July 2016


Gamble Does Not Pay Off For This Delaware Park Employee

Jeffrey Hodge, a Delaware Park employee, filed a Petition for recurrence of total disability beginning 9/8/15 and ongoing and alleging a lumbar spine condition related to a 7/7/14 work accident. Luck was not on Mr. Hodges’ side on 7/7/14 when, while working with a horse with an ankle injury after a race, he was transporting the horse in a trailer being driven by another person who suddenly slammed on the brakes, causing the claimant to lose his balance and fall, which in turn caused the horse to fall on the claimant.

The employer had acknowledged a 7/7/14 work injury to the neck so the primary issue before the Board was whether claimant suffered an additional injury to the lumbar spine related to the work accident. The claimant gambled and he lost. The claimant was unable to show by a preponderance of the evidence that he injured his low back or otherwise caused an exacerbation, acceleration, or aggravation of a preexisting condition to his low back related to the 7/7/14 work accident.

This case is interesting because the claimant had an established history of a significant underlying low back condition for which he was treating and very symptomatic at the time of the work accident. Claimant had a history of lumbar fusion surgery from L4-5 to L5-1 in 2008 and his medical expert, Dr. Eskander, testified that after this type of surgery a 3% per year deterioration is expected at the adjacent levels. Claimant also admitted to the Board that because of his low back condition he was instructed by his physicians before the work accident occurred to get an easier job. The Board also found it persuasive that the WorkPro records immediately after the July 2014 work accident through September 2014 do not show any contemporaneous treatment of a low back issue or complaints related to the low back and when claimant began seeing Dr. Eskander in September 2014 he only complained of neck, arm, and thoracic spine issues.

Dr. Gelman, testifying for the Employer, noted that during his first examination in 2015, the claimant denied that he suffered a low back or any shoulder injury in the work accident. Then, during Dr. Gelman’s second examination in November 2015, the claimant reportedly told Dr. Gelman that now that his neck had been addressed, his low back had become the focus.

For more information on this case or other workers compensation matters please feel free to contact Kristen Swift or Maria Paris Newill or any other attorney in our Workers Compensation Department.


Avoiding Bad Faith: Claim Valuation Is In The Eye Of The Beholder.

On June 14, 2016, the Delaware Supreme Court reiterated the legal basis necessary to establish a bad faith claim for breach of an insurance contract. The litigation arises from a 2005 automobile accident from which Joann Enrique alleged numerous injuries, including trauma to the knee that required surgery. Enrique sought recovery from her uninsured motorist policy with State Farm (“Insurer”). The Insurer denied benefits due to causation issues related to Enrique’s preexisting knee problems. Thereafter, the parties engaged in settlement negotiations. The adjuster consulted numerous “experienced” individuals (including Delaware counsel) for their opinion as to the valuation of the claim. All arrived at different values. The jury returned a $260,000 verdict and Enrique thereafter pursued her bad faith claim. The Superior Court granted summary judgment on behalf of the Insurer because Enrique failed to make a prima facie showing of bad faith.

The Delaware Supreme Court affirmed the Superior Court’s Order granting summary judgment. In its analysis, the Court reviewed prior precedent that implies there is a duty of good faith and fair dealings in adjusting an insurance claim. The Court further noted that, upon breach, punitive damages are an available remedy where the insurer acts with “malice or reckless indifference,” or “clearly without reasonable justification.” However, the Court reasoned that disparate valuations demonstrate the inherently subjective nature of valuing a personal injury claim. The Court therefore concluded that Enrique had not pointed to evidence of bath faith. The dissent concluded summary judgment was premature as issues of fact exist and a reasonable jury could find that the Insurer acted in bad faith. The dissent specifically noted that the Insurer knew Enrique was unemployed and therefore under economic pressure and never made an offer even at the low range of its own valuation.

Our Liability Department handles a variety of insurance defense claims including bad faith. For more information on this matter or other legal questions, feel free to contact Michael W. Mitchell or any attorney in our Liability Department.

Enrique v. State Farm Mut. Auto. Ins., No. 618, 2015, Seitz, J. (June 14, 2016).


Caring Employees Protected From Work Place Discrimination

House Bill 317, sponsored by Representative Debra Heffernan, was introduced in the House of Delaware’s General Assembly on April 19, 2016. The synopsis of the Bill discusses the goal to prohibit discrimination on employment based upon an individual’s caregiving responsibility outside of the workplace.

After its introduction on April 19, 2016, the Bill was amended to describe the definition of family responsibilities, to mimic language in Delaware’s employment discrimination statute dealing with other protected classes, and to clarify that the duty not to discriminate based on family responsibilities does not require or place a burden on an employer to accommodate these employees, but rather requires employers to treat these employees equal to other employees by applying personnel policies equally. “Family responsibilities” has been defined to mean obligations of an employee to care for any family member who would qualify as a covered family member under the Family and Medical Leave Act. This Bill was signed into law on June 30, 2016.

The passage of this Bill continues a trend in Delaware and across the country seeking to ensure equal treatment of all employees in the workplace. House Bill 317 was introduced along with House Bill 316, which is a legislative attempt to reinforce employees’ right to privacy in the workplace regarding health and reproductive issues. A companion Bill, House Bill 314, was also introduced in April and signed into law in May. House Bill 314 makes it unlawful for an employer to require an employee to keep his or her wages secret or to attempt to prevent discussions regarding wages from occurring.

For more information on this legislation or other employment law matters, feel free to contact Kristen Swift or any attorney in our Employment Law Department.


Seminar Opportunity

Litigation Attorney Patrick Rock will be giving a seminar on Personal Injury 101 on July 28th, 2016 at the Sheraton Wilmington South Hotel. This seminar is sponsored by the National Business Institute. For more information or to attend this event please visit www.nbi-sems.com.

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