August 2023


Heckler & Frabizzio Partners, Miranda Clifton, and Amy Taylor are hosting a virtual Ethics seminar on January 17th, from 1pm-4pm. This course is approved for three hour Delaware ethics credits.

Additionally, Heckler & Frabizzio Partners, Gregory Skolnik, and Nicholas Bittner are hosting a virtual Workers’ Compensation seminar on February 15th, from 1pm-4pm. This course is approved for three-hour Delaware general credits.

Heckler & Frabizzio is looking forward to continuing to offer free continuing education credits to our clients. If you’d like to join us, please email Natalie Bogia, with your National Producer Number (NPN) and Delaware License Number. We hope to see you there!

Keeping Up with H&F


John Morgan, Of Counsel, has been a volunteer member of the Board of the YMCA of Delaware for several years and a few weeks ago, he had the honor of attending the 2023 General Assembly of YMCAs in Atlanta, GA. This national gathering of more than 3,000 YMCA leaders, volunteers, and program staff was an incredible opportunity to connect and unite, renew our passion for the Y, and be inspired to advance the work of YMCAs in the United States.


John already knew about much of the good work that the YMCA does in Delaware, but before attending this event, he did not fully grasp the impact of the Y movement. Together, Ys from all over the world are battling chronic disease, mental health, homelessness, social injustices and so much more. To be in a room full of thousands of people all fighting every day to make the world a better place was nothing short of amazing.


To learn more about the Y’s Delaware Promise, click here.

USSSA All American

Amy Taylor, Partner, is proud of her daughter Avery, who made the USSSA All American softball team. Avery plays 3rd base for her team who played a week long tournament in Viera, FL. Avery’s team made it all the way to the championship but lost the final game. This is still an amazing accomplishment. Good job, Avery!


When are you not fine?

When you are fined!

There are many sections of the Workers’ Compensation Act that may subject employers/carriers to fines, as follows:

·      19 Del. C. §2313 – Where an employer or insurance carrier fails within 10 days after knowledge of the occurrence of an accident resulting in personal injury to file a First Report of Injury, the employer may be fined between $100.00-$250.00. Reports made under this section are not admissible in evidence against the employer.

·      19 Del. C. §2320(8) – “Costs legally incurred may be taxed against either party or apportioned between the parties at the sound discretion of the Board, as the justice of the case may require.”

·      19 Del. C. §2322E(d) – Within 14 days of the issuance of an Agreement for any period of total disability, the employer shall provide to the health care provider/physician most responsible for the treatment of the employee’s work-related injury and to the employer’s insurance carrier, if applicable, a report of modified duty jobs which may be available to the employee. The insurance carrier for an insured employer shall send to such employer the aforementioned report for completion, and shall be independently responsible for providing a completed report of modified duty jobs to the health care provider/physician. 19 Del. C. 2322F(g) provides for fines of between $1,000.00-$5,000.00.

·      19 Del. C. §2322F(h) – An employer or insurance carrier shall be required to pay a health care invoice within 30 days of receipt of the invoice as long as the claim contains substantially all the required data elements necessary to adjudicate the invoice, unless the invoice is contested in good faith. If the contested invoice pertains to an acknowledged compensable claim and the denial is based upon compliance with the health care payment system and/or health care practice guidelines, it shall be referred to utilization review. Any such referral to utilization review shall be made within 15 days of denial. Unpaid invoices shall incur interest at a rate of 1% per month payable to the provider. 19 Del. C. §2322F(g) allows for fines of between $1,000.00-$5,000.00.

·      19 Del. C. §2346 – The Board may impose a fine not to exceed $500.00 for each use of the term “independent medical examination” or “IME”.

·      19 Del. C. §2362 – Requires payment of final Board Awards and settlement agreements within 14 days, and permits fines of between $500.00-$2,500.00 for non-compliance.

·      Huffman – If a Board Award or Agreement between the parties is not paid within 30 days of a final Award or Agreement, claimant can assert a Huffman demand under the Wage Payment Collections Act. If not paid within 30 days of the demand, Huffman sanctions/penalties include a liquidated damage payment of 10% per day of the outstanding balance up to 100% liquidated damages, costs of any filing (Superior Court Complaint) and a claimant’s attorney’s fee (rate of whatever is reasonable — could be +/- $300.00 per hour). This is in addition to any other penalties otherwise available under the Workers’ Compensation Act.

·      19 Del. C. §2365 retaliation – fines of between $500.00-$3,000.00.

·      19 Del. C. §2374 – minimum of $250.00 per day or $10.00 per employee, whichever is greater, for the time period no workers’ compensation insurance policy is in effect.

·      19 Del. C. §2386 – whenever an insurance company or self-insurer violates this chapter, neglects or refuses to comply with this chapter, or willfully makes any false or fraudulent statement of its business or condition or a false or fraudulent return, it shall be fined between $100.00-$1,000.00 per offense.

Should you have any questions, please contact any attorney in our Workers’ Compensation Department.


Plaintiff Fails to File Timely Appeal

Plaintiff filed for unemployment benefits following his termination with Defendant. The Claims Deputy determined that the Plaintiff was ineligible for unemployment benefits. The Plaintiff appealed to the Appeals Referee. After a hearing, the Appeals Referee determined that the Plaintiff failed to file a timely appeal from the Claims Deputy’s determination. The time to appeal is statutory and a party has 10 days from the decision to appeal.

Thereafter, the Plaintiff appealed the decision to the Unemployment Board.   Plaintiff argued that the notices he received from the Claims Deputy and Appeals Referee were not timely delivered to his correct address.  The Board upheld the Appeals Referee decision.

The Plaintiff then filed an appeal to the Superior Court, who will not overturn the Board’s decision so long as it is supported by substantial evidence. Substantial evidence means relevant evidence that a reasonable mind might accept as adequate to support a conclusion.  The Court will also not disturb the Board’s decision unless the Court finds that the Board abused their discretion, meaning that the Board “acted arbitrarily or capriciously.”

The Court affirmed the Board’s decision, finding that the Board’s decision was supported by the record and was free from legal error.  The Court explained that the Referee’s decision becomes final unless a party files an appear request within 10 days from the date that the Referee’s decision is mailed to the claimant’s address of record. In this case, the Plaintiff did not submit an appeal within the period allowed. Further, the Plaintiff failed to provide any evidence that his address on file was incorrect. Therefore, the Court did not find any evidence that the Department of Labor made an error that prevented the Plaintiff from filing a timely appeal.

Davis v. Walmart, (Del. Super., 2023)


Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our liability law department.


What’s in a Wave? Possible Negligence in Waving another Driver into Traffic

This case arose out of an intersectional accident when plaintiff, who was attempting to make a lefthand turn, was reportedly waved across by the driver of a large truck. The truck, which was stopped in the lefthand lane of opposing traffic, obscured plaintiff’s view of the other opposing lanes. As plaintiff turned left in front of the truck, she was struck by a vehicle in the next lane over. The driver of the truck was never identified, so plaintiff brough suit against her personal insurance for uninsured motorist benefits based on the truck driver’s alleged negligence.

Plaintiff testified during her deposition that she interpreted the truck driver’s wave as an indication that it was safe to cross. The Court acknowledged that summary judgment may be appropriate when a driver’s wave had no influence on the other driver’s actions, and cited several Delaware cases when summary judgment was granted under similar circumstances. See, e.g.; Stansbury v. Goodwin, 2016 WL 3619920 (Del. Super. June 27, 2016); Evans v. Lattomus, 2011 WL 664046 (Del. Super. Feb. 8, 2011); and Johnson v. Magee, 2007 WL 4248523 (Del. Super. Nov. 30, 2007). However, here the court reviewed plaintiff’s deposition testimony and concluded that her decision to make the lefthand turn was influenced by the driver’s wave, in addition to her independent judgment. Where plaintiff’s actions were influenced, in part, by the truck driver’s wave, it is the factfinders’ job to assess the negligence of the waving driver, and summary judgment was denied.

The Court did, however, grant the striking vehicle driver’s motion for summary judgment, reasserting that “Delaware applies the common law rule that no one has a duty to anticipate another’s negligence” and, similarly, that a driver has no duty to slow down “in anticipation of a danger that has net yet become apparent.” The Court found that the striking driver, who had the right of way, had no reason to anticipate that plaintiff would cross his lane of travel in front of the stopped truck.

Glass-Hill v. Gordon and State Farm Mutual Auto. Ins. Co., C.A. No. N21C-11-204 SPL (Del. Super. Aug. 14, 2023)