July 2017

Professional Beekeeper Knew Bees Sting        
In May of 2014, a tractor-trailer transporting over two million bees overturned and the bees escaped. Plaintiff, a professional beekeeper, was sent to the accident scene to salvage the bees. It turns out, the bees did not want to be salvaged. They continuously stung Plaintiff while he worked. As a result, Plaintiff developed a permanent venom allergy.
Plaintiff filed suit against Defendants alleging negligence related to the loading and transporting of the bees. Defendants moved for summary judgment contending that such claims were barred by the doctrine of primary assumption of risk.
The Delaware Superior Court reviewed prior precedent that indicated a primary assumption of risk is implicated when a plaintiff “expressly consents to relieve the defendant of an obligation and takes his chances of injury from a known risk arising from what the defendant is to do or leave undone.” Such, ‘express consent’ can be manifested through conduct. In finding for the Defendants, the Court noted Plaintiff’s professional status and experience as a beekeeper, use of protective clothing and precautions, and testimony that he continued to work after being stung numerus times. The Court further concluded bee stings were an inherent risk associated with the salvage operation.
Of particular note, Plaintiff argued that knowledge of the risk does not necessarily constitute primary assumption of risk. In support, Plaintiff cited premise liability cases based on an unsafe condition (i.e. slip and falls, inadequate security). The Court distinguished such cases as they did not involve professionals hired to deal with the risk that ultimately cause their injuries, nor was there an agreed upon shifting of such risk.
For more information on this matter or other legal questions, feel free to contact Michael W. Mitchell or any attorney in our Liability Department.
Sanders v. Odilia’s Express, Inc., 2017 Del Super. LEXIS 317 (June 23, 2017).

The Hand Bone Is Not Connected
To The Back Bone:
Employer accepted right thumb and ulnar nerve injuries as compensable, including a right thumb surgery. Following the surgery, claimant underwent compensable physical therapy and work hardening.
Claimant then filed a Petition with the Industrial Accident Board alleging that she injured her low back during post-operative work hardening. She alleged that there was no acute injury in work hardening, rather, the cumulative effect of multiple different exercises caused an aggravation of pre-existing back problems. She also sought payment for a three level lumbar fusion surgery, which Dr. Rudin had recommended and then performed after seeing Claimant on only two occasions following her alleged onset of low back pain.
The Board rejected Claimant’s Petition, finding that the ordinary stress and strain of work hardening had not aggravated claimant’s pre-existing back problems. Claimant had treated for low back pain for several years prior to the work hardening activities without resolution of her symptoms. When claimant first saw Dr. Rudin, she did not reference what she thought had caused her symptoms. There was no history in the actual work hardening records of any particular activity causing back pain. Claimant testified that she stopped going to work hardening because it hurt her back, but records from work hardening and her hand surgeon did not support this history. Claimant conceded to the Board that her activities in therapy/work hardening were mostly limited to the right arm and hand – activities that would not impact the back. Both medical experts agreed that Claimant’s MRI studies did not show any acute pathology to the lumbar spine following work hardening. All things considered, the Board held that Claimant failed to meet her burden of proof to establish a causal connection between the hand injury post-surgery therapy, and the three level lumbar spine fusion surgery.
For questions regarding this Decision, please contact John Gilbert, or any other attorney in our Workers’ Compensation Department.
Kuykendall v. Walgreens, IAB Hrg. No. 1427460 (June 28, 2017)

Unemployment Insurance Appeal Board’s Consideration Of  

Inadmissible Evidence Does Not Amount To Reversible Error
Under Delaware law, the Unemployment Insurance Appeal Board, as well as other informal tribunals, are not strictly bound to the Delaware Rules of Evidence. Ellicott v. Stericycle, Inc., 2015 WL 311094, at *5 (Del. Super. Jan. 23, 2015). However, under Board Rule 4.7, the Board does follow all Delaware Rules of Evidence, with the exception of the rules regarding Hearsay evidence. In regard to hearsay, the Board “may admit and consider hearsay evidence, but it may not base its decision solely on hearsay or other evidence not admissible under the Rule of Evidence.” 19 Del. Admin. §1201.4.7.1. Additionally, in regard to any photographic or video evidence, the original is required, unless all originals has been lost or destroyed, no original can be obtained by any available judicial means and/or the content is not closely related to a controlling issue.”
In the matter of Steven D. Pierce v. Elizabeth Murphey School, et al., Steven Pierce (“Pierce”) was terminated from employment as a House Parent at the Elizabeth Murphey School (“Employer”) following an incident with a student during which Pierce was found to have used improper restraint techniques. On appeal from the claim deputy’s decision finding that Employer had just cause for termination, Pierce raised the issue that several pieces of evidence considered by the Board should have been inadmissible under the Delaware Rule of Evidence. In affirming the Board’s decision, the Court found that Employer had no duty to provide certain documents to Pierce without the issuance of a Subpoena. The Court noted that because Pierce had the means to obtain the documents he was now objecting to under Board Rule 4.8, he had no right to object solely because he failed to issue a subpoena for the documents.
The Court did note that the Board had improperly admitted testimony and evidence regarding the alleged surveillance video from Employer. As Employer did not submit the original video or copies of the same, the Court found that any testimony regarding the video was inadmissible. However, because the Board provided alternative grounds for its finding, to include Pierce’s own testimony, the Court found that this testimony did not provide grounds for reversal of the Board’s decision. The Court concluded that that the Board did not abuse its discretion and did have substantial evidence to support its finding. Therefore, the Board’s finding that Pierce had been terminated for just cause was affirmed.
For questions about this matter or other employment issues, please contact any attorney in our Employment Law Division.
Steven D. Pierce v. Elizabeth Murphey School, et al., C.A. No. K16A-07-004 WLW (Del. Super. Ct. Feb. 3, 2017).

July 19, 1848
1st US women’s rights convention held at the Wesleyan Chapel in Seneca Falls NY, convenes with almost 200 women in attendance. The convention was organized by Elizabeth Cady Stanton & Lucretia Mott.

NBI Workers’ Compensation Seminar
On August 1st and August 2nd please join our attorneys at the NBI Workers’ Compensation Seminar in Wilmington, Delaware. Partner John Gilbert will be speaking on Strategies for Workers’ Compensation Hearings on August 1st at 1:45 p.m. John Ellis will be presenting on Medical Issues in Workers’ Compensation on August 2nd at 10:00 a.m. Gregory Skolnik will present on the issue of Calculating the Value of a Claim on August 2nd at 11:15 a.m. as well as Ethics at 3:30 p.m. For more information please follow this link.
Firm Picnic
Here at Heckler & Frabizzio we reward our staff for their preeminence! We pride ourselves on the services we provide and could not do it without our team. Therefore, on August 25th at 12:00 p.m. we will be blissfully unavailable as we will be celebrating the hard work that goes into our business at our annual Firm Picnic. Thank you to all of our staff and we look forward to another great year.
Check Our Website!
Heckler & Frabizzio is proud to announce we have developed a useful tool that will allow our clients to view Jury Verdict information in one central location. Please click the following link to access our Jury Verdict information. www.hfddel.com