June 2018

IAB Continues Trend of Closely Scrutinizing Narcotic Medications, and Then Some!
Claimant sustained a compensable left ankle injury in 2011 and received various medical, total disability, partial disability, and permanent impairment benefits. After approximately 3 years of treatment, Claimant transferred her care to Dr. Balu, who treated Claimant with Norco (narcotic medication), gabapentin, muscle relaxer, NSAID, a compound cream, and 2-4 chiropractic manipulations per month. In 2017, Employer filed for Utilization Review. UR found the treatment compliant. Employer obtained a DME opinion from Dr. Schwartz finding that Dr. Balu’s treatment should be completely discontinued, and filed an Appeal to the Board.
The Board issued a Decision dated 5/17/18 granting Employer’s Appeal in its’ entirety, finding Dr. Balu’s treatment not compensable, and ordering Employer to pay for narcotic medications for a 12 week period to allow Claimant to be safely weaned. The Board found Claimant to be not credible, citing records from the months after the accident where her own treating doctors were suspicious of her ongoing complaints. There was evidence at that time of drug-seeking behavior. Claimant and Dr. Balu testified quite adamantly at the Hearing that the reason she had left her prior pain manager and transferred to Dr. Balu was because her prior pain manager was having legal troubles, when in fact, the prior physician’s medical records documented that Claimant had been discharged for multiple compliance issues. The Board found that Claimant was not forthcoming about a prior foot surgery, which she tried to downplay as a “callous removal” when it was an osteotomy where a foot bone was shaved down and a screw inserted. She was not credible in disclosing other prior injuries, as she had a motor vehicle accident which caused her to miss work for 2 years with treatment for chronic pain.
The Board also found Dr. Balu not credible and accepted the opinions of Dr. Schwartz as more persuasive. The Board noted that there was no evidence of positive patient response in Dr. Balu’s records, and despite that, he never substantially altered her treatment plan for over 5 years. The Board agreed with Dr. Schwartz that dangerous narcotic medications should not be allowed without documentation of positive patient response/improvement in function. The Board noted that none of the non-narcotic treatments allowed Dr. Balu to decrease Claimant’s narcotic medications, nor was there any meaningful improvement in her function or even subjective pain scores from this treatment. Therefore, the Board held that the entirety of Dr. Balu’s treatment was not compensable, which included the narcotic medications, muscle relaxer, gabapentin, NSAID, compound cream, and chiropractic treatment.
Should you have any questions concerning this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.
Charlotte Crossman v. State of Delaware, IAB Hrg. No. 1376583 (May 17, 2018)

Negligent Infliction Of
Emotional Distress Claim Denied
Where Not In the Zone Of Danger
On October 5, 2014, an unfortunate accident occurred on I-95 involving a Plaintiff and two Defendants.
Plaintiff was driving on I-95 when she was cut off by another motorist causing Plaintiff’s vehicle to swerve off the roadway. A motorist stopped her vehicle in the median and attempted to cross the highway, apparently in an attempt to check on the Plaintiff. During this attempt, she was struck and killed by Defendant.
Plaintiff filed suit against the estate of the deceased Defendant for negligence and against Defendant, arguing negligence under the “zone of danger.” Plaintiff stated she had an emotional scar that is not able to heal because she was in the zone of danger of the deceased Defendant’s death.
Subsequent Motions for Summary Judgment followed from Defendant and decedent Defendant. Decedent Defendant’s estate argued that Plaintiff’s case should be dismissed because Plaintiff was not in the zone of danger and Plaintiff failed to provide evidence of physical injury. Defendant argued the case should also be dismissed because Plaintiff did not witness the impact between Defendant and decedent Defendant, Defendant was not acting improperly on the roadway and Plaintiff failed to present a medical opinion to support physical injury relating to the traumatic experience.
To prove negligence, a Plaintiff must show: (1) duty; (2) breach; (3) causation; and (4) damages. Under a straight claim of negligence, decedent Defendant owed a duty of care to the Plaintiff as a fellow motorist. However, Defendant did not owe any duty to Plaintiff to not strike a pedestrian in Plaintiff’s presence. The legal issue of “zone of danger” is best addressed in negligent infliction of emotional distress cases.” The zone of danger is that area where the negligent conduct causes the victim to fear for his own safety.” To be in the zone of danger, the Plaintiff must show that, as a result of the negligent conduct of the Defendant, she feared for her own safety. In Delaware, the Plaintiff must be within the path of the oncoming car to qualify as within the zone of danger.
The Court ruled that Defendant did not owe any compensable duty to the Plaintiff in regard to striking decedent Defendant. The Court also ruled that the Plaintiff was not in the zone of danger so as to meet the requirements for negligent infliction of emotional distress. The Court reasoned that the Plaintiff was sixty feet away when the decedent Defendant was struck. Additionally, the Plaintiff did not witness decedent Defendant being struck, she only heard the impact and saw the aftermath. Therefore, Defendant’s Motion for Summary Judgment was granted as to any claim asserted by the Plaintiff and decedent Defendant’s Motion for Summary Judgment was granted as to Plaintiff’s negligent infliction of emotional distress claim. However, decedent Defendant’s Motion for Summary Judgment as to Plaintiff’s negligence claim was denied because decedent Defendant owned a duty to the Plaintiff as a fellow motorist.
Should you have any questions concerning this decision, please contact Michael Pedicone, who represented the Defendant in this matter, or any other attorney in our Liability Department.
Elsey-Jones v. Gullion, 2018 Del. Super. LEXIS 242, (Del. Super. Ct. June 5, 2018)

You Get What You Bargain For:
Supreme Court Overturns Sixth Circuit Award of “Vest-for-Life” Health Insurance Benefits

As a way to manage the rights and benefits of union employees, Employers generally seek the protections of a collective bargaining agreement. The Agreement is a legal contract which outlines important workplace issues, such as conditions of working, pay, dispute resolution and benefits for both current employees and retirees. Following the Supreme Court’s Decision in
International Union, et al. v. Yard-Man, Inc., courts did state in a variety of circumstances that collective bargaining agreements vested retirees’ benefits for life. However, and finding that the Sixth Circuit Courts in particular were improperly applying “Yard-Man Inferences”, such that no other courts would reach the same conclusions, the United States Supreme Court’s decision in
M & G Polymers USA, LLC v. Tackett held that collective bargaining agreements would now be interpreted using “ordinary principles of contract law.” This would include the individual interpretation of each contact as to whether retiree benefits did in fact vest for life or whether other durational terms applied.
In CNH Industrial, N.V., et al. v. Jack Reese, et al., the Supreme Court addresses a dispute between CNH Industrial (“Employer”) and Retirees of the same as to “whether an expired collective-bargaining agreement created a vested right to lifetime health care benefits.” Under the 1998 Collective Bargaining Agreement, Retirees were entitled to health insurance benefits provided they were covered under the Pension Plan. All other coverages provided by Employer under the Agreement did cease upon retirement and further, the agreement did contain a durational clause, stating such would expire in May 2004. The agreement also noted that it “disposed of all bargaining issues, whether or not presented during negotiations.” In finding for the Retirees, the Sixth Circuit found that the contract was silent on the issue as to whether the benefits vested for life and was therefore ambiguous. Given the purported ambiguity, the Sixth Circuit proceeded to apply the Yard-Man Principles to find the benefits did in fact vest for life, despite the Supreme Court’s explicit rejection of the same in Tackett.
In overturning the Sixth Circuit’s Decision, the Supreme Court noted not only the inappropriate application of the Yard-Man Inferences, but that the asserted “ambiguities” were such that no other Court “would find ambiguity in these circumstances.” The Court noted that the 1998 agreement contained a durational clause that applied to “all benefits, unless noted otherwise.” In the case of health care benefits, there was no separate durational clause, but rather, that such benefits “ran concurrently” with the agreement itself. Therefore, the Court held that when the Collective Bargaining Agreement expired in May 2004, so did the Retirees’ rights to any benefits under the same.
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
CNH Indus. N.V., et al. v. Reese, et al., 138 S. Ct. 761 (2018).

June 21, 1788
Constitution of the United States Ratified
On June 21, 1788, New Hampshire became the ninth and last necessary state to ratify the Constitution of the United States, thereby making the document the law of the land.  By 1786, defects in the post-Revolutionary War Articles of Confederation were apparent, such as the lack of central authority over foreign and domestic commerce. Congress endorsed a plan to draft a new constitution, and on May 25, 1787, the Constitutional Convention convened at Independence Hall in Philadelphia. On September 17, 1787, after three months of debate moderated by convention president George Washington, the new U.S. Constitution, which created a strong federal government with an intricate system of checks and balances, was signed by 38 of the 41 delegates present at the conclusion of the convention. As dictated by Article VII, the document would not become binding until it was ratified by 9 of the 13 states. Beginning on December 7, 5 states-Delaware, Pennsylvania, New Jersey, Georgia and Connecticut-ratified it in quick succession. However, other states, especially Massachusetts, opposed the document, as it failed to reserve undelegated powers to the states and lacked constitutional protection of basic political rights, such as freedom of speech, religion, and the press. In February 1788, a compromise was reached under which Massachusetts and other states would agree to ratify the document with the assurance that amendments would be immediately proposed. The Constitution was thus narrowly ratified in Massachusetts, followed by Maryland and South Carolina. On June 21, 1788, New Hampshire became the ninth state to ratify the document, and it was subsequently agreed that government under the U.S. Constitution would begin on March 4, 1789. In June, Virginia ratified the Constitution, followed by New York in July. On September 25, 1789, the first Congress of the United States adopted 12 amendments to the U.S. Constitution-the Bill of Rights-and sent them to the states for ratification. Ten of these amendments were ratified in 1791. In November 1789, North Carolina became the 12th state to ratify the U.S. Constitution. Finally, Rhode Island, which opposed federal control of currency, resisted ratifying the Constitution until the U.S. government threatened to sever commercial relations with the state. On May 29, 1790, Rhode Island voted by two votes to ratify the document, and the last of the original 13 colonies joined the United States. Today the U.S. Constitution is the oldest written constitution in operation in the world.

Continuing Education Program for Adjusters
Heckler & Frabizzio offers continuing education seminars for adjusters. All seminars are approved by the Delaware Department of Insurance and will include continuing education credits!
Topics include: Basic Workers’ Compensation overview (3 credits), Terminating Total Disability (1 credit), Adjuster Ethics (3 credits) as well as Delaware Investigations (2 credits).
For more information regarding our seminars, please contact Page Hyson Firm Administrator.