December 2018

On December 7th, Heckler & Frabizzio celebrated our annual Holiday Party at the River Rock Kitchen on the Riverfront in Wilmington, DE. We all had a great time toasting to another successful year and enjoying each others company. From all of us at the Firm, Happy Holidays!
Heckler & Frabizzio welcomes Attorney Michael Torrice to the Firm! Mr. Torrice is an associate in the workers’ compensation department. He received his bachelor’s degree in Economics from Rutgers University in 2007 and obtained his J.D. from Widener University School of Law with a certificate in business organizations in 2013. Michael was admitted to the New Jersey Bar in 2013 and the Delaware Bar in 2014. After law school, Michael completed a judicial clerkship with the Honorable Eric M. Davis in the Superior Court of Delaware. Following his clerkship, Michael worked as an associate at a corporate litigation boutique, where he gained experience as part of a trial team culminating in an eight-week trial in the District Court for the District of Delaware. In his spare time, Michael enjoys playing golf, hiking, traveling, and spending time with family and friends.
Firm Administrator Page Hyson hosted an in house training on toxic employees. The training included identifying toxic behaviors, how to address these behaviors as well as tips on separating yourself from toxic people. This topic is prevalent in many of our lives and it is valuable to understand how to handle toxic individuals.

 Hip Bone Is Not Connected To The Knee Bone
Board Rejects Claimant’s Petition
Claimant was involved in a June 5, 2015 work accident while working as a State Trooper conducting a training exercise, when she was kicked in the right knee, causing a tibial plateau fracture. This injury was accepted as compensable by the employer, and Claimant was non-weight bearing for 12 weeks, when she was sent to physical therapy and gradually transitioned to full weightbearing by December 2015, followed by a return to work in a full duty capacity as a State Trooper.
Almost one year later, in November 2016, Claimant was seen for a permanency evaluation with Dr. Rodgers, at which time she told Dr. Rodgers that in June 2016 she began developing right hip pain. Dr. Rodgers provided

no opinion on causation of the hip. In January 2017, Claimant began treating with Dr. Straight for the hip. A Petition was subsequently filed alleging that the hip was related to the 2015 accident and seeking payment of medical treatment for same. Dr. Straight’s theory of causation was that the claimant had been released to return to work too quickly following her tibial plateau fracture, when there was still weakness in the right quad, which is connected to the hip. He argued that this weakness caused Claimant to develop the right hip pain gradually upon her return to work.
The Board rejected Dr. Straight’s theory, relying on the opinion of the defense medical expert, Dr. Piccioni. Dr. Piccioni noted that he formerly was a physician for the Delaware State Police Academy, so he was well aware of the return to duty fitness requirements, which were similar to what would be required to return a collegiate or professional athlete to the field of play. He testified that the medical records established that Claimant was fit for duty when she returned in December 2015. Testing of the quad muscle and other areas, at the conclusion of therapy, supported this opinion. Notwithstanding the above, sometimes the treating physicians may “get it wrong” and patients may experience discomfort on return to work. However, he emphasized that this discomfort would be rather immediate, in the days and weeks following return to work. Even accepting Claimant’s history at face value, there was a six-month delay in the onset of hip symptoms, so that he simply could not causally relate same to the work accident. The Board noted that Claimant testified that she was required to use a 20lb belt when she returned to work, making it even more probable that if her symptoms were related to returning to work too soon, that the symptoms would have been experienced rather immediately.
Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.
Kristen Carroll v. State of Delaware, IAB Hrg. No. 1429155 (Nov. 14, 2018).


 Let That Phone Call Go To Voice Mail
A motor vehicle accident occurred on July 19, 2015. Prior to the accident, Defendant had finished a 10-hour shift as manager of a store and headed home around 1:00 a.m. Plaintiffs were stopped at a red light at an intersection. Defendant was approaching the intersection, traveling 50-55 miles per hour (in a 45 miles per hour zone) when he received a phone call from his father. He answered the call on speaker and placed the phone in his cup holder during the conversation. Defendant observed the traffic light was green and did not see the light turn yellow to red when he drove through the intersection, and collided with Plaintiffs’ vehicle.
Plaintiff sought punitive damages against Defendant, arguing he was holding his phone at the time of the collision, distracted by a conversation, impaired by being tired and hungry, and failed to pay attention to the upcoming intersection light for at least a minute.
Defendant moved for partial summary judgment on the issue of punitive damages, arguing that there was no evidence he acted intentionally, wantonly, or with willful disregard.
The Court denied Defendant’s motion finding sufficient facts for a jury to conclude that Defendant acted with conscious indifference, upon which an award of punitive damages could be based. Specifically, the court noted that Defendant failed to observe the traffic light for more than a minute, was distracted talking on his phone, and was traveling up to 10 miles over the speed limit.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Ford v. Taylor, 2018 Del. Super. LEXIS 1313 (Del. Super. Ct. November 15, 2018)

Transporting to Higher Pay:
Court Reversed MERB Decision but Grants Original Salary Increase Request
Employees for the State of Delaware are subject to a merit system, under which class designations are assigned, each having their own paygrades/ assigned wage range. Under Merit Rule 4.6, upon promotion, an employee is entitled to “either the minimum salary of the higher paygrade or an increase of 5%, whichever is greater.” Further, an agency may grant a greater salary increase, but same cannot exceed 85% of the midpoint of the paygrade to which they are assigned. If an agency wishes to extend a salary above 85% of the midpoint, approval must be given by the Department of Human Resources. Should an employee have a grievance, either salary related or otherwise, the Merit Rules also dictate the procedure they must follow. Ultimately, the Merit Employee Relations Board (“MERB”) has jurisdiction over timely filed grievance appeals. The decisions of the MERB may then be appealed to the Delaware Superior Court.
In Department of Transportation v. Keeley, DelDOT was seeking the reversal of the MERB’s decision granting Grievant, Laura Keeley’s salary increase of 85% of the mid-point for her paygrade. In this case, Keeley was a former employee of DelDOT who was subject to recommendation for a career ladder promotion. Based on this recommendation, Keeley sought an advanced salary classification of 85% of the midpoint for her paygrade. When she received less than the requested increase, Keeley filed a grievance, increasing her request to 90% of the midpoint. After a course of grievance appeals, the matter was further appealed by Keeley to the MERB. In its March 24, 2018 Decision, the MERB found that DelDOT had failed to timely appeal the intial “Step 1” grievance finding, and therefore, dismissed the appeal for lack of subject matter jurisdiction, reinstating the “Step 1” finding in favor of Keeley. However, the MERB then went a step further and ordered DelDOT to adjust Keeley’s pay to the 85% midpoint and issue backpay.
In finding partially for DelDOT, the Court found that once the MERB made the determination that it did not have jurisdiction over the matter, it did not have the authority to issue any further determination, to include the order that DelDOT issue a salary increase as noted. Therefore, the Court found that the MERB order to increase Keeley’s pay was invalid. However, in seeking to make a final determination, the Court did order that the “Step 1” finding be reinstated. Noting that her supervisor did not have the authority to approve a 90% of midpoint increase, the Court found that Keeley was entitled to the 85% of midpoint award and therefore, and despite overturning the MERB’s finding, ordered DelDOT to issue backpay.
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
Dep’t of Transp. v. Keeley, C.A. No. N18A-06-008 SKR (Del. Super. Nov. 30, 2018).

And Notable Events
December 12th
There were so many significant and interesting legal milestones and notable events on this date, December 12, we are offering an overview of a selection.
1474 –  Queen Isabella of Spain crowns herself Queen of                     Castile and Aragon.
1791 –  The Bank of North America opens at Carpenter’s                     Hall, Philadelphia.
1800 –  Washington, DC, was established as the capital of                   the United States.
1822 – Mexico officially recognized as an independent                        nation by US.
1874 – Hawaii King David Kalakaua is first King to visit the             United Sates as a guest of Ulysses S. Grant at the first              State Dinner at the White House.
1899 – George Grant patented the wooden golf tee.
1901 – The first radio signal to cross the Atlantic was picked             up near St. John’s Newfoundland, by inventor                          Guglielmo Marconi.
1911 – Delhi replaces Calcutta as the capital of India.
1914 – The largest one-day percentage drop in the history of             Dow Jones Industrial Average, down 24.39%.
1925 – Arthur Heinman coins the term “motel” and opens                 the first motel in the world, Motel Inn, located in San              Luis Obispo, CA.
1930 – Baseball Rules Committee greatly revises the rule                   book, ball bouncing into stands is no longer a                            homerun, and is now a double.
1937 – NBC/RCA send the first mobile-TV vans onto the                    streets of New York City.
1946 – ‘Tide’ detergent introduced.
1955 – British engineer Christopher Cockerell patented the                first hovercraft.
1966 – US Supreme Court Votes 4-3 allowing Baseball’s                      Milwaukee Braves to relocate to Atlanta.
1980 – US Copyright law is amended to include protection                of computer programs.
1982 – The  “Snowplow Game” is played when a snowstorm              holds a New England vs Miami football game                          scoreless, until Mark Henderson, a convict on work                release, on orders of Patriots’ coach Ron Meyer,                       clears a path for the field goal attempt for John                        Smith, which is successful and wins the game for the              Patriots 3-0.
1991 – At the Stanford Linear Accelerator Center (SLAC) in            California, the first web server outside of Europe was             installed.
1997 – The US Justice Department ordered Microsoft to sell               its Internet browser separately from its Windows                   operating system to prevent it from building a                         monopoly of Web access programs.