December 2017
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ANNOUNCEMENTS
WELCOME TO THE BAR!
Congratulations to our newest attorneys, Michele M. Subers and James T. Betts, on their admission to the Delaware Bar on December 13, 2017, when they were both sworn in at a special session of the Delaware Supreme Court. This is a great accomplishment and we are excited to have them both join our team at Heckler & Frabizzio.
HECKLER & FRABIZZIO PREEMINENT ATTORNEYS
Serving our clients is our #1 goal. Part of serving our clients includes litigating cases and mitigating losses. Below are the win / loss numbers for some of our most preeminent attorneys for 2017:
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EMPLOYMENT CASE LAW UPDATE
Unemployment Benefits Denied following Firing for Facebook Posts
 Under Delaware Law, an ex-employee may file for unemployment benefits following their termination. During a period of consideration by a Claims Deputy as to whether the employee is due unemployment benefits, the ex-employer may submit documentation showing that the employee was in fact terminated for “just cause.” “Just Cause” is defined as “a willful or wanton act or pattern of conduct in violation of the employer’s interest, the employee’s duties, or the employee’s expected standard of conduct.” In many cases, “just cause” can be shown by producing evidence showing a violation of the company’s handbook/ code of conduct.In Sharron Burke v. Child, Inc. and Unemployment Insurance Appeal Board, Sharron Burke (“Burke”) was previously employed as a part-time Family Visitation Center Counselor by Child, Inc. (“Employer”). On January 20, 2017, Burke was fired from her counseling position after Employer discovered that she had made harassing and threatening comments regarding other employees on her Facebook page. In addition to racist comments regarding other female co-workers, Burke also referred to co-workers as “Scallywags”, noted that she “had to cool off before [Burke] snatched the little bit of [locks]” a co-worker had “left on her head,” and when noting the age of her co-workers that “today’s generation need a good a** whippin’ to show respect.”
Based on the comments noted above, Burke was fired for violation of the Employer’s Workplace Violence policy. In affirming the Appeals Referee’s and the Board’s decision, the Superior Court noted that employer had submitted into evidence the Employee’s Personnel Policies Manual, Burke’s signed acknowledgement of the Policies, as well as Burke’s Facebook posts found to be in violation of the acknowledged policies. Further, the Court found that these materials, in addition to the fact that Burke had the opportunity to be heard and present evidence on her own behalf at the prior Hearings, gave the Board ample evidence to affirm the Appeals Referee’s finding that Burke had “acted willfully and wantonly in violation of the Employer’s interest when she violated the Employer’s Workplace Violence policy by posting harassing and threatening comments about her coworkers to Facebook.”
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
Sharron Burke v. Child, Inc. and Unemployment Ins. Appeal Bd., C.A. No. N17A-04-005 CEB (Del. Supr. Ct. Nov. 20, 2017).
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LITIGATION CASE LAW UPDATE
Workers Compensation Subrogation Right Fight:
Superior Court Denies Liability Carrier’s Motion to Dismiss
An Employee was involved in a motor vehicle accident while at work for his Employer. Employee received workers’ compensation benefits and filed suit against the Tortfeasor and his liability carrier. Employee, the Tortfeasor, and Tortfeasor’s Liability Carrier, entered into a settlement whereby Employee was paid $72,000.00 for his injuries. As a condition of that settlement, Employee signed a Release accepting responsibility to reimburse any workers’ compensation lien held by his Employer. Employer was not a party to the settlement, nor a signatory to the Release.
Employer filed a workers’ compensation subrogation lawsuit against Employee and Tortfeasor’s Liability Carrier, seeking reimbursement of its’ statutory lien. Tortfeasor’s Liability Carrier filed a Motion to Dismiss the lawsuit, alleging that the Release (to which Employer was not a party) insulated the Liability Carrier from responsibility for reimbursing the lien.
 The Superior Court denied the Motion to Dismiss. The Court noted that there very well could be a cross claim to be made by the Liability Carrier against the Employee under the terms of the Release. However, under Delaware law, Employer has a statutory right to reimbursement of its’ workers’ compensation lien, and that statutory right included the right to bring a direct action against the third-party Liability Carrier. This right is not affected by the Release, because Employer was not a party to the settlement nor a signatory to the Release.
Should you have any questions regarding this Decision, please contact Michael Mitchell, or any other attorney in our Liability Department.
P.J. Fitzpatrick, Inc. v. Stowell, C.A. No. N16C-12-234 ALR (Del. Super. Ct., Oct. 16, 2017)
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WORKERS’ COMPENSATION REPORT
Just Say NO To Drugs! That Is What The IAB Did….
On 11/06/17, the Board issued a Decision in the matter of Ayala v. Delaware Park, denying claimant’s Utilization Review Appeal regarding continued use of MS Contin and MSIR (morphine) medications, and ordered Employer to pay for a formal medically supervised treatment program for drug weaning. The Board accepted the opinion of Employer’s medical expert, Dr. Nathan Schwartz, over that of claimant’s treating phyiscan Dr. Moran, finding that the narcotic medications should be replaced with low level pain interventions, such as meditation, music therapy, biofeedback, stretching exercises, return to work, and use of NSAID and anti-neuropathic medications.
 The Board was critical of the fact that claimant had been on very high dosages of narcotic medications for years without any significant improvement in his pain levels or his functional capabilities, and had only made “one meager attempt” at decreasing his dosages in the months prior to Hearing. The Board also noted that claimant’s excessive pain complaints were inconsistent with recent imaging which showed an intact fusion with no hardware loosening, as well as EMG testing that showed normal nerve and motor function in the lower extremities. The Board accepted Dr. Schwartz’s opinion that it was likely that the claimant’s high pain complaints were the result of “opioid induced hyperalgesia,” meaning that claimant’s chronic narcotic use was increasing his pain perception. The Board also felt that psychological issues were playing a role in claimant’s non-organic presentation.
Should you have any questions regarding this Decision, or options to mitigate exposure for chronic opiate medications, please contact Maria Paris Newill, or any other attorney in our Workers’ Compensation Department.
Ayala v. Delaware Park, IAB Hrg. No. 1351941 (Nov. 6, 2017).
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THIS DAY IN LEGAL HISTORY
December 14, 1947
Initial Meeting Leading To The Founding Of NASCAR
Mechanic, William France, Sr., moved to Daytona Beach, Florida, from Washington, D.C., in 1935 to escape the Great Depression. He was familiar with the history of the area from the land speed record attempts. In the 1920s and 30s, Daytona Beach became known as the place to set world land speed records, supplanting France and Belgium as the preferred location, with 8 consecutive world records set between 1927 and 1935 at Daytona. France entered the 1936 Daytona event, finishing fifth, took over running the course in 1938 and promoted a few races before World War II. France had the notion that people would enjoy watching “stock car” races and he knew that drivers were frequently victimized by unscrupulous promoters who would leave events with all the money before drivers were paid. In 1947, he decided that racing would not grow without a formal sanctioning organization, standardized rules, regular schedule, and an organized championship. On December 14, 1947, France began talks with other influential racers and promoters at the Ebony Bar at the Streamline Hotel at Daytona Beach, Florida, that ended with the formation of NASCAR on February 21, 1948. Today, NASCAR is second only to the National Football League among professional sports franchises in terms of television viewers and fans in the United States. Internationally, its races are broadcast on television in over 150 countries.
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Everyone at Heckler & Frabizzio wishes you and yours a Joyous Holiday Season and a Happy New Year!
 From our Annual Holiday Party that occurred on December 8th.
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