February 2018

Hot Off The Press: 
   20th Annual Report on the Status of Workers’ Compensation Case Management.
Please click the following link to review the report: 20th Annual Report

A Divided Urine Cup Cannot Stand
And Neither Can Dr. Falco’s Duplicative and Excessive Drug Screen Charges
Claimant was involved in two work accidents with the same Employer/Carrier. The first was a 1996 low back with surgery. Claimant’s second was in 2006, and involved neck and a two-level cervical spine fusion. Thereafter, claimant was treated with narcotic medications by Dr. Falco, who performed in house urine drug screens as well as sent samples to an outside lab. In the year before the filing of Claimant’s Petition seeking payment of the outside drug screens, Dr. Falco performed approximately 9 tests with the outside lab and multiple in-house tests, and billed for half the tests under the 1996 claim, and half under the 2006 claim. The total balance for all outside testing at issue in the Petition was over $17,000.00.
The Board rejected claimant’s Petition seeking payment of the outside urine drug screens as unreasonable and unnecessary. The Board noted it was not appropriate to administer separate drug screens for both claims when Dr. Falco was prescribing one medication regimen for both injuries. The Board found claimant was in the low risk category for opioid abuse. Claimant was treated by Dr. Falco for eleven years and never sought more medication than prescribed, never asked to fill prescriptions before they became due, and did not finish prescriptions early. There were office visits where she declined refills. All drug testing was compliant. There was no evidence that she attempted to get prescriptions from multiple providers. The Board also noted that at Hearing the claimant presented quite personably and articulately. She had been married for thirty-two years, rarely drinks alcohol, goes to the gym, participates in weight watchers, continues to work, and volunteers in a nursing facility. The Board cited Delaware Workers’ Compensation regulations which allow for no more than four in-house drug screens annually without pre-authorization; and do not allow for external drug screens unless the results of the in-house testing are not compliant. As such, the Board found that it was reasonable and necessary to administer 2-3 in-house drug screens total for the two claims combined annually, as well as possibly one random external drug test a year (but not every year and not to be done at the same visit as an in-house test).
Should you have any questions concerning this Decision, please contact Maria Paris Newill, or any other attorney in our Workers’ Compensation Department.
Virginia Corrigan v. Christiana Care, IAB Hrg. Nos. 106937, 1305750 (Jan. 11, 2018).


Freezing Rain, Unsafe As Snow, Remember That Before You Go
Continuing Storm Doctrine Update
On January 10, 2014, there was freezing rain throughout the day, with temperatures at about 32 degrees. A patron arrived at a convenience store and slipped on ice when he stepped out of his vehicle. It was undisputed that the ice upon which he slipped was caused by the rain freezing upon contact with the gasoline station premises.
The Plaintiff filed suit against the convenience store, alleging negligence on its part for failure to maintain the premises in a reasonably safe condition, failure to make reasonable inspections of the premises, failure to warn him of hazardous conditions that existed, and failure to remove ice at the pump where he fell.
The Defendant filed a motion for summary judgment, arguing that under the continuing storm doctrine it was permitted to wait until the freezing rain ended and a reasonable time thereafter before removing the ice from its premises. The Superior Court granted the motion and the Plaintiff appealed.
Generally, a landowner has a duty to exercise reasonable care in keeping its premises safe for the benefit of business invitees. However, under the continuing storm doctrine, it is reasonable for a business owner to wait until a storm has ended and a reasonable time thereafter to remove natural accumulations of ice and snow in the absence of unusual circumstances.
Plaintiff argued that if the business decides to remain open during a storm, its conduct should be judged by the traditional rule. The Supreme Court responded by explaining the need for businesses, like gas stations, to be open during storms to benefit people who have to travel. In addition, in active storm situations, customers are expected to be aware of the risks of falling and to take care to protect themselves. Some injuries are not the legal fault of anyone, they are just the result of the reality that nothing in life is entirely safe. The Supreme Court upheld the Superior Court’s decision concluding that the continuous storm doctrine applied to freezing rain as freezing rain is one of the trickiest situations to deal with.
Should you have any questions regarding this Decision, or any liability law question, please contact any attorney in our Liability Department.
Lanie v Speedway, 2018 Del. Lexis 6 (Del. January 8, 2018.)


Why A Post-it Password Reminder On Your Screen Is Not Recommended
Lack Of Computer Password Security Leads To Termination Under Delaware Merit Rules
In Patterson v. Department of Health and Social Services, Patterson (“Petitioner”) worked as an accounting specialist and was responsible for entering time and payroll records in the Payroll/ Human Resources Statewide Technology (“PHRST”) System. In relation to this claim, Petitioner testified that she entered her co-worker’s time without overtime and the same was checked by quality control. However, when Petitioner returned to the PHRST system, she noted that the co-worker was paid overtime without authorization and did report the same to quality control. On further review, it appeared that another co-worker, also received unauthorized overtime and that both payroll modifications allowing the same had been made through Petitioner’s required e-signature. These payments totaled over $13,000.00 in a two-year period. Petitioner herself, however, had received no unauthorized overtime or other financial gain during the same time period. Further, Petitioner asserted that she never provided her password to any other employee and that she had not entered the unauthorized overtime herself. Ultimately, Petitioner was informed that she was being terminated in accordance with Merit Rule 12.1, the State Code of Conduct and the State IT Policy.
In affirming the MERB’s Decision that Petitioner had violated State policies and in upholding her Termination, the Superior Court found that in the very least, Petitioner “failed to maintain the secrecy of her password, [such that] the Board reasonably could conclude that she violated the public trust and her actions reflected unfavorably on the state.” Further, such violations, given Petitioner’s role, directly affected State resources. The Court also found that Petitioner had failed to meet her burden of proof, stating that she had failed to provide any evidence for how her co-workers had obtained her password without her either providing it directly to them or “leaving it carelessly on her desk,” either of which was a violation of State policy. Accordingly, the Court found that Petitioner’s discharge was appropriate, noting that the Division of Management Services “has the responsibility of ensuring that its office is run without the appearance of embezzlement.”
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
Patterson v. Department of Health and Social Services, et al., C.A. No. N16A-07-004 AML (Del. Supr. Oct. 13, 2017).

February 15, 1879
Female Attorneys Permitted To Practice Before The United Sates Supreme Court
The United States Congress passed and President Rutherford B. Hayes signed into law on February 15, 1879, legislation permitting women to practice before the United States Supreme Court. After more than two years of lobbying for the legislation, Belva A. Lockwood became the first woman admitted to the Supreme Court bar on March 3, 1879, just over two weeks after the law was signed. Lockwood also has the distinction of being the first woman to present oral argument in the Supreme Court, which she did in Kaiser v. Stickney. Her struggle for admission to the Supreme Court’s bar was not the first time that Lockwood had fought for her rights. She received her law degree from National University Law School (now part of George Washington University), but, even though Lockwood completed all of the requisite coursework, she, as a woman, was not permitted to attend her class graduation or receive her diploma. To get her diploma, Lockwood petitioned directly to President Ulysses S. Grant, who also served as President of National University.  Lockwood subsequently received her diploma, the only one of the women in her class to do so. Interestingly, as of 1879, women were then able to practice before the United States Supreme Court, but waited 41 years before they were allowed to vote with passage of the 19th Amendment in 1920.