February 2017

The Lumbar Disc Bone Is Not Connected to The Thoracic Disc Bone,
Board rejects the Skip Phenomena Theory of Adjacent Segment Disease
            In Kisco v. Kitchen Kapers, the Industrial Accident Board addressed the issue of whether compensable lumbar spine multiple surgeries at the L3 to S1 disc levels caused adjacent segment disease four to five disc levels away at the T10-11 disc level, in support of which claim the claimant offered medical expert testimony of the “skip phenomena”.
           The claimant, who sustained a compensable lumbar spine work injury in 2006 and underwent three lower back surgeries including a lateral discectomy at L3-L4 and L4-L5 with a fusion from L3-S1, sought compensability of a thoracic spine condition and related surgery performed in 2016. The thoracic spine condition was not discovered until August 2014 when the claimant underwent an MRI of the thoracic spine for a spinal cord stimulator evaluation. This MRI showed multilevel degenerative disc disease and significant progression of a disc herniation at T10-T11. Surgery was recommended due to the concern of cord compression. The claimant filed a petition, arguing that the thoracic spine condition is causally related to the 2006 work accident and lumbar surgeries.
            The claimant’s medical expert Dr. Rastogi testified that although the claimant’s herniation is four levels from the prior compensable fusion, the herniation is an adjacent segment problem. Dr. Rastogi explained that “typically when adjacent segments are seen, they are at the next level; but in situations where there are multiple deteriorated levels involved where osteophytes have formed, the motion has diminished above that and the first area of weakness will instead be affected,” which he referred to as a “skip phenomena”.  He noted that the degeneration and limitation in motion at the adjacent segments above the fusion caused the fusion to be actually longer than where it occurred, and therefore T10-T11 is now the weakest link, causing the herniation at this level to progress.
            The employer’s medical expert Dr. Kalamchi disagreed, explaining that the herniation at T10-T11 is not at a level adjacent to the fusion surgery, and the levels between the herniation and the levels at which the lumbar surgery was performed are not deteriorated. Dr. Kalamchi noted that there is support for adjacent segment disease at the levels immediately adjacent or possibly one level away, but not four or five levels away from a lumbar fusion. Thus, the employer’s expert found that the thoracic spine condition was not causally related to the February 2006 work accident or subsequent surgeries.
The Board found that because the studies showed multilevel degenerative changes throughout the thoracic spine, and that T10-T11 had progressed over time, that the thoracic herniation could be simply caused by this degeneration. The Board agreed with the Dr Kalamchi that adjacent segment disease does not apply to the claimant, as the levels purportedly affected are not adjacent to the levels at which the fusion surgeries occurred. The Board also rejected the “skip phenomena” theory set forth by the claimant’s expert. Thus, the Board held that the thoracic spine condition and thoracic spine surgery are not causally related to the February 2006 work accident and subsequent lumbar spine surgeries.
Kisko v. Kitchen Kapers, IAB Hearing No. 1305756 (December 16, 2016).
If you have any questions regarding this case, please contact  John J. Ellis, senior associate in our Workers’ Compensation Department, who successfully defended this claim, or any attorney in our Workers’ Compensation Department.

Auditor Misses Whistleblower Claim,
Correctly Accounts For Others
      Plaintiff, Charles Pratt, Jr., filed litigation against his former employer, M&T Bank, regarding the circumstances related to his termination. More specifically, Mr. Platt, an auditor, alleges he was terminated for reporting security violations related to data privacy laws and objecting to M&T Bank’s misleading reporting of such violations. Additionally, he claims his job title and position were improperly changed within six weeks of starting the job.
     In support of the claims, Mr. Pratt alleged violations of  the Delaware Whistleblower Protection Act, codified in 19 Del. C. § 1701, and the implied covenant of good faith and fair dealings underpinning all Delaware contracts. Thereafter, M&T Bank moved for summary judgment for failure to state a claim.
      In analyzing the applicability of the Delaware Whistleblower Protection Act, the court reviewed the statute’s language and legislative intent. The Act requires (among other elements) that the reported employer misconduct violate “a financial management standard or accounting standard…” The court concluded that such language only related to finance matters and not data privacy. Therefore, summary judgment was granted on the Whistleblower claims.
     The court, however, reached a different conclusion regarding the implied covenant of good faith and fair dealings.. Delaware courts recognize a cause of action when an employee’s termination violates public policy, and when an employee accepts a position based on a misrepresentation by the employer. There was evidence supporting M&T Bank’s defense that the termination was related to poor performance; however, a genuine dispute of material fact exists to survive summary judgment.
     For more information on this matter or other legal questions, please feel free to contact any attorney in our Employment Law Department.
Pratt v. M&T Bank Corp., 2017 U.S. Dist. LEXIS 7451 (D. Del. Jan. 19, 2017)

Trespasser Beware No Liability For Driveway  Slip and Fall
     Defendant successfully avails the Delaware Guest Premises Statute to defeat a premise liability action arising from a fall on a crack in a private driveway.
     On May 15, 2014, the plaintiff, Amanda Francois, was walking her dog on a public residential sidewalk. During the walk, she stepped off the public sidewalk and onto the private driveway of the defendant, Lucinda Elom. At that time, Plaintiff allegedly tripped over a crack in the driveway and sustained injuries to her right knee. Plaintiff commenced litigation against Defendant for failure to warn, repair, and inspect the driveway. Further, Plaintiff alleged such failures amounted to willful and wanton conduct due to Defendant’s knowledge of the driveway’s condition.
     The Defendant moved for summary judgment under the theory that Plaintiff at all times was a trespasser on the premises; therefore, the defendant could not be found liable under the Delaware Guest Premises Statute, codified in 25 Del. C. § 1501, unless she willfully or wantonly disregarded the defective condition.
     The court reviewed case law for the distinction between negligence and “willful or wanton” conduct in the context of premise liability litigation. Noting that the latter reflects a ‘conscious indifference’ or an ‘I-don’t-care attitude’ and includes the elements of consciousness of conduct, realization of probability of injury, and disregard of the consequences.
     In granting Defendant’s motion, the court cited the absence of evidence in the record that Defendant knew of the defective condition or disregarded repairing it. In fact, Defendant testified she never had concerns about the condition of the driveway and no one had ever fallen or requested repair.
     For more information on this matter or other legal questions, feel free to contact Michael W. Mitchell or any attorney in our Liability Department.
Francois v. Elom, 2017 Del. Super. LEXIS 24 (Jan. 17, 2017).

Election Poll Workers, Vital to the Democratic Process, But Not Employee Entitled to
Workers’ Compensation
         On January 31, 2017, in the case of Vail v State of Delaware, the Industrial Accident Board issued a Decision addressing a never before decided issue under Delaware law – – whether an election worker qualifies as an employee under the Delaware Workers’ Compensation Act.
        The Board held that the worker was not an employee because her position qualified as “casual employment.” Delaware law excludes from coverage any person whose employment is casual and not in the regular course of the trade, business, profession, or occupation of the employer. The Board felt that poll working was not in the regular course of the trade or business of the Department of Elections. While DOE does run elections for the State, it is not “the business of the DOE.” Its purpose or business is to ensure free and fair elections.
      The Board further noted that even if claimant were not a casual employee, she would qualify as an independent contractor and not an employee, so that workers’ compensation remedies would remain unavailable. To this end, the Board extensively discussed the level of “control” that the DOE had over the claimant. Traditionally, an employee for workers’ compensation purposes is an individual over whom an employer has a high degree of control concerning activities, performance of job duties, and the like. The Board noted that while election workers are extensively restricted in their activities and performance, this “control” is derived from statute, not the DOE. The DOE has little to no discretion or control over how elections are held or how the poll workers do their jobs – – it simply follows Delaware law regarding election procedure.
      If you have any questions or concerns regarding this Decision, please contact Anthony M. Frabizzio, Gregory P. Skolnik, or any other of our workers’ compensation attorneys.
Vail v. State of Delaware, IAB Hrg. No. 1442031 (Jan. 31, 2017)

  This Day in Legal History:
February 17th, 1933
       The Blaine Act was sponsored by Wisconsin Senator John J. Blaine and passed by the United States Senate on February 17, 1933. It initiated the repeal of the Eighteenth Amendment to the United States Constitution, which established Prohibition (sometimes referred to as the Noble Experiment) and which was a national ban on the sale, manufacture, and transportation of alcohol, and which was the law of the land from 1920 to 1933. The ban was mandated by the Eighteenth Amendment to the Constitution, and the Volstead Act which set down the rules for enforcing the ban, as well as defining which “intoxicating liquors” were prohibited. Prohibition ended with the ratification of the Twenty-first Amendment, which repealed the Eighteenth Amendment, on December 5, 1933.

Staff Personal Interest
       Attorneys Gregory P. Skolnik & Michael W. Mitchell  are giving back to our community by coaching Mock Trial at Mt. Pleasant High School. We are proud of their continued community involvement.
Workers’ Compensation Seminar
 Amy M.  Taylor, Workers’ Compensation Department Senior Associate will be a speaker at the upcoming Interplay of Employee Benefits Seminar sponsored by Sterling Education Services being held on April 13, 2017 from 8:30 a.m. – 4:30 p.m. at the Crowne Plaza in Wilmington Delaware. Amy will be presenting on the topic of workers’ compensation and how the law interplays with employee benefits. For more information on this event please follow the link to review the Brochure Sterling Education.
 Anthony M.  Frabizzio, Workers’ Compensation Department Partner, and John J.  Ellis, Workers’ Compensation Department Senior Associate, will be panel speakers at the annual Delaware Workers’ Compensation Seminar sponsored by the Delaware State Bar Association being held on May 2, 2017 from 8:30 to 4:30 at the Chase Center on the Wilmington waterfront. Anthony will be panel speaker presenting on the topic of the Delaware Workers’ Compensation Death Benefit Statute. John will be a panel speaker presenting on the topic of head injury cases and medical treatment protocols for concussions. Please join Anthony and John and all of our workers’ compensation attorneys for this always informative, lively and educational event.