July 2021

Did You Know? Recent Delaware Workers Compensation Developments:
  • Live hearings have resumed at the Industrial Accident Board effective July 12! Employers/carriers may observe a corresponding increase in disfigurement hearings and Petitions given disfigurement hearings have not been conducted since before the pandemic began.
  • Even before July 12, in person hearings did take place on a limited basis, upon request of the parties. Nick Bittner, partner, handled a live in-person Hearing at the Board on 4/12/21, only the second live, in person, Hearing held since the pandemic. Torres v. Star Building Services, Inc. This Hearing was requested to be conducted in person, primarily due to the need for a translator and complexity of issues presented. The Board found in Employer’s favor on both of claimant’s Petitions. Great job Nick!
  • The Department of Labor/Industrial Accident Board building in Wilmington is set to be renovated prior to formally reopening to the public, at a date to be announced.
  • Carrier beware (when calculating AWW)! In the recent matter of Garcia-Espinoza v. American Bread Co., the Board denied awarding any more than a 25% credit for an overpayment of total disability based upon an incorrectly calculated average weekly wage, noting that the carrier missed two opportunities to see that the pay stubs were for bi-weekly rather than weekly compensation. In reaching this decision, the Board looked to the relative sophistication of the carrier over that of the claimant.
  • Board denies multiple myeloma cancer compensability after Hearing: Greg Skolnik successfully defended, through to Hearing, allegations that a claimant’s decades long service as a firefighter, where he was indisputably exposed to a variety of carcinogens, caused multiple myeloma, a bone and blood type cancer. The Board noted that even claimant’s medical expert agreed that the medical science had not been able to identify any specific etiology or carcinogen causative of multiple myeloma, and claimant carried the three most commonly known risk factors for this condition – age, race, and gender.
  • New trend: Carpal tunnel no longer “slam dunk” for the “repetitive use” injured worker? Recent case law has suggested that the Board is applying closer scrutiny and more often rejecting carpal tunnel and other repetitive use type claims. These claims should therefore, be very thoroughly investigated, and our office contacted with any questions prior to making compensability determinations.
Employee’s Attempts to Secure Unemployment After Resigning Fail
In August 2019, the Plaintiff began working for Defendant. On October 6, 2019, the Plaintiff submitted her two-weeks’ notice to her supervisor. The plaintiff was scheduled to work on October 8th and 9th, but she called out sick on both days. The Defendant told the Plaintiff that she was no longer required to return to work to complete her two weeks. The Plaintiff then filed for unemployment benefits and the Claims Deputy found that the Plaintiff was disqualified from benefits because she resigned from her employment. When an employee resigns from a position, that employee has the burden of showing good cause for resigning, such as a “substantial reduction in wages or hours or a substantial change in the original agreement of hire which represents a change in the working conditions to the employee’s detriment.”
Here, the Plaintiff complained about another employee who was talking behind the Plaintiff’s back, spreading rumors, and causing other issues that made the plaintiff feel she was being subjected to a hostile work environment. The Plaintiff reported her concerns to her supervisor and the general manager but never to human resources.
The Plaintiff appealed the decision to the Appeals Referee, who upheld the Claims Deputy’s decision. The Appeals Referee found that the Plaintiff failed to exhaust her administrative remedies by not reporting her concerns to human resources. The Plaintiff also never told Defendant that she would resign if her concerns were not address.  Next, the Plaintiff appealed the decision to the Unemployment Board, who affirmed the Referee’s decision. The Board concluded that the Plaintiff failed to meet her burden. Finally, the Plaintiff appealed to the Superior Court.
The Court reviews the Board’s decision for legal error and whether its factual findings are supported by substantial evidence in the record. Substantial evidence means “such evidence as a reasonable mind might accept as adequate to support a conclusion.” 19 Del C. §3314 states that “an individual cannot qualify for unemployment benefits where that individual leaves work voluntarily without good cause attributable to such work.” Good cause exists if no reasonable prudent employee would have remained employed and the employee first exhausts all reasonable alternatives to resolve the issue, which means notifying the employer of the problem, requesting a solution and bringing the problem to the attention of someone in authority to make the necessary adjudgments.
Here, because the Plaintiff did not report her concerns to human resources or tell the Defendant that she would resign if her concerns were not addressed, the Court agreed with the Appeals Referee and the Board that the Defendant was not given adequate notice to address the Plaintiff’s concerns before she resigned.
Therefore, the Court affirmed the Board’s decision and found that the Board’s decision was supported by substantial evidence and was without legal error.
(Del.Super. 2021) [Not Reported]
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Scott v Homewood Suites, 2021 WL 2577599
A Good Deed Goes Unpunished
Plaintiff’s vehicle was struck from behind by a pick-up truck that left the scene of the accident shortly after it occurred. Prior to its departure, Plaintiff relayed the truck’s tag number to the 911 operator and described its driver as a thin Caucasian female with blonde hair.
The truck was registered to Defendant Owner, an elderly black female, who had lent it to her grandson. It was undisputed that her grandson was not operating the truck at the time of the accident. However, her grandson’s wife fit the description of the truck’s driver provided by Plaintiff.
Plaintiff sued Defendant Owner under a theory of negligent entrustment as well as her own uninsured motorist carrier. Subsequently, Defendant Owner moved for summary judgment averring that Plaintiff was unable to establish a prima facie case for negligent entrustment which requires proof that: (1) a vehicle was entrusted by the owner; (2) to a reckless or incompetent driver such that, in that driver’s control, the automobile becomes a dangerous instrumentality, (3) the owner knows or has reason to know the driver is reckless or incompetent, and (4) said driver causes damage to persons or property.
The Delaware Superior Court sided with Defendant Owner. The Court found that she was entitled to summary judgment because she lent her truck to her grandson – who was undisputedly not driving the vehicle at the time of the accident – and there was no evidence that Defendant Owner was aware that the truck would be operated by someone other than her grandson. Moreover, the Court found no evidence in the record that her grandson’s wife was a reckless or incompetent driver. Therefore, the Defendant Owner’s Motion for Summary Judgment was granted.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Boulden v. Mosley, et al., 2021 WL 1424300 (Del. Super. Ct. Apr. 15, 2021).
Heckler & Frabizzio is happy to announce our partnership with the Choir School of Delaware, a Wilmington based after school program designed to teach kids of various ages leadership and language skills, academic support, and college-bound mentoring through musical training. Our Firm will be presenting to the kids on July 23rd about considering a career in the legal field. If you would like to make a donation to this awesome organization please follow this link. Thank you!
Congratulations to John Ellis, Partner, for his new role as regional vice chairperson for the Northeast Region of the NWCDN (National Worker’s Compensation Defense Network). Mr. Ellis will serve a two year term working with the board of directors.
Natalie Bogia was recently promoted to Human Resources Assistant Manager. Natalie has worked at the Firm since 2017 and is also finishing her bachelors degree in Human Resources in the fall. Congratulations, Natalie, keep up the good work!
Sophia Elliott, legal secretary, adopted a tabby cat named Leo. Leo is thrilled about his new home. Congratulations, Sophia!
Patrick Rock, partner, and climbing enthusiast made world history by climbing mount Everest for the 10th time! Patrick said its like a walk in the park.
Please contact Page Chase, Firm Administrator, to submit exciting news including, promotions, adjuster updates, accolades, accomplishments, and the like. You may also submit ads for open positions.