June 2016

Hearing Officer Finds Experimental Fusion Surgery Proposed By Dr. Rastogi Unreasonable And Grants Employer’s Termination, Awarding No Attorneys Fee
In Brewton v. K. Wolf Construction, Inc., a claimant was receiving Total Disability benefits for an acknowledged back injury. The Employer/carrier’s medical expert, Dr. David C. Stephens, determined the claimant could work in a sedentary, part-time duty capacity. Accordingly, a Termination Petition was filed by the Employer/carrier. Subsequently, claimant’s treating physician, Dr. Pawan Rastogi, recommended a fourth back surgery described as bilateral sacroiliac joint fusion. Employer/carrier took the position that another fusion surgery was unreasonable medical treatment based on Dr. Stephen’s review and defense medical examination.
During the 4/11/16 Industrial Accident Board Hearing, Dr. Rastogi testified that the claimant was totally disabled pending surgery, but could probably do sedentary duty work if no surgery was performed. Both parties stipulated that the Hearing Office could hear the matter and in Chris Baum’s 5/16/16 Decision, he determined that the proposed bilateral sacroiliac joint fusion surgery has not been shown by a preponderance of evidence to be reasonable and necessary medical treatment. Mr. Balm also determined that claimant was no longer totally disabled as of the date of the Decision. An award for Partial Disability benefits was made based on the Employer/carrier’s reasonable 30-day offer which was supported by a Labor Market Survey. No attorney’s fee was awarded because the award for Partial Disability benefits was equal to the 30-day offer.
Chris Baum relied on several salient facts in forming his decision. Specifically, he found it persuasive that the claimant was already fused solid from L3-S1, and Dr. Rastogi’s proposed surgery would extend the fusion even further which should warrant more cautious treatment. Also, the imaging studies did not show any pathology on the left joint and only mild signs on the right, the injections and ablation did not show any prolonged benefit. Perhaps most persuasive was that Dr. Rastogi had never actually performed a bilateral fusion on any patient. The Hearing Officer opined that the claimant would be well advised to seek a second opinion on the matter.
For more information on this or other workers’ compensation matters, please contact John W. Morgan or Kristen S. Swift at 302-573-4800302-573-4800.

  Non-striking Vehicle Must Provide PIP Benefits in Pedestrian Accident
When a student crosses the road to get onto a bus and is hit by another vehicle, the bus insurer must provide PIP coverage. On May 19, 2016, the Delaware Supreme Court affirmed the Superior Court’s decision to grant PIP coverage to the minor student. The Supreme Court approved the application of the Friel v. Hartford Fire Ins. Co. analysis to determine that a student in the process of crossing the road to board a school bus was eligible for Personal Injury Protection (“PIP”) benefits.
The litigation arises from an accident in which Stephanie Buckley was hit by another vehicle when she crossed the street to board the bus after receiving the signal from the driver of the school bus. The insurer of the bus, State Farm, filed a Motion for Summary Judgment alleging the student was not an occupant of the bus at the time of the accident or injured in an accident involving a motor vehicle and therefore not entitled to PIP benefits. The Court applied the compound analysis discussed in Friel – which combined Fisher to determine whether plaintiff is an ‘occupant,’ and Kelty to determine whether the accident ‘involved a motor vehicle.’ The Court concluded plaintiff was an ‘occupant’ as she was entering the school bus at the time of the accident and therefore in a “reasonable geographic perimeter.” Furthermore, the accident ‘involved a motor vehicle’ because the bus driver, by law, controlled the process by which the student entered and exited the bus. Notably, the Court distinguished intentional or criminal acts – that can break the causal link between use of the vehicle and the injuries inflicted – from negligence of a tortfeasor.
For more information on this matter or other legal questions, feel free to contact Michael W. Mitchell or any attorney in our Liability Department.
State Farm Mut. Auto. Ins. Co. v. Buckley, No. 516, 2015, 2016 Del. LEXIS 299 (May 19, 2016).

 District Court Address “Sex-Plus” Problem Under Title VII
Judge Stark of the United States District Court for the District of Delaware addressed a “sex-plus” claim brought by a pro se defendant under Title VII of the Civil Rights Act of 1964. Dorreatha S. Cornish, a pro se plaintiff, alleged employment discrimination against Wal-Mart for marital status discrimination pursuant to 42 U.S. Code § 2000 e-5. Cornish alleged she was discriminated against based on her age, race, and single marital status. Specifically, Cornish alleged that was discharged from employment with Wal-Mart because she was unable to pass one of six competency tests while other white female co-workers who were married and exhibited similar performance issues were given opportunities to transfer to other departments instead of being discharged. Wal-Mart moved to dismiss for failure to state a claim on which relief may be granted.
Under Title VII, sex discrimination claims brought forth alleging discriminatory practices due to marital status are commonly referred to as “sex-plus” problems. “Sex-plus” discrimination is not actually found in Title VII because it grew out of case law to address a “loophole” that occurred in Title VII. The Third Circuit has recognized that a “sex-plus” claim can arise where the employer has a criteria or factor for one sex (in this scenario, marital status), which is not added for the other sex. To survive on the “sex-plus” claim in this instance, Judge Stark determined that Cornish would have had to show that Wal-Mart treated her less favorably than a male counterpart or evidence of any other circumstances including impermissible stereotyping, to raise an inference of gender discrimination under Title VII.
Judge Stark granted Wal-Mart’s Motion to Dismiss the marital status discrimination claim with leave to amend, and allowed the claims for race and age discrimination to survive Wal-Mart’s 12(b)6 Motion to Dismiss. Judge Stark noted that the Court is required to liberally construe allegations in Cornish’s’ claims because she is proceeding pro se. Therefore, it appears that even though plaintiff did not specifically reference the Age Discrimination and Employment Act 29 U.S. C. § 621 (ada), the Complaint was not dismissed for imperfect statements and legal theory.

Please contact our office for employment law questions or general litigation matters at 302-573-4800302-573-4800.


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.
Paying it Forward
Please visit Anthony Frabizzio at the St. Anthony’s Italian Festival which runs from Sunday, June 12 through Sunday, June 19.  The Frabizzio Family runs the Nona Strada Café at the Italian Festival that week. Admission will be $5.00 for ages 14 – 61. Under age 14 (if accompanied by parent or guardian 18 or older) & over age 61 FREE! 8-Day passes will also be available on-site for $15.00.