August 2017

Employer Defense to Medical Marijuana Treatment Goes Up In Smoke
Claimant sustained compensable back injury with multiple failed surgeries. Dr. Grossinger prescribed medical marijuana, with no limitation on the amount of the dosage. Claimant filed a Petition seeking a finding that the medical marijuana was compensable treatment.
Both Dr. Grossinger and the defense medical expert, Dr. Townsend, agreed that the treatment was reasonable and necessary. The true dispute concerned the cost of the treatment (claimant had incurred over $22,000.00 in marijuana dispensary costs in one year with Dr. Grossinger conducting no periodic follow up appointments during this time).
The Board held that the $22,000.00 in expenses were appropriate, but limitations should be put in place going forward. The Board sharply criticized Dr. Grossinger’s management of the patient, opining that medical marijuana is no different than any other treatment modality, meaning regular follow up is necessary to ensure that the treatment is working. The Board agreed with Dr. Townsend that following an initial period of adjustment to determine the proper strain and dosage, the amount of the monthly dosage should stabilize, and the claimant should be subject to regular drug testing and pain management office visits. The Board acknowledged that much of the difficulty in attempting to cap medical marijuana costs arises from the fact that the Delaware Fee Schedule/Health Care Practice Guidelines have not yet imposed specific cost containment measures for medical marijuana.
The Delaware Workers Compensation Fee Schedule Committee will be addressing this case/issue. Anthony Frabizzio sits on this Committee.
Please note that in this particular case, the issue before the Board was very limited. Both parties had agreed that the treatment was reasonable and necessary, the true dispute was over the cost of the treatment. Therefore, this case may not necessarily be precedential for the proposition that medical marijuana is compensable. Rather, we would expect that the issue of compensability of medical marijuana will be dealt with by the Board on a case by case basis.
Should you have any questions concerning the Decision, please contact Anthony Frabizzio, or any of our other workers’ compensation attorneys.
Kalix v. Giles & Ransome, Inc., IAB Hrg. No. 1280555 (July 10, 2017)

Court Holds Non-Speaking Roommates Are Not Household Members
In January of 2016, a female driver was traveling home in her insured vehicle.  Her vehicle became stuck in a snow ditch withintwo or three driveways of her residence.  She called her male roommate to help her get out of the ditch.  It was undisputed these two individuals co-inhabited a double-wide mobile home.  They had their own private bathrooms and bedrooms, but shared a common kitchen, living room and dining room.  In an odd twist, the opinion of the Court states they rarely spoke to each other.
The male roommate went outside to help the female driver.  When his efforts to push the vehicle out of the ditch were unsuccessful, he jumped behind the wheel of her car.  While he tried to get the vehicle out of the ditch, a passing snow plow negligently struck the vehicle and injured the male roommate.  In the category of no good deed goes unpunished, the male roommate was then cited for driving without a license and without proof of insurance as his license had been suspended due to multiple DUI convictions.
The male roommate sued his female roommate’s insurance company in March 2016, seeking payment for his PIP bills.  The insurance company had denied PIP coverage to the male roommate on the basis that as a “roommate” of the insured’s “household”, the insurance policy was voided and prohibited him from receiving PIP benefits, as the male roommate was not listed as a potential driver on his roommate’s policy.  The defendant insurance company then filed a Third-Party Complaint against the female roommate which resulted in cross Motions for Summary Judgment filed by the defendant insurance company and the female roommate in spring 2017.
The Delaware Superior Court, in a decision dated June 23, 2017, rejected the insurance company’s assertion that the female roommate had “materially misrepresented” and failed to disclose the male plaintiff’s status as her roommate and a potential driver, which would invalidate her policy.  The Court determined a crucial piece of the insurance contract was susceptible to two different interpretations: “that the plaintiff was at once a ‘roommate’ within the policy’s definition of ‘household members,’ but not a ‘driver’ as contemplated by the same section of the application.”
The female roommate interpreted “household members” as persons she considered her dependents which were her two sons. She even excluded one of her sons from her policy as he did not drive.  The insurance agent never asked the female insured about roommates when filling out her application.  The insurance company interpreted “household members” to include roommates.  The Court concluded it was reasonable for the insured to conclude the plaintiff did not have to be listed on the application since he was her roommate only, not a dependent or a driver.
Given the ambiguity of the insurance contract, the Court applied the doctrine of contra proferentem, which requires the Court to interpret the contract in favor of coverage.  The Court granted the female roommate/third-party defendant’s Motion for Summary Judgment and denied the defendant/third-party Plaintiff’s insurance company’s Motion for Summary Judgment.  The Court concluded the female roommate did not materially misrepresent the male plaintiff’s status as a co-tenant of her mobile home, and though he was her roommate, it was reasonable for her to conclude that he did not have to be listed on the insurance application because he was not a “driver”.  Thus, the insurance policy of the female roommate was not null and void and the male plaintiff could be afforded coverage.
Should you have any questions concerning the Decision, please contact John Gentile, or any of our other attorney’s in our Liability Department.
Hampton v. Titan Indem. Co., 2017 Del. Super. LEXIS 303 (Del. Super. Ct. June 27, 2017).


Delaware Legislators Pass Bill to Close Gender Wage Gap through Past Salary Disclosure Prohibition in Employment Hiring
In our October 2016 newsletter, we discussed an amendment to 19 Del. C. §711, proposed by Representative Valerie Longhurst, which sought to add more substance to the law in an effort to stop the perpetuation of gender pay disparities from one job to another. On June 14, 2017, Governor John Carney signed H.B. 1, amending Delaware Unlawful Employment Practices, noting “All Delawareans should expect to be compensated equally for performing the same work. This new law will help guarantee that across our state, and address a persistent wage gap between men and women.”
Effective December 14, 2017, the Act will prohibit “employers from inquiring into a prospective employee’s compensation history.” The pertinent parts of the Bill are as follows:
  • Employers may no longer screen prospective employees based on compensation history;
  • Employers may not seek compensation history from prospective employees or a current or former employer of any prospective employee;
  • Employers and prospective employees may discuss and negotiate compensation expectations, provided that no compensation history is requested;
  • The Bill does not prohibit employers, with authorization from the prospective employee, from seeking the prospective employee’s compensation history AFTER an offer of employment with terms of compensation is made, but may only for purposes of confirming compensation history. Any authorization must be in writing.
To view the full text of H.B. 1 please follow this link.
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.

August 18, 1920
Nineteenth Amendment To The United States Constitution Adopted
On August 18, 1920 the Nineteenth Amendment (Amendment XIX) to the United States Constitution is adopted which prohibits the states and the federal government from denying the right to vote to citizens of the United States on the basis of sex, giving women the right to vote. The Nineteenth Amendment was originally introduced in Congress in 1878, but it was not until forty-one years later, in 1919, that Congress submitted it to the states for ratification. It was ratified by three-fourths of the states a year later, with Tennessee’s ratification being the last needed to add the amendment to the Constitution. 22 year old representative of the Tennessee General Assembly, Harry T. Burn, was the deciding vote in favor of ratification on August 18, 1920, breaking a 48-48 tie. Burn had originally made clear his intention to vote “nay”, however, a letter from his mother asking him to vote in favor of the amendment helped to change his mind. The letter from his mother read in part:
Dear Son:
Hurray and vote for Suffrage and don’t keep them in doubt. I noticed Chandlers’ speech, it was very bitter. I’ve been waiting to see how you stood but have not seen anything yet… Don’t forget to be a good boy and help Mrs. Catt with her “Rats”. Is she the one that put rat in ratification, Ha! No more from mama this time.
With lots of love, Mama.
Editor’s Note: Always listen to your mother.

Alfred A. Cave is an associate in the firm’s worker’s compensation department.  Alfred was admitted to practice law in Delaware in 2016.  Alfred graduated from the University of Delaware in 2012 with a B.A. in Political Science and a minor in History.  He received his law degree from Delaware Law School and graduated cum laude.  Prior to joining the firm, Alfred was a judicial law clerk in the Delaware Court of Common Pleas for Chief Judge Alex J. Smalls.
When not in the office, Alfred is an avid football fan and enjoys watching the games with his friends and family.

Workers’ Compensation attorney John Ellis won the Combined Campaign Cup Tennis Tournament, held on July 17, 2017 at the DuPont Country Club. This is the third consecutive year that John has won the tournament.
The tennis tournament was part of the 5th Annual Combined Campaign Cup, an annual fundraising event for the Combined Campaign for Justice, an organization that works to provide legal aid to low-income Delawareans.
Congratulations John on your tennis preeminence!
Heckler & Frabizzio is pleased to announce we have developed a useful tool that will allow our clients to view Jury Verdict information in one central location. Please click the following link to access our Jury Verdict information.