WORKERS’ COMPENSATION REPORTS

Board Finds Claimant Not Entitled to Partial Disability Due to Voluntary Retirement

Employer filed Petition to terminate Ongoing Total Disability benefits due to claimant’s modified duty release and voluntary retirement.

The Board agreed, granting the Petition and finding that the claimant voluntarily withdrew from the labor market and did not demonstrate any intent to return to work. Claimant testified that she chose to take an early retirement when she reached the eligible age/service combination so she could care for her sick mother. She admitted filing for retirement before the work accident, and retiring on the date indicated in her signed retirement paperwork. Claimant said she could not go back to work until her mother was accepted into an adult day care program about one year after the accident. However, the claimant only applied for three jobs in the 6 months since her mother was accepted into that program, and she could not provide any documentation of these efforts prior to Hearing. The defense medical expert testified that at this examination, claimant said that she was not looking for work. The Board noted that the timing of the job applications in the month before Hearing “suggests they have been made for litigation purposes rather than as a legitimate effort to find a job.”

Anthony M. Frabizzio and Gregory P. Skolnik, Attorneys for the Employer

Perkins v. State of Delaware, IAB Hrg. No. 1412670 (December 17, 2015).

LITIGATION CASE LAW UPDATE

 State Farm Defeats Motion to Amend the Complaint to Include Bad Faith

In a particularly contentious discovery dispute, the plaintiff denied having skied after a car accident, but prior to cervical surgery. However, a posting on Facebook indicated that he had in fact gone skiing during the time in question. After several attempts to obtain discovery of the skiing trip, plaintiff’s counsel moved to amend the Complaint to include an allegation of bad faith. Plaintiff’s counsel alleged that the plaintiff was being harassed by the insurance carrier through these attempts to obtain information about the skiing vacation. During one of the motions to compel and to amend the complaint, Judge Jurden asked for information pertaining to an IME that was the basis for the PIP denial, and requested an Affidavit from the adjuster as to whether the adjuster reviewed a tort file during the handling of PIP claim. The allegation was that the adjuster reviewed the plaintiff’s own claim file, and a question arose as to whether or not that would be sufficient for a claim for bad faith.

Defendant’s counsel produced the Affidavit and made it clear that the plaintiff’s claim file was not reviewed – rather, the tort defendant’s claim file had been reviewed and that the adjuster had authorization granted by the plaintiff to review any medical records, bills or other information needed to substantiate a claim. While the opinion denying the Motion to Amend for bad faith did not state the propriety of that maneuver, Judge Jurden did reiterate the position, but then explained that because the report from Dr. Abaluck had been used to decide whether a plaintiff’s PIP claim was compensable, that there is a basis for the PIP denial decision for Bad Faith, and the amendment would be futile. A bad faith claim requires an absence of any reasonable circumstance or set of circumstances to deny a claim, and if an IME report was produced, that would be a basis for denial. Therefore, an amendment to the Complaint would be futile, and the amendment was denied.

The Judge did not state that it was improper or proper for an adjuster to review another claim file in investigating a claim. Please feel free to call Patrick Rock or any of the attorneys in the Liability Department for a discussion on this case.

Patrick G. Rock, Firm Partner for Defendant

Esposito v. State Farm, C.A. No. N14C-07-114 JRJ (January 27, 2016).

EMPLOYMENT LAW UPDATE

Delaware Minimum Wage – Vote to Increase

The State of Delaware has recently passed a bill that will gradually increase the minimum wage to $10.25 an hour by 2020. This bill is now going to the House for approval after it very narrowly passed the Senate on January 27, 2016. Beginning in 2017, the minimum wage will grow by 50 cents a year if the bill passes in its current form. Great disparity between the political parties can be observed in the breakdown of votes on this pay rate increase. More specifically, eleven out of twelve Democrats voted yes, while all nine Republicans voted against this bill.

The topic of minimum wage has frequently sparked nationwide debate, and has even been a cause of outrage for many citizens. Opponents of this recent bill maintain that the wage increase will actually cause great economical damage, because employers will face a heightened cost of labor. Their theory is that this will ultimately compel businesses to dismiss their workers, transfer out of state, or close permanently.  From their standpoint, the only other option would be to increase costs to match the inflated rate of pay, which merely feeds into this vicious cycle. On the other hand, proponents of the bill believe that raising the minimum wage would greatly assist impoverished families and revitalize an otherwise stagnant consumer economy by bringing in more money to encourage spending.

Looking back on recent wage hikes, the General Assembly approved a pay rate increase in 2014. By 2015, the minimum wage had risen to $8.25 an hour.  In the past, a $10.10 federal minimum wage was even advocated by President Barack Obama. However, Congress has yet to act on this proposal. To shed some light on the Mid-Atlantic states, present hourly minimum wages include: Delaware: $8.25 currently; $10.25 if pending legislation passes. Maryland: $8.25 currently; increasing to $10.10 by 2018. Pennsylvania: $7.25; and New Jersey: $8.38; increases based on cost of living.

Alison Purzycki, Paralegal for attorneys John W. Morgan and Amy M. Taylor.

Albright, Matthew. “Delaware Senate Approves $10.25 Minimum Wage.” www.delawareonline.com. The News Journal, 27 Jan. 2016. Web. 9 Feb. 2016.

ANNOUNCEMENTS

Mitchell admitted to Federal District Court Bar

We are pleased to announce that Mike Mitchell was sworn into the Federal District Court Bar on January 21, 2016.  The Federal District Court is a separate bar and a separate admission ceremony from the Delaware State Bar. It was the privilege of firm partner Patrick Rock to move for his admission.  We are also pleased to congratulate attorney Mike Mitchell for his directed verdict which he won in the first JP Trial in Delaware on January 20, 2016.

H&F Welcomes Michael A. Pedicone

We are pleased to welcome new attorney Michael Pedicone to Heckler and Frabizzio! Michael Pedicone has joined the firm in the liability department. He has been licensed since 1985, and has substantial jury trial experience. He has handled both plaintiff’s and defendant’s cases, with the bulk of his experience on the defense side.  He earned his law degree from Delaware Law School and is a lifelong Delaware resident.

Rock Becomes Member of the

American Board of Trial Advocates

We are pleased to congratulate firm partner Patrick Rock for his success at being accepted to the American Board of Trial Advocates! This requires an attorney to try more than twenty jury trials, and to be approved by the Membership Committee. Heckler & Frabizzio Law Firm congratulates Mr. Rock for this achievement.

Gilbert Presents at the

National Law Institute Seminar

Heckler & Frabizzio law firm partner John Gilbert was a faculty presenter at the National Law Institute Seminar on February 10, 2016. The seminar is entitled “Human Resource Law: What You Need To Know”. It took place at the Sheraton Wilmington South Hotel on 365 Airport Rd. New Castle, DE 19720 from 9:00 a.m. to 4:30 p.m. Topics that Mr. Gilbert presented on include: Evaluating Employee Performance While Mitigating Liability, Employee Discipline Plan and Documentation, Legal vs. Illegal Reasons for Terminating an Employee, Disciplining an Employee without Fearing a Retaliation Claim, and Workers’ Compensation Implications. For further information, please contact John Gilbert regarding any Employment Law or Workers Compensation issues.