Heckler & Frabizzio staff attended a cyber security training on June 12, 2019. This important issue is more relevant than ever. Our team strives to stay ahead of new scams, remain educated and protect our data on behalf of our clients.
St. Anthony’s Italian Festival
Anthony Frabizzio and his family will be running the Nona Strada Cafe at the St. Anthony’s Italian Festival this year from June 9th to June 16th in Wilmington, DE. All proceeds benefit the St. Anthony’s grade school. – To learn more please visit this link.
WORKERS’ COMPENSATION REPORT
Three Strikes, You’re Out: Board Continues to Reject Dr. Zaslavsky’s Theories:
We recently reported on the matter of Rodriguez v. Amazon,where the Board rejected Dr. Zaslavsky’s novel theory that a “new study” supported his position that a right sided herniation could actually cause left sided radiculopathy. The Board questioned Dr. Zaslavsky’s credibility in that matter and noted that they felt as though Dr. Zaslavsky was “reaching” for an “innovative” theory when claimant’s symptoms were logically explained by a symptomatic shoulder problem. STRIKE ONE! Well, Dr. Zaslavsky (and the Board) are at it again in two new decisions!
In Machelle Rowell v. Amazon, IAB Hrg. No. 1462509 (Apr. 4, 2019), the Board rejected Dr. Zaslavsky’s novel theory that a high intensity zone seen on an MRI demonstrated recency and acuteness of an annular tear. The Board noted that Employer’s physician had pointed to several medical studies finding that this theory was not supported. Rather, the high intensity zone relates to the severity of the annular tear, not recency or acuteness. STRIKE TWO!
In Daniel Gemmill v. Keen Compressed Gas, IAB Hrg. No. 1466905 (May 31, 2019), the Board rejected Dr. Zaslavsky’s 3 month “delayed onset radiculopathy” theory of causation. Dr. Zaslavsky raised this argument because, during the three months immediately after the work accident, Claimant had 24 office visits for knee and hip issues due to the accident, with 12 different providers (including one of Dr. Zaslavsky’s own partners) without a single back or radicular type complaint being recorded. In fact, all back and lower extremity neurological testing was completely negative. Unfortunately for Dr. Zaslavsky, the Claimant testified at Hearing to the opposite. The Claimant testified he noticed back pain radiating to the leg immediately after the accident, did complain of back pain to every one of his providers during the ensuing three months, and all 12 providers failed to record these complaints in their medical records. The defense medical expert, Dr. Schwartz, also provided credible testimony that Claimant had an actively symptomatic lumbar radiculopathy for which he was taking medication immediately prior to the work accident. The Board was critical of Dr. Zaslavsky’s attempts to downplay Claimant’s prior treatment, as Dr. Zaslavsky was the one who had increased Claimant’s pain medication for lumbar radiculopathy on numerous occasions prior to the work accident. In light of this evidence, the Board commented that the Claimant and Dr. Zaslavsky could not get their stories straight, were not credible, and therefore, had not met their burden of proof. STRIKE THREE, but not out of the game!?
Should you have any questions concerning these Decisions, please contact John Ellis, Greg Skolnik, or any other attorney in our Workers’ Compensation Department.
EMPLOYMENT LAW UPDATE
Employee’s Case Survives
Under Retaliation Claim
Plaintiff, age 69, fell at home in May of 2016 and fractured her wrist. She was out of work on disability for three to four months. Upon her return, she was demoted and her salary was reduced from $65,000.00 to $35,000.00 annually. Her role was allegedly taken over by a significantly younger, non-disabled person. Plaintiff was terminated in October of 2016.
Plaintiff filed a complaint alleging discrimination based on age and disability. To establish a prima facie case of disability discrimination, a Plaintiff must demonstrate that she was disabled within the meaning of the Americans with Disabilities Act (“ADA”), that she was otherwise capable of performing the essential duties of her job, and that she suffered an adverse employment decision as the result of discrimination. To establish a prima facie case of age discrimination, a Plaintiff must demonstrate she is over 40, she is qualified for the position in question, and she suffered an adverse employment decision and was replaced by a significantly younger person.
The Court concluded that the Plaintiff failed to prove disability discrimination because she failed to establish that she was disabled, or that her employer perceived her as having a disability because she was cleared to return to work without restrictions, and Plaintiff did not claim an ongoing injury.
As for the age discrimination claim, the Court concluded that Plaintiff’s demotion and pay cut were sufficient to plead an adverse employment decision, but found that Plaintiff’s complaint failed to plead that Plaintiff was replaced by a sufficiently younger person to create an inference of age discrimination.
The Plaintiff also alleged retaliation under the Family and Medical Leave Act (“FMLA) in her complaint and the Court found that she adequately alleged causality between the FMLA and her demotion and pay cut.
Therefore, the Court granted Defendant’s motion to dismiss as to the claims of disability and age discrimination, but not to the claim of retaliation.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Forestieri v. Wendover, Inc., 2019 U.S. Dist. LEXIS 69372 (D. Del. Apr. 24, 2019)
LITIGATION CASE LAW UPDATE
Time Changes Everything
Except Automobile Insurance Policy
Exclusions For There Is No Looking Back
In early 2011, the Plaintiffs, a father and son duo, were happily covered under an automobile insurance policy issued by Defendant, Nationwide Insurance.
The harmony was short-lived. Following the son’s traffic citation for reckless driving, Nationwide notified the father that it would not renew the policy unless he agreed to exclude his son from it. Faced with this Sophie’s Choice of an insurance dilemma, the father agreed to exclude his son who thereafter obtained coverage from another insurance company.
In 2016, the son was involved in an automobile accident while operating his father’s vehicle. Nationwide declined coverage stating the son was not insured under the father’s policy. Thereafter, the Plaintiffs filed a declaratory judgment action contending that the original exclusion was no longer valid. In support of their position, the Plaintiffs argued that the Delaware statute imposes a look-back period on the efficacy of the exclusion. Moreover, that the Plaintiffs should have been advised of the son’s eligibility to be reinstated.
The Delaware Superior Court disagreed with the Plaintiffs. The Court found the Nationwide’s exclusion was based on 18 Del. C. § 3904(a)(7)(c), which does not contain a look-back period, and provides that the insurance company may exclude a driver from a policy if he or she “has an accident record, conviction record (criminal or traffic), physical, mental, or other condition which is such that his or her operation of an automobile might endanger the public safety.”
Moreover, the Court disagreed with the Plaintiffs’ interpretation of the look-back period in general. The Court found that the plain language of the statute was unambiguous in that the look-back period is calculated only from the point in time when the insurance company makes the exclusion decision. Nothing in the statute suggests that the look-back period somehow puts a time limit on the exclusion itself. The Defendant’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.
Villalobos-Gomez v. Nationwide Mut. Ins. Co., 2019 Del. Super. LEXIS 237 (May 14, 2019).
H&F FAMILY BRAGS
Maria Paris Newill’s eldest son, Nicholas, graduated on June 1, 2019 from MOT Charter High School and will be attending High Point University, High Point, North Carolina majoring in biology.
Patrick Rock is excited to share that his son Dominic graduated high school from St. Philomena’s Academy. Finishing in the top ten of his class (of six graduates) Dominic is looking forward to the next phase of his life that will probably include business. He is looking into Lineman School in Maine to learn how to service and maintain power lines. He thinks he will get a charge out of that. Congratulations, Dominic!
Steph Dzedzy’s daughter Adrianna joined lacrosse and played in the PAGLA (Philadelphia Area Girls Lacrosse Association) Tournament on June 2nd. Her team won 1st place in her bracket (8 teams) – she scored 1 goal and had multiple assists in the 4 games she played that day. She also received an award for most improved in catching.
After being sworn into the Pennsylvania Bar, Caixia Su, law clerk, had another great event happen in her life. She got engaged to Rich Kerr, on June 1st, 2019 after dating for two years. Her fiancé Rich, works in Delaware and lives in South Jersey. Congratulations, Caixia!
Welcome to the Family
William Rimmer and his wife Mary adopted a 4 month old Australian cattle dog and border collie mix named Mystic. She was rescued from a bad situation in Texas, welcome to the family, Mystic!
John Ellis’s USTA tennis team representing Delaware won their sectional championships in Lancaster, PA on June 1st. Next stop will be representing the state at nationals in Orlando, FL in November. Congratulations, John!
Escape the Cape Triathlon
Page Hyson competed in the 7th annual Escape the Cape Triathlon on June 2nd. Consisting of a 0.35 swim, 12 mile bike, 3.2 mile run, finishing the race in 1 hour 45 minutes. Page was most excited about beating her brother who competes regularly. Congratulations, Page!