January 2017

Special Animals In The Law Edition

The Case Of The Horse Who Did it, Or
Don’t Blame The Horse for Your Bad Back!



In Hodge v. Delaware Park, the Industrial Accident Board found that a claimant with a significant underlying low back condition, for which he was actively treating at the time of the work accident, did not meet his burden to show that the work accident injured his lower back or otherwise exacerbated, accelerated, or aggravated his preexisting condition.


In this case, the claimant was injured when riding in a horse ambulance while transporting a horse.  The driver stopped the van abruptly, causing the horse to lose its balance, hitting the claimant and pushing him forward into rails.  The claimant did not fall, as his knee landed in a water bucket instead.  The horse too did not fall, but ended up with its legs on either side of the claimant, before righting itself.  The claimant alleged that he hurt his neck and low back.  A neck injury was accepted as compensable, but the low back injury was not accepted.  The claimant filed a Petition with regard to the low back injury, including a proposed fusion surgery, alleging that the work accident exacerbated his preexisting condition.


The Board found that the claimant had an underlying low back condition, was actively treating since 2006, and had fusion surgery in 2008, with documented disc disease adjacent to the fusion location in 2014, at the location at which the fusion surgery at issue was to be performed.  Months prior to the work accident, the claimant was reevaluated by his surgeon, who noted significant lower back symptoms, and the records showed that the claimant noted that his back condition caused him difficulty in performing work and everyday activities.


Further, the Board found that the timing of the claimant’s report of low back pain was problematic.  In reporting his injury to medical providers for the first few months after the accident, the claimant never mentioned low back problems, and his doctor had an inaccurate history of the work accident, believing that the horse actually fell on the claimant’s back, when the horse only pushed the claimant forward.  Finally, in the defense medical examinations, the claimant was found to have changed his story with regard to his injuries.  At his first examination, the claimant mentioned only neck and upper back injuries, while, at a second examination, the claimant reported lower back injuries which were then being treated.  Because of the credibility issues and the significant preexisting lower back problems supported by the record, the Board found that the claimant failed to meet his burden to show that a lumbar spine injury occurred due to the work accident, and with regard to this low back injury, the horse was not at fault.


Hodge v. Delaware Park, IAB Hearing No. 1418894 (June 9, 2016).
If you have any questions regarding this case, please contact Maria Paris Newill, Head of our Workers’ Compensation Department and Co-Managing Partner of the Firm, who successfully defended this claim, or any attorney in our Workers’ Compensation Department.

On This Day in Legal “Animal” History January 13, 1930
Mickey Mouse First Comic Strip Appearance
Mickey Mouse first appeared in a national newspaper comic strip on this day January 13, 1930. Walt Disney, having lost the rights to his previous artwork creations while working for other studios, took to heart the lesson of owning the rights to one’s work. Accordingly, Mickey Mouse and all associated characters became copyrighted and trademarked, and the Disney corporation lobbied intensively to extend the American and European Copyright Term Extension Act, to prevent the earliest Disney cartoons from falling into the public domain, ensuring Disney perpetual control over the characters’ use.

In Delaware The Dog Can Bite The Hand That Teases
Succinctly stated, Delaware dog owners are liable for injury or death caused by their dog unless the person was trespassing on the owners’ property, attempting to commit a criminal offense against any person, or was teasing, tormenting, or abusing the dog. The injured person bears the burden of proof that they do not fall into an exception.
The applicability of liability coverages in dog bite cases is reviewed in Am. Int’l S. Ins. Co. v. Morrow. In that case, the plaintiff, Adam Kubala, was sitting in a parked car with two friends and their dog named Xavier. At some point, Xavier bit Mr. Kubala (likely justifiably) who, as a result, sustained injuries and initiated litigation against various parties, including the dog owner’s homeowners and auto insurance carriers.
A dispute arose between the carries as to which insurer would cover the loss. Specifically, whether the injury arose “out of the ownership, maintenance, or use of the automobile.” To decide the question, the court applied the three prong Klug test:
(1)   the vehicle was an “active accessory” in causing the injury – something less that proximate cause and more than being the mere situs of the injury;
(2)   there was no act of independent significance that broke the causal link between the vehicle and the injury; and
(3)   the vehicle was used for transportation purposes. (Note: this prong was rejected by the Delaware Supreme Court in the PIP context in Kelty, however, it would likely not change the outcome due to the continued application of the first and second prong.)
The court concluded the vehicle was nothing more than the site of the Xavier dog bite injury as it did not instigate or have any other causal connection to the injury. The auto carrier was granted summary judgment.
For more information on dog bite defense litigation or other legal questions, feel free to contact Michael W. Mitchell or any attorney in our Liability Department.
Am. Int’l South Ins. Co. v. Morrow, 2008 Del. Super. LEXIS 486 (Del. May 2, 2008).

Earning The Bones: Finding Fido’s Place At Work

79.7 million Households in the United States have at least one pet, with at total estimated number of domestic cats and dogs totaling 163.6 million. As each household’s furry-friends are becoming more like family, there has been a growing push to also allow Fido and Kitty in the workplace and more employers are beginning to offer pet-friendly office space. According to the 2015 Society for Human Resource Management Survey, 8 percent of American workplaces allowed for employees to bring their pets to work, up from 5 percent in 2013. With more workplaces becoming pet-friendly, many employers have begun to weigh the pros and cons of allowing pets in their offices as well. The following are largely regarded as the top considerations when it comes to allowing animals of all kinds in the workplace:
  • Compliance with the Law: Title I of the Americans with Disabilities Act (“ADA”), which is applicable in employment situations, requires that reasonable accommodations be made for those with a disability.Under the ADA, allowances for a service animal may have to be made in an otherwise animal-free office space, but the right is not automatic. In each situation, “an interactive process should be undertaken with the employee to determine which accommodations, if any, would be appropriate and not cause undue hardship.” Among considerations for the employer, both for ADA service animals and pet-friendly workplaces, should also be that of other employees, who may be allergic or have a phobia of the animal in question. If made aware of such effects, the employer may also be requires to make accommodations for those employees as well. If able, any requests should be discussed with legal counsel to ensure proper compliance with ADA requirements.
  • Effects on Environment and Collaboration: Many employers have cited an increase in morale and the collaborative nature of their employees following the creation of a pet-friendly environment. Rather than having to spend time and energy creating team-building experiences, employees instead tend to find a common bond over their love of animals and this bond has been cited as leading to a better team atmosphere. A Central Michigan University 2010 study found that groups who had a dog present through collaborative exercises received higher measures in the areas of trust and team cohesion than those who did not. However, these effects may change if there are employees who do not like or are afraid of any animals or if there is already a hostile work environment. While Fido may help to improve these situations, the addition of animals could alternatively make matters worse.
  • Effects on Stress and Productivity:
    Pet Friendly Companies have found that employees have improved work-life balance and lower stress levels. A 2012 Journal of Workplace Health Management Study showed decreased stress levels for people who brought their dogs to work versus an increase in stress throughout the day for those who did not. Additionally, many companies have noted an increase in productivity, noting that employees are less worried about their pet being alone for long hours at home and are able to better focus on what is occurring at the office. Adversely, companies should also consider that employees with pets in the office will need breaks to take their pets to the bathroom and other necessities that come with pet ownership.
  • Respecting the Policy:
    As with any large change to the office environment, companies that choose to convert to a pet friendly workplace should adopt a policy concerning what is expected from those who choose to bring pets to the office. People should be conscious as to their pet’s tendencies and note whether they would be an acceptable fit for an office environment. Additionally, companies should also consider the legal liability, not only in term of statutes such as the ADA, but also in terms of personal injury or property damage that may occur as a result of the employees’ pets. Should a policy be implemented, employers may choose to have an Acknowledgement signed by each employee wishing to take advantage of the pet-friend environment, noting the respect and understanding needed in making such a program a successful one. After all, who says Fido also can’t be man’s best colleague too?
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.

This Day In Legal History: January 13th, 1794
15 Stars and 15 Stripes U.S Flag Proclaimed
The Flag Act of January 13, 1794, of the United Sates Congress authorized the addition of 2 stars to the U.S. flag, representing Vermont (the 14th State on March 4th, 1791) and Kentucky (the 15th State on June 1st, 1792), bringing the total number of stars to 15. The Flag Act also added 2 stripes for a total of 15 stripes, making this the only U.S. flag to have 15 stripes. In 1818, Congress proclaimed that one star for each new state would be added on the 4th of July following the state’s admission to the union and that there would always be thirteen stripes representing the thirteen original colonies. This flag became the official U.S flag on May 1st, 1795, and It was this 15 star and 15 stripe U.S. flag that flew over Fort McHenry during the War of 1812 and inspired the writing of the National Anthem, The Star Spangled Banner.

Welcome To The Bar
Heckler & Frabizzio is proud to welcome both Christopher J. Isaac & Rebecca L. Wilcox to the Delaware Bar. We are pleased they have begun their preeminent career with us and look forward to working with them in the years to come. Congratulations Chris & Rebecca!
WC Breakfast Seminar
Maria Paris Newill will be a featured panel speaker at this year’s Delaware State Bar Association Workers’ Compensation Breakfast Seminar on Wednesday, January 18, 2017 8:30 A.M. to 12:00 P.M. at the Chase Center on the Riverfront, Wilmington, Delaware. Please join our Workers Compensation attorneys to hear Maria speak on the subject of Workers’ Compensation Appeals. For registration information please contact the Delaware Bar Association at 302-658-5212 or through the Bar website www.dsba.org, or contact any attorney in our Workers’ Compensation Department for more details. See you at the seminar!
SPCA Charity Donation
Heckler & Frabizzio staff members have donated to the SPCA over the Holiday Season. We are proud to give back to our community and encourage you to follow our lead.