December 2019

Claimant was involved in a compensable 2015 work accident involving a right wrist injury and compensable 2016 TFCC tendon repair surgery. Following Claimant’s recovery from this procedure she changed jobs to a new Employer and continued to complain of wrist pain. Ultimately further surgical intervention was recommended, described as an ulnar shortening osteotomy. Claimant filed a Petition seeking, among multiple other benefits, payment for this procedure.
The Board found in favor of Employer that the second surgery was not related to the 2015 work accident. The Board noted that when the first surgery occurred, claimant’s surgeon found a central TFCC tear that was most likely degenerative. There was no evidence of ulnar impaction syndrome listed in the operative report, which would have been appropriate to list had the surgeon appreciated a problem intraoperatively. There was no ulnar impaction related diagnosis for months after the surgery, until Claimant began working for a new employer in a clerical capacity which included a significant amount of repetitive activity. The Board accepted testimony from the defense medical expert that ulnar impaction symptoms will develop within a period of no more than several weeks if traumatically induced, which was not consistent with Claimant’s history. The Board found that it was noteworthy that even Claimant’s medical expert conceded that her ulnar impaction syndrome could have been caused by her intervening employment activities. Claimant also testified at hearing that her duties with the new employer “started to weigh on my hands” indicating that even she felt that her new job may have been a causative factor.
Should you have any questions concerning this Decision, please contact Nick Bittner, or any other attorney in our Workers’ Compensation Department.
Kenyatta Newton-Brooks v. State, IAB. No. 1434875 (Oct. 15, 2019).
Defendants Attack Plaintiffs Claims
Plaintiffs, a married lesbian couple in their fifties, were terminated from their coaching positions with Defendant. They filed lawsuits alleging discrimination based on their age and sexual orientation.
Defendants’ filed a Motion for Summary Judgment to dismiss Plaintiffs’ claims. Defendants asserted that the coaches were fired because it was believed their behavior was unprofessional towards the players. Specifically, a complaint was received that one of the Plaintiff’s hugged and kissed players and the players were uncomfortable approaching either of the Plaintiffs about the issue. Defendants attended volleyballs games in person and watched others online and observed one of the Plaintiff’s yelling at players in an aggressive tone. Further, Defendants received two separate complaints about the Plaintiffs claiming that the one of the Plaintiffs bullied players and forced a player to lift weights while she was sick and yelled at her for studying before a game. After receiving player feedback that included allegations of mental and verbal abuse, the Plaintiffs were fired.
Plaintiffs established their prima facie case of age discrimination, because they were both at least 40 years old, qualified for the position and replaced by younger individuals. However, the Court found that there was no reason to infer that the termination was based on age discrimination as a reasonable fact finder would conclude that Defendants fired the Plaintiffs because it was believed their behavior was unprofessional.
As for the sexual orientation claim, the Court found it unnecessary to resolve whether Plaintiffs have established a prima facie case of sexual orientation discrimination as the Plaintiffs could not show that the Defendants’ proffered “legitimate, nondiscriminatory” rational is pretextual. The Court further stated that a rational fact finder would have no reason to conclude that Defendants’ justifications are pretext for sexual orientation discrimination.
Therefore, the Court granted Defendants’ Motion for Summary Judgment.
Kenny v. University of Delaware, et al., No. 1:2017cv01156 (D. Del. 2019)
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Plaintiff slipped and fell while walking to her rented storage unit. She subsequently commenced litigation against Defendant, the owner of the storage unit, alleging that she fell in a poorly lit area with an accumulation of water.
The Defendant moved for summary judgment asserting that its Lease Agreement with the Plaintiff contained a limitation of liability clause that barred the Plaintiff’s claim and fully exculpated it from any liability to the Plaintiff for its own and its employees’ negligence. In response, the Plaintiff further alleged that the Defendant violated the New Castle County Property Maintenance Code by failing to maintain adequate lighting.
In granting the Defendant’s Motion for Summary Judgment, the Delaware Superior Court reviewed prior precedent related to the validity of a contractual release of prospective negligence. To be valid, such provisions must not be ambiguous, unconscionable, or against public policy.
The Court reviewed the specific language of the Lease Agreement and determined that it clearly and unequivocally limited Defendant’s liability from any “injury to persons” arising “from any cause, including . . . [the] negligence” of the Defendant. Further, that the Lease Agreement was not unconscionable as the Plaintiff had a meaningful choice when she entered into the agreement and she was free to accept its terms, or not.
Finally, the Court determined that the Lease Agreement did not violate public policy in that it did not impermissibly undermine statutory standards for violations where the individual is a member of the class protected by a statute. The New Castle County Property Maintenance Code is not a statute promulgated by the Delaware General Assembly or a Delaware adopted regulation that governs public storage units, and no evidence was provided that it disapproved of a release in this situation.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Hrycak v. Public Storage, Inc., 2019 Del. Super. LEXIS 469 (Sept. 30, 2019).d
On December 13th, Heckler & Frabizzio hosted our Annual Holiday Party at Tonic Bar and Grille in Wilmington, DE. Everyone had a great time, toasting to another successful year, and enjoying each other’s company. From all of us at the Firm, Happy Holidays!
The Delaware State Bar Association (DSBA), is hosting the Workers’ Compensation Breakfast Seminar on January 14th from 8:30 am – 12:00 pm at the Chase Center on the Riverfront. John Ellis, Partner, has been invited to speak on case law update. For more information about this event please visit