation attorneys.
Court Finds Unemployment Board Committed Legal Error, Decision Reversed and Remanded
Plaintiff was separated from the United States Army and subsequently filed for unemployment benefits. When he filed for benefits, he sought to include the amount of his prior military pay in the calculation. Former military service members, who served active duty, qualify for benefits under this system.
To qualify under the Unemployment Compensation for Ex-Service members Program, a service member must be (1) discharged under honorable conditions and (2) complete a full term of active service or meet certain exceptions.  When an ex-service member applies for benefits, they must provide information regarding the length of their service and the reason for discharge.
In this case, the plaintiff did not complete a full first term of service. However, he could still qualify for benefits if he can demonstrate he served honorably for greater than 365 days and he was honorable discharged because of a “personality disorders or inaptitude.” There is a list of acceptable narrative reasons for separation based upon “personality disorders or inaptitude.” The Division was instructed to determine whether the plaintiff’s stated reason for separation “substantially matches” one of the reasons on the list. The plaintiff’s reason for separation was for “Misconduct / Drug Abuse” and the plaintiff argued that this is substantially similar to “Drug Rehabilitation Failure”, which is an acceptable reason.
The plaintiff demonstrated that he was honorable discharge, so he met the first requirement for benefits. However, the Claims Deputy denied the plaintiff’s claim finding that the plaintiff’s service did not meet one of the acceptable reasons for separation. The plaintiff appealed to the Appeals Referee who also denied him benefits without comparing the plaintiff’s reason for separation to the list of acceptable reasons. The plaintiff then appealed to the Board. The Board did compare the list of acceptable reasons to the plaintiff’s reason but did not compare the two to determine if there was a “substantial match.”  The Board also denied the plaintiff’s claim, leading the plaintiff to file an appeal to the Superior Court.
The Court found that the Board committed legal error because the Board failed to compare the plaintiff’s reason for separation to the list of acceptable reasons. Further, the Court found the Board committed an additional error by declining to consider additional evidence to aid in making that decision. The Court reversed the Board’s decision and remanded the case back to the Board to consider evidence and make a factual finding whether the plaintiff’s reason substantially matches an acceptable reason.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Isaiah Collins v. UIAB, No. K21A-10-001 JJC (Del. Super. March 29, 2022)