February 2021
WORKERS’ COMPENSATION LAW
Most Dangerous Phrase in Our Language: We’ve Always Done It That Way:
|
 |
|
Claimant was involved in a compensable work accident in 2001. She received total disability benefits until they were terminated in 2010. She received significant awards of lumbar and cervical spine permanent impairment. In 2020, Employer filed a Petition seeking to terminate ongoing narcotic medications and injections provided by Drs. Woo and Winas.
In accordance with the opinion of the defense medical expert, Dr. Townsend, the Board granted Employer’s Petition finding that claimant was required to wean over a 10-month period of time, and that injections were no longer reasonable, necessary, or causally related. The Board questioned claimant’s credibility as to whether her treatment was effective in improving her function, noting that despite extensive evidence that she was physically able to return to work for over 10 years, she never actually attempted to return to work in any capacity. The claimant was utilizing approximately 300 morphine milligram equivalents (“MME”) of narcotic medication per day, which was grossly in excess of limits of 90 MME set forth by the Centers for Disease Control. Supposedly effective injections never resulted in a reduction in narcotic medication levels. The Hearing Officer rejected arguments from the claimant as to the “stable” nature of the treatment course, commenting that “simply because Claimant has been on the same pain management regimen for an extended period does not guarantee that a continuation of such treatment remains reasonable, necessary, and causally related to the work accident.”
This Decision represents a continuation of a trend in Board decisions ordering weaning from narcotic medications, where not effective, even when the medications have been prescribed for many years.
Should you have any questions concerning this Decision or the compensability of chronic pain management treatment in general, please contact John Morgan or any other attorney in our Workers’ Compensation Department.
Deborah Cantoni v. Delaware Park, IAB Hrg. No. 1213719 (Jan. 12, 2021).
|
|
LITIGATION CASE LAW
COURT DECLINES TO EXTEND DELAWARE’S FIREFIGHTER’S RULE TO EMT’S SLIP AND FALL LITIGATION
|
 |
|
After being dispatched to render medical assistance, the Plaintiff, an Emergency Medical Technician (EMT), slipped and fell in a parking lot of an apartment complex. Among others, the Plaintiff filed suit against Defendant Property Owner alleging it was negligent in maintaining the parking lot in a safe condition for pedestrians.
The Defendant Property Owner moved for summary judgment asserting Delaware’s “Firefighter’s Rule” was applicable to the plaintiff’s claims and therefore it merely owed a duty to refrain from willful or wanton conducted rather than the ordinary duty of reasonable care.
Under Delaware law, the Firefighter’s Rule “bars firefighters from recovering from private parties for injuries sustained in the course of carrying out their professional duties.” Nevertheless, it is not a general rule that applies to all first responders and contains various exceptions and requirements to its applicability.
The Delaware Superior Court declined to extend the Firefighter’s Rule (and ultimately, the Defendant’s Motion for Summary Judgment) in the litigation. The Court noted the Plaintiff was not injured by the very harm she was dispatched to address – the injured person; instead, she was injured while searching the parking lot for the individual. Moreover, the Plaintiff did not assume the risk of slipping and falling as an EMT and was a guest, not a trespasser, on the premises.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Biggs v. Hall, et al., 2021 WL 387873 (Del. Super. Ct. Feb. 3, 2021).
|
|
EMPLOYMENT LAW
Plaintiff Fails to Prove Adverse Employment Action in Discrimination Claims, but Retaliation Claim Survives
|
 |
|
Plaintiff began working for Defendant’s public cable television station in July 2013. In September 2017, plaintiff alleged that a City Councilman inappropriately touched the plaintiff at a city approved social event. The Councilman also whispered to plaintiff that “she was a beautiful Black woman.” Plaintiff reported the event to another employee and left the event. Plaintiff later reported the incident to Defendant’s City Council President and then went out on FMLA leave as she felt the work environment was racially and sexually hostile and offensive. Plaintiff continued to extend her leave while the matter was being investigated. An independent Human Resources agency investigated the matter and concluded that the Councilman had a pattern of questionable behavior concerning professional settings and he appeared to not understand social cues.
When Plaintiff returned from FMLA leave, she overhead the Station Manager tell other employees not to speak to the Plaintiff because she was a “troublemaker” and Plaintiff’s workstation was moved to an isolated area, away from her co-workers. About a year after the incident with the Councilman, the Plaintiff was suspended for accidently uploading religious material to the Defendant’s Twitter account.
Plaintiff filed a Charge of Discrimination alleging race and sex discrimination and retaliation for reporting the Councilman’s behavior and filing a charge of discrimination.
Defendant filed a motion to dismiss plaintiff’s race and sex discrimination claims. In order to prove discrimination, a plaintiff must establish that she is a member of a protected class, she was qualified for the position, she suffered an adverse employment action and similarly situation persons who were not members of her protected class were treated more favorably. The Court granted Defendant’s motion because Plaintiff could not allege facts to support a claim that she suffered an adverse employment action as the suspension was a year after the Plaintiff reported the incident with the Councilman.
Defendant also argued that Plaintiff failed to state claim for retaliation, as she had not alleged facts to support an adverse employment action. To establish a prima facie case of retaliation, a plaintiff must demonstrate that: “(1) he or she engaged in a protected employee activity; (2) the employer took an adverse employment action after or contemporaneous with the protected activity;” and (3) a causal connection exists between the protected activity and the employer’s action. The Court concluded that the Plaintiff engaged in a protected activity when she reported the incident with the Councilman and when she filed a charge of discrimination. The Court further found that the Plaintiff suffered an adverse employment action when she returned from leave and when she was suspended and there was a causal connection between the protected activity and the retaliatory actions.
Therefore, Defendant’s motion was granted as to the race and sex discrimination claims but denied as to the retaliation claim.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
LORENER WOOTEN, v. CITY OF WILMINGTON., 2021 WL 411707 (D.Del., 2021)
|
