February 2023

Keeping Up with H&F

Caps Off!

We are thrilled to celebrate with Heather McKee, Paralegal to Partner John Ellis, on her recent graduation from Delaware Law School! Please join us in wishing Heather many years of success as she begins this new chapter of her career.


Board Orders Treating Doctor to “Follow Directions” – Termination Petition Granted

Claimant sustained a 3/18/21 head injury, and was placed on an open total disability Agreement. On 5/23/22, Employer filed a Petition to Review seeking discontinuation of total disability benefits, based upon Dr. John Townsend’s defense medical examination release. Claimant contested the Petition, relying on Dr. Schaller’s opinion.

The Board found Dr. Townsend’s opinion most convincing that Claimant sustained a mild concussion in the incident and is capable of part time work up to a light duty capacity. Dr. Townsend testified that he would not expect a slip and fall injury to produce a severe concussion, as Dr. Schaller maintained. Dr. Townsend is a neurologist and performed various tests during two examinations that did show some residual issues, although not as debilitating as Dr. Schaller suggests. Dr. Townsend pointed out that Dr. Schaller bases his view that Claimant sustained a severe concussion on ImPACT testing, but the results were viewed improperly as there was no baseline testing performed as required. The ImPACT test is a 20 minute computer based test and Dr. Townsend pointed out that most people have some degree of photophobia when using a computer. While typically, an EEG (qualitative) test can tell if there is a structural abnormality present, it does not tell what the specific abnormality is and diagnostic imaging generally has to be done to parse that out. Dr. Schaller testified that this test indicates claimant has a permanent structural injury, despite the fact that uncovering or establishing permanent structural injury is not mentioned in the literature or website for the EEG test. The Board questioned why Dr. Schaller has not referred Claimant to a neurologist or for the relevant diagnostic imaging and did not find his testimony convincing that there would be limited or no value in doing so.

Should you have any questions concerning this Decision, please contact John Ellis or any other attorney in our Workers’ Compensation Department.

Manna v. State, IAB Hrg. No. 1509589 (Jan. 26, 2023)


When a Negligent Act Results in Death by Suicide: A Legal Analysis of Proximate Causation Standards

The Superior Court clarified the applicable proximate cause standard when a negligence-based case allegedly results in death by suicide. In doing so, the Superior Court addressed standards adopted by various other jurisdictions, as well as a limited line of Delaware caselaw. The Court recognized three competing approaches with respect to liability for injury-based suicide: (1) an outright denial to recovery under the theory that suicide is always an intervening act; (2) an approach based on Restatement (Second) of Torts § 455, which permits recovery when “negligently inflicted injury leads to delirium or insanity, which in turn leads to suicide,” or (3) permitting recovery if suicide is “a reasonably foreseeable consequence of the negligently inflicted injury, regardless of the sanity or insanity of the tort victim.” See Porter v. Murphy, 792 A.2d 1009, 1014 (Del. Super. 2001).

The Court in Porter adopted the second approach, but with modification to what was deemed “archaic” language and instructed the jury: “If the negligence of the Defendants cause[s] mental illness which results in an uncontrollable impulse to commit suicide[,] then []the Defendants may be held liable for the death. On the other hand, if the negligence of the Defendants only causes a mental condition in which the injured person is able to realize the nature of the act of suicide, and has the power to control it if he so desires, the act then becomes an independent intervening force and the Defendants cannot be held liable for the death.” Id. at 1011, 1015.

The Court in Healy was asked to instead apply what was arguably a lower standard of causation found in Delaware Tire Center v. Fox, a case on appeal from the Industrial Accident Board following a work related accident. 411 A.2d 606 (Del. 1980). The Delaware Supreme Court in Delaware Tire reasoned instead that “[d]eath by suicide would be compensable if it is caused by severe pain and despair which proximately results from a compensable accident, and is of such a degree so as to override normal and rational judgment.” Id. at 607.

The Court here disagreed that the standards were different, and notes instead that the Porter Court had already considered Delaware Tire and concluded that “pain and despair that overrides normal and rational judgment” was “substantially the same as the ‘uncontrollable impulse’ instruction.” Porter, 792 A.2d at 1015-16. Regardless, the Court in Healy reasoned that even if Delaware Tire set forth a lower burden than Porter, such distinction may be appropriate because the workers’ compensation statute is intended to be remedial and not based in negligence; whereas the Porter standard, if different, is more appropriate in a negligence case.

The Court concluded that Plaintiff’s expert here had provided an opinion sufficient to meet the “uncontrollable impulse” standard and thus denied Defendant’s motion for summary judgment.

James Healy, Jr. v. Fresenius Medical Care Northern Delaware, LLC, et al., C.A. No. N20C-04-227 AML (Del. Super. January 31, 2023)

**Heckler & Frabizzio and the Delaware Bar take suicide and suicide prevention seriously. If you or anyone you know is in distress, at risk for, or contemplating suicide, please call the Suicide & Crisis Lifeline at  9-8-8.


Plaintiff’s “Reduction of Hours”

Claim Fails

Plaintiff worked part-time for Defendant since August 2017. In 2021, the Plaintiff’s hours were reduced. She subsequently filed for unemployment benefits. The Claims Deputy denied the Plaintiff’s claim because she was not “unemployed” and was not guaranteed a minimum set of hours. The Plaintiff appealed to the Appeals Referee and a hearing was held. During the hearing, the Plaintiff testified that since October 2021, the Defendant decreased her hours from 30-40 hours per week to 3.5-10 hours per week. Plaintiff further testified that when she was hired, she was verbally guaranteed to be scheduled 40 hours per week. The Defendant testified that the Plaintiff was working a reduced number of hours because the Plaintiff was not available to work evening shifts, and there were a limited number of day shifts available.

The Appeals Referee denied the Plaintiff’s claim, finding that the Plaintiff was hired as a part-time server on an as needed basis with no guaranteed hours. The Referee concluded that the reduction in hours is not the fault of the Defendant, it is due to the Plaintiff’s limited availability to work evenings. The Plaintiff appealed to the Unemployment Board, who upheld the Referee’s decision that the Plaintiff did not meet the definition of “unemployed.” The Plaintiff appealed her case to the Superior Court, who reviews the Board’s findings for substantial evidence.  Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

In her appeal, the Plaintiff did not submit any evidence that she ever worked full time hours. She included her pay stubs as evidence, but the pay stubs revealed that the Plaintiff never worked a specific number of hours. Therefore, the Court concluded that there was not sufficient evidence to show the Plaintiff was guaranteed a minimum number of hours. The Court affirmed the Board’s decision.

Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.

Brittingham v. Delmar Pizza & Pasta Restaurant, Inc., 2023 WL 106928  (Del.Super., 2023)