January Newsletter 2022

Lights…Camera…Termination: Surveillance Footage Wins Best Picture
Claimant was involved in a compensable work accident in 2016, when he was operating a construction vehicle that crashed and turned over, resulting in injuries to his head, face, neck, and back. Claimant was paid a substantial period of total disability benefits. On March 30, 2021, the Employer filed a Termination Petition seeking to terminate total disability.
Employer’s medical expert Dr. Gelman testified that at his defense medical examination, Claimant presented with a rolling walker and singled prong cane, moved slowly, dragged his left foot, and had trouble straightening his left leg. Surveillance footage, on the other hand, showed claimant walking without any limp, climbing into and out of a pickup truck, walking briskly, and not using any assistive devices. Based on this evidence and his examination, Dr. Gelman felt claimant could work in some capacity. Claimant’s medical expert, Dr. James Zaslavsky, testified that claimant could not work, surveillance notwithstanding, as it was his understanding that claimant did not take his medication on dates he was to be examined, which could have explained his worse presentation.
Claimant interestingly “doubled down” and testified at trial that he did not walk without a cane or walker, despite what was clearly shown on the surveillance.
The Board issued a Decision indicating that they agreed with Dr. Gelman and the Employer, and granted the Termination Petition.
Should you have any questions regarding this Decision, please contact John W. Morgan, or any other attorney in our Workers’ Compensation Department.
Joseph Frederick v. A-Del Construction Co., Inc. and/or Colonial Trucking, Inc., IAB Hrg. No. 1440955 (Dec. 2, 2021).
Plaintiff Given Second Chance After Court Finds Commissioner Failed to Consider Evidence
Plaintiff filed for Supplemental Security Income benefits alleging that he suffered from severe migraines. The Commissioner of the Social Security Administration denied the Plaintiff’s claim, and the Plaintiff filed an appeal. Both parties filed summary judgment motions.
The Court reviews the Commissioner’s factual findings for substantial evidence, which means “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” To determine if a claimant is disabled, the Commissioner looks at five steps. First, the Commissioner must determine whether the claimant currently is engaging in substantial gainful activity. If the claimant is, then the claim will be denied. Second, the Commissioner must determine whether the claimant has a medically severe impairment or combination of impairments. If the claimant does not, then the claim will be denied. Third, the Commissioner compares the medical evidence of the claimant’s impairment to a list of impairments presumed severe enough to preclude any gainful work. If the impairment is equivalent, the claim is granted without further analysis. If the claimant does not suffer from an impairment on the list or its equivalent, the analysis proceeds to steps four and five. Next, the Administrative Law Judge (“ALJ”) is to consider whether the claimant retains the residual functional capacity to perform his past relevant work, which the claimant bears the burden on demonstrating. If the claimant does not meet the burden, the claim is denied.  If the claimant is unable to resume his former occupation, the burden shifts to the Commissioner who must demonstrate that the claimant is capable of performing other work, other jobs which the claimant can perform.
The ALJ found that the Plaintiff has a medically determinable impairment of migraine headache but found that Plaintiff’s testimony concerning the intensity and limiting effects were not consistent with the medical evidence. The ALJ concluded that the Plaintiff’s treating doctors were not persuasive because they may have relied extensively on self-reported symptoms and that Plaintiff’s migraines were much less debilitating than he described. Lastly, the ALJ found that the Plaintiff should be able to work through his pain.
The Plaintiff argued that the ALJ failed to formulate the Plaintiff’s residual functional capacity to adequately account for limitations caused by Plaintiff’s severe migraines. The ALJ discounted Plaintiff’s testimony that he suffered multiple debilitating migraines per month because the doctors’ visits suggested that the Plaintiff showed up for his appointments and was not impaired at the visits. The ALJ also argued that the Plaintiff’s migraines would be reduced in frequency or so mild that he could work through them if he reduced his medication.
The Court granted the Plaintiff’s motion and remanded the matter back to the Commissioner of the Social Security Administration to give further consideration of the evidence that Plaintiff is unable to perform light work when he is suffering from a migraine and explain the weight given to such evidence. The Court found that the fact that the Plaintiff is not debilitated all of the time is not substantial evidence that he is not debilitated some of the time. Further, there was no substantial evidence in the record to support the conclusion that the migraines would be reduced if medication was reduced. For those reasons, the Court remanded the matter.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
McCracken v. Kijakazi, No. 20-cv-01223-JLH (D. Del. December 27, 2021)
Delaware: Home of Tax-Free Shopping and PIP Benefits
Plaintiff, a Maryland resident, was operating a Maryland registered vehicle, insured (by Defendant Insurer) pursuant to a Maryland automobile policy when she was injured in an accident in Delaware.
Prior to the accident, Plaintiff had declined to obtain Maryland PIP coverage under the policy issued by Defendant Insurer. So, no coverage – no claim. Not quite.
Plaintiff averred she was entitled to PIP coverage under the Delaware PIP statute, which requires out-of-state drivers have PIP coverage in their home state. Defendant Insurer disagreed, arguing Plaintiff waived PIP coverage in accordance with Maryland law, and thus, should not receive a benefit for which she paid no premiums by virtue of the fact the accident occurred in Delaware. Both parties proceeded with dispositive motions on the issue.
The Delaware Superior Court reviewed prior case precedent as well as the plain language of the Delaware PIP statue which requires all vehicles operated in Delaware to maintain insurance equal to the minimum insurance required by the state or jurisdiction where the vehicle is registered. If such State requires no minimum insurance, then such owner must have insurance equal to the minimum insurance coverage required for Delaware motor vehicles.
Ultimately, the Court found the extraterritoriality provision of Plaintiff’s Maryland policy to be determinative. The extraterritoriality provision required Defendant Insurer to provide the “required minimum and types of coverage” when the covered vehicle is involved in an accident in a state that requires non-resident drivers to maintain insurance. Since Delaware requires PIP coverage, which is optional (thus not required) under Maryland law, Defendant Insurer was contractually obligated under the policy to provide PIP coverage pursuant to Delaware law.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Burkhardt v. Progressive Select Ins. Co., 2021 WL 5903310 (Del. Super. Ct. Dec. 13, 2021).
Martin Luther King
Day of Service
Heckler and Frabizzio staff participated in the Delaware State Bar Associations Martin Luther King Jr. Day of Service. Our team volunteered at the Friendship House a Delaware non-profit with the mission to unite people facing homelessness by proving a supportive place they can call home. Thank you to the H&F team who donated their time to help others.
Keeping up with H&F
Welcome to the Partnership
Heckler & Frabizzio is proud to announce our new partner, Miranda Clifton, effective January 17, 2022. Ms. Clifton will be practicing in the Firm’s liability department led by Patrick Rock. As a Partner, Ms. Clifton will continue to further the firm’s mission statement as THE Preeminent Delaware Law Firm.
Shiree Sibbley, paralegal, is proud of her son, Truth Anderson, who is 8 years old. Truth began playing football for the first time this year. His team had an undefeated season and won the Super Bowl for their division. Truth also played and won the Elite All-stars Game. Truth has now been invited to Atlanta for the D1 All American Bowl to represent Delaware and play with the Delaware All-stars team for his league. Congratulations, Truth