August 2016

Supermarket Sweep: The Delaware Industrial Accident Board Clarifies Procedure for Raising Recurrence of Total Disability Benefits
Delaware Supermarkets filed a Petition for Review of the claimant, Scott Murphy’s, ongoing partial disability benefits agreement. In response, the claimant alleged he should be placed back on total disability benefits in keeping with his treating physicians’ opinion. Defense objected to the claimant’s attempt to bring the issue of recurrence of total disability in violation of Board Rule 26.
In a sweeping win for Delaware Supermarkets, the Industrial Accident Board made a special effort to clarify the proper procedural process to claim a recurrence of total disability benefits under Board Rule 26.
When a petition is pending before the Board, either party may assert an additional issue but a party wishing to assert one or more of the following issues must file a formal petition and serve the same in accordance with the statute unless otherwise permitted by the Board pursuant to Rule 8. (1) a request to review an open compensation Agreement; (2) a claim for permanent impairment benefits; (3) a claim for a recurrence of total and/or partial disability; (4) a claim for disfigurement benefits; or (5) a forfeiture of the right to compensation pursuant to 19 Del. C.§ 2353.
On page 16 of its Decision, the Board commented by footnote that the rule clearly instructs that a Petition alleging a recurrence of total disability must be filed separately. The Board was not persuaded by claimant’s argument that the claim for recurrence was preserved on the Pre-trial Memorandum and not objected to prior to Hearing so no prejudice resulted to the defense. Claimant cited Kirkland v. Terminix, C.A. N15A-08-003, LeGrow, J. (Del. Super. June 17, 2016) as dispositive because in Kirkland, the Court affirmed a Board decision allowing an additional issue not specified on the Petition to be heard. The Board distinguished their findings from Kirkland by noting that the “additional issue” was not one for recurrence of total disability, because that issue must be raised by separate Petition. Additionally, Kirkland was given a 60-day continuance to address the additional issue.
Although the Board clarified this important point, the decision they reached on the merits of the Petition for Review mooted this issue because Delaware Supermarkets’ Petition for Review was granted and claimant was determined to no longer be partially disabled.
Contact Amy Taylor or any of our experienced attorneys at (302) 573-4800(302) 573-4800 with questions on defending against procedurally improper claims.

Scott Murphy v. Delaware Supermarkets, IAB No. 1427681

 Court Puts the Brakes on Tricycle Drivers Use of the Delaware Driver Manual at Trial
The Delaware Driver Manual (“Manual”) is not part of the Delaware motor vehicle code, an administrative regulation, or so widely known it constitutes a standard of care, and therefore testimony regarding the three- and four- second rules should be excluded as its probative value is substantially outweighed by the danger of unfair prejudice and confusion. D.R.E 403.
The litigation arises from a collision between an automobile and an adult tricycle. The driver of the tricycle was cited for, and plead guilty to, traveling in the wrong direction in violation of a Delaware statute. At trial, the Court issued an order preventing the tricycle driver’s expert from testifying to “proper or improper, safe or unsafe, speeds or distances,” because such was an argument for the jury and not an opinion based upon the Manual. Further, the Manual was not permitted to be used at trial because its recommendations were merely guidelines for safe driving and not based on statute, specifically 21 Del. C. §§ 4101-4199 (“Rules of the Road”). Noted, the Manual includes a section on “Sharing Space,” that references a three- and four- second rule when following behind another vehicle.
On February 3, 2106, the Delaware Supreme Court affirmed the judgment of the Superior Court. The Court noted that the jury was properly instructed that it could find negligence if a party violated one of several Delaware motor vehicle statutes. Further, the trial court acted within its discretion concluding there was a risk the jury may give the Manual undue weight and use it as a legal measure rather than focusing on the language of the statutes involved.
For more information on this matter or other legal questions, feel free to contact Michael W. Mitchell or any attorney in our Liability Department.
Case v. Taylor, No. 134, 2015, Vaughn, J. (February 3, 2016).

The Doctrine of Industrial Double Jeopardy Does Not Protect IT Network Crashes
In Khan v. Delaware State University, an employee, Dr. Khan, a tenured professor at Delaware State University, alleged, among other claims, that the University violated industrial double jeopardy when it disciplined and then ultimately terminated him in January 2013. The University employed Dr. Khan as a professor of electrical engineering in its College of Mathematics, Natural Sciences & Technology (CMNST) for over 15 years, receiving tenure in 1997. In addition, he was appointed as Director of IT, separate from his professorship, where he established and maintained a high performance IP network used by the College for research, training, and education (the Network). In this role, he was responsible only for development and maintenance of the Network, but not its day-to-day operations.
Over time, conflicts developed between Dr. Khan and the Dean of the University. Dr. Khan subsequently resigned as Director of IT. However, faculty continued to send him requests regarding the network, to which he responded that he could not provide the requested information. During this time, the network administrator was not available due to illness, and no one oversaw the Network, which ultimately crashed on March 16, 2012. Dr. Khan was subsequently placed on paid administrative leave for “intentionally sabotage[ing] the CMNST Network and . . . substantially interfer[ing] with the ability of the entire faculty of that College to perform their duties.”
 An investigation was completed regarding the security of the system and the reason for the crash, and a report by the Assistant Provost and an Internal Auditor catalogued a series of problems and condemned Dr. Khan’s conduct after his resignation. Dr. Khan was subsequently suspended without pay while the University continued its investigation, and was later discharged for failure to perform his professional responsibilities and his lack of responsiveness with regard to providing requested information regarding the network. Dr. Khan then brought suit, arguing, among other claims, that his discharge was improper under the doctrine of industrial double jeopardy.
Industrial double jeopardy is a rarely used doctrine stemming from the inherent due process rights of private sector unionized employees, providing that an employee should not be penalized more than once for an infraction. This doctrine is narrowly construed, applying only to unionized private sector employees and only where a final decision on the merits of a penalty against the employee is made and the penalty is subsequently increased. Thus, the doctrine does not apply to bar subsequent discipline of an employee suspended pending an investigation of alleged misconduct.
Dr. Khan argued that Provost Thompson’s decision to discharge him after his suspension without pay violated the doctrine of industrial double jeopardy because Dr. Khan was reinstated after his suspension period ended and before being discharged due to the same infraction as that which brought about the suspension. The Superior Court held that the suspension without pay did not constitute a final sanction, as Provost Thompson initiated the suspension in order to investigate and consider the infraction and the appropriate sanction. Though Provost Thompson did not conduct any further factual investigation, the Court found that a suspension while an employer “explores the legal parameters of a decision is . . . equivalent to a period for factual investigation.” Thus, Dr. Khan’s suspension did not constitute a “final” penalty and therefore his discharge did not violate industrial due process.
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
Khan v. Delaware State Univ., 2016 Del. Super. LEXIS 283 (Del. Super. Ct. June 24, 2016)

Giving Back
Heckler & Frabizzio Attorney John Ellis and his doubles partner Richard King captured the win at the 4th Annual Combined Campaign Cup golf outing at DuPont Country Club. John and Richard won the combined campaign for justice charity tennis doubles tournament and helped raise money for a great cause.
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