ANNOUNCEMENTS

MLK Day of Service

For the third year in a row, several Heckler & Frabizzio employees volunteered at the Friendship House in Wilmington, DE to commemorate the Martin Luther King, Jr. Day of Service. Volunteers helped sort donated clothing for local families in need. A huge thank you to all who participated for taking time out of your day to give back to the community!

Adjuster Education Credits

Heckler & Frabizzio Partners, Miranda Clifton, and Amy Taylor are hosting a virtual Ethics seminar on January 17th, from 1pm-4pm. This course is approved for three hour Delaware ethics credits.

Additionally, Heckler & Frabizzio Partners, Gregory Skolnik, and Nicholas Bittner are hosting a virtual Workers’ Compensation seminar on February 15th, from 1pm-4pm. This course is approved for three-hour Delaware general credits.

Heckler & Frabizzio is looking forward to continuing to offer free continuing education. If you’d like to join us, please email Natalie Bogia, with your National Producer Number (NPN) and Delaware License Number. We hope to see you there!

Keeping Up with H&F

Welcome to

Teryn Shipman, Law Clerk, welcomes her new best friend Sojourner “Sojo” Truth! Sojo is a toy mini poodle and is named after women’s activist and abolitionist, Sojourner Truth. She loves to run, cuddle, and her absolute favorite is napping in Teryn’s lap.

Claimant was involved in a work-related 9/24/20 motor vehicle accident resulting in injuries to his ribs, bilateral wrists, pelvis and right foot. Claimant had previously undergone two unrelated lumbar spine surgeries involving fusions, first at L4-5 and most recently at L3-4. After this work accident, the claimant underwent two lumbar spinal fusions, performed in February 2021 and May 2021, culminating in a combined lumbar fusion from T10-L5. The claimant filed a Petition to Determine Additional Compensation Due seeking acknowledgement of a low back injury, including payment of the surgeries, and recurrence of total disability. A Board Hearing was held on 12/8/23 at which time the Board appropriately denied claimant’s Petition, ruling the low back injury was not causally related to the work accident and claimant did not sustain a work-related recurrence of total disability.

The Board opined it found “most interesting” the “timeline and chronology of events and emergence of low back issues … in the context of [Claimant’s] preexisting condition.” The crucial facts included the claimant’s prior back injury, the claimant’s prior low back surgeries in 2013, and 6 months before the accident in 2020, as well as pre-accident CT scan images. The claimant’s lumbar spine was fused, with a “cage” inserted into his spinal column in 2013 and again in early 2020. CT scans from before the work accident revealed the surgical cage had migrated beyond the interior cortex of his spine before the work accident even occurred.

Claimant argued that his surgical hardware had failed because of the work accident, which created the need for the final two lumbar spine surgeries. Drs. Piccioni and Rushton testified for the Employer, stating that immediately after the car accident, the claimant identified no low back complaints during his nine-day stay in the hospital. The doctors agreed that if this car accident caused the hardware to fail, then the claimant would have felt similar or even more pain compared to his other factures. The doctors agreed the pre-accident CT scans showed the cage migrating already, and the “wheels were already in motion” for the claimant to need additional back surgery. Post-accident X-Rays were also compared to the pre-accident films, which clearly showed the surgical cage, implanted months prior to his work accident, had migrated but was stable after the trauma of the car accident. Finally, claimant’s surgical hardware failed again, this time between the third and fourth surgeries. If it could fail then with no trauma, then it could have failed previously even without the work accident, contrary to the opinions of claimant’s experts.

The Board agreed that there is no evidence that the work-related trauma accelerated or impacted the claimant’s pre-existing low back condition. The Board issued a Decision finding the low back injury was not causally related to this work accident but was an ongoing issue the claimant had had for many years pre-dating the accident. Finally, because claimant’s doctors linked disability to the low back, the Board found claimant did not sustain a work-related recurrence, and thus the Petition was denied outright.

Should you have any questions regarding this Decision, please contact Nicholas Bittner or any other attorney in our Workers’ Compensation Department.

Young v. IG Burton & Company, Inc., IAB Hrg. No. 1510414 (Dec. 20, 2023)

EMPLOYMENT LAW UPDATE

Superior Court Affirms Board’s Role In Determining Witness Credibility

Claimant was employed as an investigator by the Delaware Department of Labor and was terminated on September 9, 2022 for violating Employer’s code of conduct not limited to behaving “‘in an unprofessional and combative manner.’”

Claimant filed for unemployment benefits, and on September 23, 2022, the Division of Unemployment Insurance’s Claim Deputy found that Employer terminated Claimant for just cause.

Claimant appealed the determination, and an appeals hearing was held on October 17, 2022. The Appeals Referee determined that Claimant was given multiple warnings due to “improper and unacceptable behavior’” and that Employer’s termination of Claimant was for just cause.

Claimant appealed the Referee’s decision to the Unemployment Insurance Appeal Board, and the Board remanded the case back to the appeal’s referee for the purposes of Claimant taking additional testimony from Employer’s witness.

An appeals hearing was held upon remand on February 14, 2023, and Claimant argued that Employer’s categorization of Claimant’s behavior as disrespectful was subjective and undefined. Claimant argued further that she was being bullied out of her position. Employer argued that Claimant underwent coaching sessions and did not improve her conduct.

On March 13, 2023, the hearing officer affirmed the Claim Deputy’s decision and Claimant remained disqualified from receipt of unemployment insurance benefits.

Claimant appealed to the Board again, and on April 12, 2023 a Board hearing was held.

On June 9, 2023, the Board issued a decision affirming the Referee’s decision arguing that the Board has the authority to evaluate witness credibility and that the record supports Employer’s position that Claimant was advised to discontinue unprofessional conduct and she did not do so.

The Board did not find Claimant’s testimony denying unprofessional behavior credible because the record reflected such behavior. The Board also rejected Claimant’s argument blaming others for her own documented unprofessional behaviors.

Claimant appealed her case into the Delaware Superior Court, which affirmed the Board’s decision because the Board “had substantial evidence to support its findings, did not act arbitrarily or capriciously, did not exceed the bounds of reason in view of the circumstances, and did not ignore recognized rules of law or practice so as to produce injustice.”

Should you have any questions regarding this decision, especially how warnings operate in just cause terminations, or any employment law concerns, please contact any attorney in our liability department.

Doneisha Flowers v. Delaware Department of Labor and Unemployment Insurance Appeal Board, C.A. No.: N23A-06-006 MMJ (Del. Super. Ct. December 14, 2023).

LITIGATION LAW UPDATE

Understanding Delaware’s Statute of Repose – What Constitutes an “Improvement” to Real Property

The Superior Court denies plaintiffs’ motion to compel, finding in part that the accidental partial production of records due to a clerical error does not constitute waiver of attorney-client privilege.

A Delaware mental health therapist was murdered at home by one of her patients, Christopher Frick. Following the crime, Christopher returned to his parents’ home, and his parents promptly called the police, leading to Christopher’s arrest and subsequent incarceration. The therapist’s Estate then sued Christopher and his parents for wrongful death, and defendants sought coverage under their homeowners’ insurance policy with State Farm.

State Farm agreed to provide the parents with a defense under a reservation of rights, but denied coverage as to Christopher. The parties stipulated to dismissal of all claims against the parents, but the Court subsequently entered a summary judgment (which was not contested) on behalf of plaintiffs against Christopher in an amount exceeding 15million. Christopher assigned his rights under the policy to plaintiffs, who filed suit against State Farm alleging it had wrongfully denied Christopher coverage under the policy.

As part of that litigation, the Estate sought production of the carrier’s “Claim File.” As it turns out, the “Claim File” had been separated into two separate files, one for Christopher and one for his parents. State Farm voluntarily produced Christopher’s file during discovery, but maintained that the parents’ file was not relevant. Plaintiffs relied on Tackett v. State Farm Fire and Cas. Ins. Co. to argue that “the disclosure of even part of the contents of a privileged communication surrenders the privilege as to those communications.” Plaintiffs argue that, because the parents’ file and Christopher’s file were, at times, comingled, that production of one entitled them to complete production of both. The Court disagreed and ruled that the two files were separate, and the accidental misfiling of some of the parent documents into Christopher’s file, and thus accidental partial production of those misfiled documents, does not constitute waiver of privilege as to the remaining parent file documents. The motion to compel was denied.

Cynthia Boatright, et al v. State Farm Insurance Company, C.A. No. N20C-11-022 CEB (Del. Super. Nov. 28, 2023)