January 2019

Workers’ Compensation Open Seminar 
Serving our clients is our #1 goal. We know many adjusters are looking to obtain their remaining credits by February 28, 2019. We will be hosting a virtual 3 credit Workers’ Compensation Seminar on February 6th from 9am – 12pm presented by Partner William Rimmer. If you would like to attend please email Firm Administrator, Page Hyson at physon@hfddel.com

Board Rejects Claimant Expert “I Know it All” Theory of Causation – – Surgery Denied:
Claimant sustained acknowledged strain/sprain injuries in a compensable work accident on October 11, 2017. Several months later, Claimant filed a Petition seeking payment of a February 20, 2018 neck surgery performed by Dr. Rudin. Dr. Rudin conceded in his testimony that Claimant had prior neck problems. He reviewed the MRIs before and following the accident side by side and noted worsening disease at the surgical level post-accident. He testified the acute accident caused this change. He attempted to minimize Claimant’s pre-existing treatment with pain management, noting that Claimant’s medical records before the accident seemed to focus more on the back than neck, and documented very minimal use of narcotic medications. According to Dr. Rudin, Claimant was only taking the medications 2-3 times per week before the accident, and his dosages increased after the accident. Dr. Rudin also argued that his opinion should be given more weight than the defense medical expert, Dr. Gelman, because Dr. Rudin wrote the Delaware Guidelines for treating workers’ compensation claimants. Dr. Rudin also argued that Dr. Gelman had not performed spine surgery in 25 years, whereas he performed same regularly during that 25-year time frame.
The Board rejected these arguments and denied the surgery, accepting the opinion of Dr. Gelman as more credible. Dr. Gelman also reviewed the pre and post-accident MRI imaging side by side. There was some progression of Claimant’s degenerative disease over the 4-year interval between the studies, but this change was consistent with the natural degenerative process. The post-accident MRI did not show any acute findings such as edema that might support an acute disc injury. Dr. Rudin had not pointed out any acute issues on the imaging in his testimony. The Board accepted Dr. Gelman’s testimony concerning the significance of Claimant’s pre-existing problems. There was a positive EMG at the surgical level. Claimant was in active treatment with Dr. Cary in the months before the work accident. He was taking narcotic medications 2-3 times per day immediately prior to the work accident, not 2-3 times per week as stated by Dr. Rudin. Nearly all of Dr. Cary’s pre-accident monthly notes recorded a diagnosis of chronic pain in the neck with significant subjective pain scores in the range of 7-9/10. Although Dr. Cary’s initial post-accident records showed an exacerbation of objective findings concomitant with the work accident, within 2-3 months, the findings and medications were back to pre-injury levels. The Board also rejected Dr. Rudin’s arguments with respect to writing the Guidelines and his operative experience versus that of Dr. Gelman. The Board explained that the Guidelines were “irrelevant” to issues of causation, Dr. Gelman regularly treats patients with neck and back conditions, and most importantly to the outcome/decision, Dr. Gelman was simply much more knowledgeable with respect to Claimant’s medical file than Dr. Rudin.
Should you have any questions regarding this Decision, please contact Norm Brooks, or any other Attorney in our Workers’ Compensation Department.
Herman Fields v. Zacros America, Inc., IAB Hrg. No. 1468943 (Sept. 13, 2018).


 Plaintiff’s No Show Gives Complaint The
On August 17, 2016, Plaintiff slipped and fell on debris on the floor inside of a store, and sustained injuries. After Plaintiff filed a lawsuit against Defendant, Defendant propounded discovery upon the Plaintiff, filed a Notice of Deposition, and scheduled a Defense Medical Exam for Plaintiff. Plaintiff failed to appear for both the deposition and medical exam. Defendant rescheduled both the deposition and the defense exam, and Plaintiff failed to appear again.
Defendant filed a Motion to Compel the deposition of Plaintiff. Accordingly, the Court entered an Order directing Plaintiff to appear for the scheduled deposition. However, Plaintiff failed to appear.
Defendant moved to dismiss the action pursuant to Superior Court Rule 41(b) for Plaintiff’s failure to prosecute the action and failure to comply with an order of the Court. The Court found dismissal was appropriate in this case because the Plaintiff had not participated in the action since filing his complaint. In addition, because the Plaintiff had been completely absent in the action, the Court found that a lesser sanction would not cure Plaintiff’s conduct.
Therefore, Defendant’s Motion was granted and Plaintiff’s case was dismissed.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Ricky Plantz v. Wal-Mart Stores East LP, 2019 Del. Super. LEXIS 5 (Del. Super. Ct. January 4, 2019).

Discrimination Dismissed:
Employer’s Summary Judgement Motion Granted
Following Plaintiff’s Failure to Properly Plead Claims
The Civil Rights Act of 1964 includes Title VII which “prohibits employment discrimination based on race, color, religion, sex and national origin.” A complaint alleging a violation of Title VII must include both the basis of discrimination (i.e. race, color, etc.), as well as the actions of the employer during the time of the alleged discrimination. If there is no direct evidence of the alleged discrimination, an employee must show that “(1) she is a member of a protected class; (2) she was qualified for the position; (3) she suffered adverse employment action; and (4) the action occurred under circumstances that could give rise to an inference of intentional discrimination.” Further, and in order for a Title VII claim to be ripe for a court’s consideration, a Plaintiff must first exhaust all administrative remedies, either with the U.S. Equal Employment Opportunity Commission (“EEOC”) or the equivalent state or local agency.
In Daniels v. Delaware Psychiatric Center, Tomeka Daniels (“Plaintiff”) alleges that following a work-related injury, her employer, Delaware Psychiatric Center (“Defendant”) discriminated against her on the basis of race, and actions by Defendant included harassment, reassignment and discipline. In support of this contention, Plaintiff notes that on several occasions from October 2013 to December 2013 and one incident in December 2014, her supervisor harassed, ridiculed, and treated Plaintiff in a hostile and intimidating manner, to include phone calls while at home and reassignment to the mail room, which she offers was an unsafe and unhealthy work environment. Following Plaintiff’s filing of the claim with the District Court, Defendant asserts that for December 2014 allegation, Plaintiff failed to exhaust all administrative remedies as required, and in regard to the 2013 incidents, she failed to present any evidence of intentional discrimination. For these reasons, Defendant filed a Motion for Summary Judgement.
In granting Defendant’s Motion, the Court found Plaintiff had in fact failed to use any administrative remedy in regard to the December 2014 action, noting that her claim with the EEOC was filed on January 6, 2014, 11 months prior to the alleged incident. In regard to the 2013 claims, the Court states that while Plaintiff is able to show the first three elements of a discrimination claim, she has failed to present any evidence that the decision to move her to the mail room was discriminatory in nature, noting that the grievance filed after the alleged harassing phone calls around the time of her transfer made no reference to racial discrimination/ harassment on the basis of race. For these reasons, the Court found that Plaintiff had failed to provide evidence needed to support the race discrimination claim and dismissed her claim.
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
Daniels v. (DHSS) Delaware Psychiatric Center, Civ. No. 15-237-LPS (D. Del. Sept. 18, 2018).

January 17, 1706
Benjamin Franklin is Born
On January 17, 1706, Benjamin Franklin was born in Boston, Massachusetts. Considered the Elder Statement of the American Revolution, he displayed multiple talents as a printer, author, publisher, philosopher, scientist, diplomat and philanthropist. As a scientist, he was a major figure in the American Enlightenment and known for his discoveries and theories regarding electricity. As an inventor, he is known for the lightening rod, bifocals, and the Franklin Stove. He founded many civic organizations, including the Library Company, Philadelphia’s first fire department and the University of Pennsylvania. Franklin was foundational in defining the American ethos as a marriage of the practical values of thrift, hard work, education, community spirit, self-governing institutions, and opposition to authoritarianism both political and religious, with the scientific and tolerant values of the Enlightenment. Franklin became a successful newspaper editor and printer in Philadelphia, the leading city in the colonies, publishing the Pennsylvania Gazette at the age of 23. He became wealthy publishing this and Poor Richard’s Almanack, which he authored under the pseudonym “Richard Saunders”. After 1767, he was associated with the Pennsylvania Chronical, a newspaper that was known for its revolutionary sentiments and criticisms of British policies. Franklin became a national hero in America when he spearheaded an effort in London to have the Parliament of Great Britain repeal the unpopular Stamp Act. An accomplished diplomat, he was widely admired among the French as American minister to Paris and was a major figure in the development of positive Franco-American relations as the first U.S. Ambassador to France. His efforts proved vital for the American Revolution in securing shipments of crucial munitions from France. During the revolution, he became the first U.S. Post Master General which enabled him to set up the first national communications network. He was active in community affairs and colonial and state politics, as well as national and international affairs. From 1785 to 1788, he served as Governor of Pennsylvania and he signed both the Declaration of Independence and the U.S. Constitution. Franklin’s colorful life and legacy of scientific and political achievement herald his status as one of America’s most influential and consequential Founding Fathers.
Happy Birthday Ben!