While our staff continue to work from home we are working together to continue to build strong relationships. Virtual happy hours, online games, and events have kept us together. This month we are creating a Firm cookbook. Collaboration and bonding is possible even when we cannot be physically together.
CONGRATULATIONS TO THE GRADUATES
Maria Paris Newill’s son, Charlie, graduated from MOT Charter HighSchool.
Charlean Baird’s son, Justin, graduated from Hodgson Vo-Tech.
WORKERS’ COMPENSATION LAW
Ch-ch-changes – Natural Change Over Time Breaks Causation for Surgery
Claimant was involved in a work-related injury to her low back in 2008, and for the next five years, she received low back treatment – including injections – paid for by the State of Delaware. She then stopped treating for her low back for a few years, until she returned for more injections and ultimately underwent a lumbar fusion surgery from L4-S1. Drs. Eskander and Cucuzzella both testified on behalf of the claimant that the return to treatment and the surgery were part of the progression of the low back injury from 2008. However, Drs. Rushton and Meyers testified on behalf of the State of Delaware that the 2008 accident had involved a temporary aggravation of her low back condition that then resolved. Citing to the progression of findings on the imaging studies, including entirely new findings of spondylolisthesis for the first time in 2015, Dr. Meyers and Dr. Rushton agreed these findings could not be attributable to a single event from nearly a decade earlier.
The Industrial Accident Board found claimant did not meet her burden to prove that the medical treatment since 2017, to include the 2019 lumbar fusion surgery, was causally related to the work accident. The Board accepted the testimony that the frequent imaging studies showed a natural progression of degenerative lumbar disease, which was wholly consistent with the claimant’s age and gender, and which the experts testified could occur without any trauma. One critical finding was the appearance of spondylolisthesis in 2015, seven years after the work accident; because that was a primary component of Dr. Eskander’s rationale for surgery, the Board agreed that it could not link a finding so distant in time back to the work accident.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
Linda Callahan Terry v. State of Delaware, IAB No. 1473826, April 29, 2020.
You’re the Boss
Plaintiff was hired by a third party to provide engineering services to Defendant in September 2016. Two years later, Plaintiff was terminated. Plaintiff filed suit alleging Defendant treated him less favorably than his non-American coworkers and terminated his employment on the basis of his race in violation of Title VII of the Civil Rights Act of 1964 and the Delaware Discrimination in Employment Act. Defendant moved to dismiss Plaintiff’s claims on the grounds that Defendant was not Plaintiff’s employer.
Title VII prohibits “employer discrimination on the basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, promotion and the like. In order to survive a motion to dismiss, Plaintiff must plausibly allege that Defendant was Plaintiff’s employer. In looking at whether an individual is an employee, the Court considers several Darden factors, including, but not limited to, skill, source of equipment/tools, location of work, duration of relationship between the parties, entity who had control over employment activities and method of payment.
The Court concluded that a jury could find that Defendant was Plaintiff’s employer because Defendant was obligated to submit a time record of hours and Defendant was obligated and authorized to pay Plaintiff’s overtime, supporting a finding that Defendant paid Plaintiff’s salary. The Court also found that Defendant directed the pace of Plaintiff’s work, evaluated his work product and verified number of hours Plaintiff worked.
Defendant argued that a provision in the employment agreement stated that the Plaintiff agreed that he/she would not be an employee of Defendant. However, the Court stated that even when such an agreement exists, courts primarily consider whether the “Darden factors in their totality” show that the individual was an employee.
Therefore, Defendant’s motion to dismiss was denied because the Plaintiff plausibly alleged that the Defendant may reasonably be found to have been Plaintiff’s employer under the Darden factors.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Bowman v. Barclays Bank of Del., 2020 U.S. Dist. LEXIS 91343 (D. Del. May 26, 2020)
LITIGATION CASE LAW
CHECKMATE: DEFENDANT AWARDED SUMMARY JUDGMENT OVER RELEASE DISPUTE
Following an automobile accident, the Plaintiff was contacted by the Defendant’s Insurer to discuss the accident, injuries, and medical treatment. In the course of the recorded call, the Plaintiff agreed to release all present and future claims against the Defendant in exchange for $1,000.00.
The Defendant’s Insurer sent the settlement check that contained the following language: “bodily injury coverage full and final settlement bodily injury claim and all liens known and unknown.” No separate release was included. The Plaintiff endorsed and cashed the check upon receipt. Thereafter, he filed suit against the Defendant.
The Defendant filed a motion for summary judgment arguing that the Plaintiff released all claims in conjunction with the settlement and further that the depositing of the settlement check created an accord and satisfaction. In response, the Plaintiff argued that the settlement agreement was invalid because the parties made a mutual mistake in that neither party knew the full extent of the injuries or the amount of future medical treatment required. Further, the Plaintiff alleged that he did not understand that accepting the settlement would prevent him from seeking any sort of future compensation and averred that such was evidence by the lack of any executed written release.
In granting the Defendant’s Motion for Summary Judgment, the Court found that all objective evidence pointed to a binding settlement agreement and that no reasonable jury could conclude that the Plaintiff did anything other than release his claims.
The Court was persuaded that the Defendant’s Insurer fully explained the release and that the Plaintiff orally confirmed that it was full, complete, and intended to bar all future claims against the Defendant. Further, the settlement check contained clear language indicating the scope and effect of the settlement. Finally, the Court held that even though the Plaintiff may have been unaware of the exact degree of his injuries, knowledge of the existence of an injury precludes a finding of mutual mistake.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Ricketts v. Myers, 2020 Del. Super. LEXIS 283 (June 9, 2020)