December 2020

Board Rejects Permanency Arguments from Hired Gun
In 2017, Claimant slipped and fell, injuring her knee. In 2020, Claimant filed a Petition alleging 6% permanency to her left lower extremity, specifically the knee, based upon Dr. Bandera’s opinion, relying on the 5th Edition of the AMA Guidelines for Rating Permanent Impairment.
The Board denied the Petition, relying on the opinion of the defense medical expert, Dr. Piccioni. The Board noted that unlike Dr. Bandera, Dr. Piccioni is a Board certified orthopedic surgeon. Dr. Piccioni’s review of the records of claimant’s treating orthopedic surgeon, Dr. Leitman, showed that claimant recovered fully from her injuries within 2-3 months, when she was released to full duty and to be seen as needed. Dr. Piccioni agreed with Dr. Leitman’s assessment that following the 2-3 month point, claimant’s knee was “benign.” No treating provider ever recommended claimant use any sort of ambulatory aid, proceed with injections, or discussed surgical options. Claimant only followed up with Dr. Leitman once after the 2-3 month mark, where he again referred to the knee as “benign.” The Board questioned Dr. Bandera (not a surgeon) going against the opinions of two orthopedic surgeons, especially as Dr. Bandera did not evaluate the claimant until over 2 years had elapsed following the work accident.
The Board was also very critical of Dr. Bandera’s attempts to analogize claimant’s knee bruise diagnosis with patella subluxation and fracture diagnoses in the 5th Edition of the AMA Guides, as Dr. Piccioni testified credibly that these were not appropriate comparisons. The Board agreed with Dr. Piccioni that the 6th Edition of the Guides, which allowed for a zero rating for claimant’s specific diagnosis, even with continued credible subjective complaints, provided a much more fair and accurate representation of claimant’s true functional abilities in the knee.
Should you have any questions concerning this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.
Darlene Cole v. State, IAB Hrg. No. 1463877 (Oct. 13, 2020).
Following a serious multi-vehicle automobile accident, Plaintiff filed suit against Defendants, a tractor-trailer Driver, and his Employer. In addition to compensatory damages, Plaintiff asserted a punitive damage claim against both Defendants assented Driver operated the vehicle in wanton disregard for the safety of others and Employer failed to train or terminate him despite a poor driving record.
Both Defendants moved for summary judgment on the punitive damage claim, arguing Plaintiff failed to cite evidence from which a jury reasonably could conclude their conduct rose to a level necessary to support such award. Further, Employer argued that it cannot be liable for punitive damages if Driver was merely negligent.
The Delaware Superior Court reiterated the heightened standard necessary to maintain a punitive damage claim which requires willful or wanton conduct that reflects a ‘conscious indifference’, as opposed to mere negligence alone. Nevertheless, the Court found that Driver’s record revealed a history of driving violations, collisions, and hours of service violations from which a jury reasonably could infer exhibited a pattern of inattentive driving and disobedience of safety standards. Further, the claim against Employer was direct (not based in vicarious liability) and therefore even if Driver is found merely negligent, a reasonable jury could conclude Employer was recklessly indifferent in training, monitoring, and sanctioning Driver. As such, Defendants’ Motion was denied.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Tighe v. Castillo, 2020 WL 6624977 (Del. Super. Ct. Nov. 12, 2020).
You Were Warned
Plaintiff worked as a part-time security guard for Defendant, beginning in October 2018. At the start of Plaintiff’s employment, Defendant was flexible with Plaintiff’s schedule and Plaintiff was allowed to take days off as needed. However, Plaintiff’s began having attendance and tardiness issues around December 2018 that lasted until April 2019, when she was eventually terminated.
Plaintiff received a verbal warning on March 22, 2019 and received a written warning in the form of an email from her supervisor on March 25, 2019 putting Plaintiff on notice that further issues would be considered insubordination. However, Plaintiff continued having attendance issues and was terminated on April 24, 2019.
Plaintiff filed for unemployment benefits, but her claim was denied as the Claims Deputy found Plaintiff was discharged for just cause. Plaintiff appealed to the Appeals Referee and Unemployment Insurance Board, both finding Plaintiff was terminated for just cause. Plaintiff then appealed to the Superior Court.
The Superior Court must determine whether the findings and conclusions of the Unemployment Insurance Board are free from legal error and whether they are supported by substantial evidence in the record.
Plaintiff argued that she should be awarded unemployment benefits because the Defendant tolerated Plaintiff’s attendance issues in the beginning and, therefore, argued that the Defendant failed to provide an unambiguous warning that termination would result if the absences continued.  However, the Court dismissed that argument as it was clear Plaintiff received warnings and her conduct did not improve despite the warnings. Next, Plaintiff argued that the email did not explicitly state that her absence would result in termination. However, the Court explained that Delaware law does not require a warning inform the employee of termination. Instead, the warning must put the employee on sufficient notice that her behavior was in violation of the Defendant’s policy, and the Court found that was done.
Therefore, the Court concluded that the record supports a finding that Defendant met its burden that Plaintiff was terminated for just cause and not eligible for unemployment benefits.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Harris, v. Delaware Department of Labor and The Unemployment Insurance Appeal Board, 2020 WL 7039092, at *1 (Del.Super., 2020)
Adjuster Continued Education Credits
Please join Gregory Skolnik and John Ellis, Partners, on January 25th from 1pm-4pm to learn all about adjuster code of ethics. This presentation is approved for 3 adjuster ethics credits in Delaware.
The State of Delaware requires resident and non resident licensed adjusters to complete the required 12 credits, including, 3 ethics credits every other year. The biennial license period begins on March 1st and ends the last day in February. If you need adjuster credits to satisfy the requirement by February 2021, or would like to join the presentation on November 19th, please contact Page Chase, Firm Administrator.
Firm Virtual Holiday Party
Heckler & Frabizizo celebrated our annual holiday party on December 10th. This year’s party was unlike any other event we have hosted. Our team gathered virtually hosted by to participate in fun games such as holiday trivia, and a team gingerbread man decorating contest. We all had a great time!