Claimant was involved in a 4/30/21 work accident. Employer accepted a C4-7 fusion surgery performed on 11/16/21. Following this procedure, Employer filed a Petition to Review seeking to terminate total disability benefits. Employer filed a cross Petition seeking payment of additional surgery done on 9/11/23, extending the fusion to cover the adjacent C3-4 level.

Accepting the opinion of defense medical expert Dr. Kahanovitz over claimant’s treating surgeon Dr. Eskander, the Board found claimant’s more recent neck surgery not reasonable or necessary treatment, and also terminated total disability. The Board noted that Dr. Kahanovitz personally reviewed flexion extension x-ray and MRI films, and observed no changes to the C3-4 level or progression of Claimant’s condition. There was no evidence of instability or significant neurological compression. Without these factors, there was no indication to extend the fusion. The Board also agreed with Dr. Kahanovitz that it was questionable to extend the fusion when both doctors agreed that the level above at C2-3 had evidence of instability, putting the claimant at further risk down the road. As to the Petition to Review, the Board commented that even claimant conceded on cross examination that she was capable of doing a part time work from home job. In this context, the testimony of Dr. Kahanovitz as to return to work capability was deemed more credible.

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

Patricia Abrams v. State of Delaware, IAB Hrg. No. 1510985 (Mar. 27, 2024).

EMPLOYMENT LAW UPDATE

Superior Court Affirms Board’s Findings That Claimant Falsified Her Time Sheet

On August 1, 2023, the Delaware Unemployment Insurance Appeal Board disqualified Claimant Bishop from receipt of unemployment benefits because she was terminated by her employer, Delmar Nursing & Rehab Center, for just cause.

Employer’s justification for Claimant’s termination was that the Claimant misrepresented hours worked on a July 2, 2022 timecard. Employer’s policy is that timecard misrepresentations are subject to termination. The Claimant argued that she worked from home on July 2, 2022.

Employer submitted evidence showing that the Claimant arrived at the premises of the Employer on July 2, 2022, clocked in, and then left the premises. The Claimant returned later that day to clock out. The Claimant’s timeclock activities were captured by video surveillance.  The record reflects that the Claimant also signed her time sheet to verify that she worked on July 2, 2022.

Employer also offered forensic evidence from the Claimant’s work computer obtained by an expert witness that showed that the Claimant’s “work issued laptop computer was in ‘sleep mode’ from July 1, 2022, until July 3, 2022.”

The Board concluded that Claimant did not work on July 2, 2022 and that the Claimant’s misrepresented time card was enough for Employer to terminate the Claimant with just cause.

The Claimant appealed the Board’s decision to the Delaware Superior Court which has the power to review Board decisions to make sure that they are free of legal error, are of sound discretion, and are supported by substantial evidence.

On appeal, the Claimant argued that the Employer’s expert witness evidence was “after acquired evidence” and therefore excludable. The Claimant also argued that Employer’s expert witness testimony was in violation of the Delaware Rules of Evidence. The Claimant also argued that the “Board’s findings were the result of fraud or deceit committed by the employer and its counsel” The Claimant’s third claim as to fraud or deceit chargeable to the Employer was disposed of by the Superior Court prior to the Court’s written decision.

As to the Claimant’s argument concerning the Employer’s expert witness testimony, the Court held that Employer’s expert testimony “bolstered and corroborated Employer’s already existing basis for terminating Claimant.” Such evidence was not acquired after the termination to prove some set of facts that could independently be a basis for termination.

The Court also found that Employer’s expert had a sufficient basis for his opinion concerning the Claimant’s work computer and that the chain of custody for the work computer was maintained.

If you have any questions regarding this decision, especially the unemployment claims appeals process, please contact any attorney in our liability department.

Kimberly Bishop v. Delmar Nursing & Rehab Center and UIAB C.A. No.: S23A-08-002 MHC (Del. Super. Ct. April 8, 2024)

LITIGATION LAW UPDATE

Motion for Summary Judgment Granted – – A Primer on the Elements of a Personal Injury Claim

Underlying this case is a homeowner’s dispute with a contractor over home renovation services. Discovery depositions were conducted on the eve of the trial, which gave way to settlement discussions. As is typical in settlement negotiations, there was some back-and-forth negotiating conducted on a relatively informal basis. Initial negotiations occurred in person between counsel for both parties, with plaintiff’s counsel communicating by phone with plaintiff. According to the record, defendant ultimately offered $30,000, payable in three installments, to which plaintiff agreed, and both attorneys shook hands.

Almost immediately after the handshake, defendant demanded inclusion of confidentiality and non-disparagement clauses. The clauses were reportedly requested because plaintiff had already made damaging statements about defendant’s business to potential client. Defense counsel stated he would prepare the settlement agreement with “usual” clauses, and plaintiff’s attorney represented the additional terms would likely not be problematic. The agreement was drafted and sent to plaintiff’s that evening, but plaintiff’s counsel emailed defense counsel later that night expressing concern that his client may not sign it as written. Emails the next morning between counsel discussed trial preparation and defense counsel emailed: “Let me know as soon as you have any updated re: settlement. I need to get my expert back moving on this is this is to go that route.”

In issue now is whether the parties reached a settlement agreement. Plaintiff contends that there was no meeting of the minds. Defendant contends that the parties had agreed to a contract as to settlement. The Court acknowledges that oral agreements are valid in Delaware. The question then is whether the parties had reached an agreement as to all material terms. “The proponent of the settlement has the burden to show by a preponderance of evidence the parties had an agreement.” While the primary and essential term is typically price, the Court found that Defendant’s addition of non-disparagement and confidentiality clauses was an essential term in light of the relationship between the parties. The Court also gave weight to counsels’ trail preparation actions the following morning, which the judge felt “unequivocally shows” that Defendants did not yet believe an agreement had been reached. The motion to enforce settlement was, therefore, denied.

Wanda Roberts v. Moffa Construction Company LLC, C.A. No. S21C-10-017 CAK (Del. Super. Ct., Feb. 6, 2024)