August 2020
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WORKERS’ COMPENSATION LAW
Should Have Hired Landscapers:
Activities During Gap In Treatment
Doom Causation Arguments
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Claimant was injured in a compensable work accident in 2013 involving the low back and multiple other bodily injuries. In 2019, Claimant filed a Petition seeking payment of low back medical treatment with Dr. Zaslavsky.
The Board found Claimant’s evidence inconsistent and insufficient to support a finding on causation. The Board noted a 5-year gap in lumbar treatment, during which time the claimant had treated for knee and upper extremity symptoms, with two different physicians, with neither physician noting back problems. Claimant alleged that both providers must have recorded her history incorrectly as she consistently reported 9-10/10 low back pain during that 5-year time period. The Board found this “highly unlikely.” The Board further felt Claimant’s ability to do yard work and physical activities as discovered by surveillance investigations and, admitted to by the claimant on cross examination, were inconsistent with her allegations of intense low back pain and significantly detracted from her credibility. Even Dr. Zaslavsky had to concede that if claimant’s history was not accurate, that could change his opinion on causation.
Should you have any questions concerning this decision, please contact Nick Bittner or any other attorney in our Workers’ Compensation Department.
Patricia Smallwood v. State of Delaware, IAB Hrg. No. 1406424 (Feb. 26, 2020).
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LITIGATION CASE LAW
A DOG NAMED GYPSI
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This story starts in 2019, when Gypsi was first adopted. Upon arriving home, Gypsi was introduced to the neighboring dog. The introduction did not go well. A scuffle ensued in which both dogs bit each other. The incident was reported and investigated by the State of Delaware Animal Welfare Department.
Fast forward a month later, Plaintiff was invited over to Gypsi’s Owner’s property. Unfortunately, this visit also went awry when Gypsi bit the Plaintiff in the face. At the time of the bite, the Gypsi’s Owners were covered under a homeowner’s policy issued by Insurer.
Subsequently, Plaintiff filed suit and Insurer filed a motion for summary judgment seeking a declaration that Plaintiff was not entitled to a defense and indemnification under the policy. The crux of the Insurer’s argument was a “one bite” coverage exclusion contained in the policy. In brevity, the policy excluded coverage for bodily injury or property damage caused by any dog with a prior history of attacking or biting another animal.
In opposition, Plaintiff argued that the policy was ambiguous as ‘history’ requires more than one prior bite and that under Delaware law such ambiguities should be construed in favor of the insured. Additionally, Plaintiff contended that the policy exclusion was void as against public policy.
To resolve the controversy, the Delaware Superior Court first examined the policy. The Court found the “one bite” exclusion to be clear and unambiguous. Essentially, its plain language precluded coverage for injury caused by any dog with a prior history of a bite. Further, the Court reasoned that “a prior history” refers to one incident (or more) in both its ordinary meaning and as construed by prior Delaware precedent.
Finally, the Court concluded that the exclusion was not contrary to public policy as the purchase of homeowner’s insurance is not governed or mandated by state law or the applicable dog bite statute; therefore, the parties are free to negotiate the terms of the coverage as they see fit. As such, Insurer was not obligated to defend and indemnify Gypsi’s Owners.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Nationwide Prop. & Cas. Ins. Co. v. Finn, 2020 Del. Super. LEXIS 2534 (Aug. 6, 2020)
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EMPLOYMENT LAW
Plaintiff’s Disability Claim Denied as Court finds Administrative Law Judge’s Opinion was Supported by Substantial Evidence
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Plaintiff filed her benefits application for Supplemental Security Income on May 5, 2015, alleging disability due to cervical radiculopathy resulting from a motor vehicle accident. Her application was denied on July 15, 2015 and once again denied upon reconsideration on August 30, 2016. Plaintiff requested a hearing before an administrative law judge (“ADL”), which took place on July 10, 2018 who concluded that Plaintiff had not been under a disability within the meaning of the Social Security Act for the relevant period. Further, the judge found that Plaintiff could perform a limited range of sedentary work. Plaintiff appealed the administrative law judge’s decision to the United States District Court and filed a motion for summary judgment.
The Court is limited to determine whether the ADL’s factual findings are supported by substantial evidence and whether the correct legal standards were applied. When determining whether an individual is disabled, the ADL must determine whether the individual: (1) is engaged in substantial gainful activity, (2) has a “severe” medical impairment; (3) suffers from an impairment that meets a listing; (4) has the residual functional capacity to perform past relevant work; and (5) can perform any other work existing in significant numbers in the national economy.
Plaintiff argued that the ADL failed to account for Plaintiff’s limitations related to the use of her right upper extremity and no explanation was given to her as to why manipulative limitations were not considered. However, the ALJ noted that Plaintiff’s initial symptoms of right arm pain and numbness improved with treatment, and evidence supported that Plaintiff was capable of performing a reduced range of sedentary work. As to the manipulative limitations, the case was remanded for the ALJ to address that issue. The ALJ explained that he was not incorporating manipulative limitations because Plaintiff had specific improvements in pain symptoms and mobility following medical procedures.
Therefore, the Court denied Plaintiff’s motion as it found the ALJ’s decision was supported by substantial evidence.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Finney v. Saul, 2020 U.S. Dist. LEXIS 141114, at *1 (D. Del. Aug. 7, 2020)
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