March 2016

Board Finds Claimant Not Entitled to Disability Benefits Due to Lack of Sufficient Evidence

A claimant petitioned the Industrial Accident Board for compensation and benefits for an alleged work accident. The Board issued a decision on February 5, 2016 denying the Petition because the claimant could not prove he was injured. The claimant testified that he was working on a highway construction crew on the I-495 Bridge, and the bridge was barricaded so that it should have been completely free of traffic. Nonetheless, he testified that a rogue driver went by the area where he and other members of the work crew were working, and that the car caught his lanyard (safety device to prevent him from falling off of the bridge while working) and dragged him along the asphalt, causing significant injuries.

In addition to the testimony of the claimant, the Board also heard from a Delaware State Police Corporal who investigated the incident, and interviewed several witnesses, and ultimately brought criminal charges against the driver of the motor vehicle. The Police Corporal testified that the driver had a long criminal history, and was charged with eleven different counts stemming from the incident on the bridge. Ultimately, he pled guilty to two of the more severe counts, and did involve an admission of assault against the claimant. It was also undisputed that the claimant received significant PIP benefits paid by the Carrier for the driver of the assaulting vehicle. Counsel for the employer, John Morgan, Esquire, presented the testimony of the actual eyewitnesses to the event, including the claimant’s three co-workers. Although the testimony of these individuals varied somewhat, they did provide fairly consistent accounts that the rogue car was near the work crew and the claimant, but that there was no physical contact to any of the workers, and the claimant was not actually dragged anywhere.

In a stunning 44-page Decision, the Board thanked the Police Corporal for his testimony and noted that, “simply because the driver accepted a plea deal does not mean that the charges were proven beyond a reasonable doubt. There was no sworn testimony before a jury resulting in conviction, and the plea deal was not enough to prove the allegations. The first time that there has been any sworn testimony regarding the circumstances surrounding the July 6, 2014 incident was at the Hearing. In the workers’ compensation case, Claimant must prove by a preponderance of the evidence that the work accident occurred in the way in which he describes it and that he was injured thereby. Claimant has failed to do so.” Accordingly, the Board declined to award the claimant any benefits whatsoever, including payment of medical bills for treatment alleged to be causally related to the work accident, and including a period of total disability of nearly one year.

If you have any questions concerning this case, feel free to contact defense counsel John W. Morgan, who is a Firm Partner and counsel for the Insurance Carrier in:


Shannon E. Selby v. Talley Brothers, Inc., IAB Hrg. No. 1416856 (Feb. 5, 2016).

Judge Finds Plaintiff Not Entitled to Uninsured Motorist Coverage

Coverage denial is appropriate when neither the plaintiff nor any member of the family was a named insured under the policy issued to a company owned by the claimant’s father.

In the case of Skinner v. Donegal Mutual Insurance Company, Judge Cooch issued an opinion letter explaining that the name of the insured under the policy was Maintenance Tech, LLC. There was a commercial policy issued to Maintenance Tech, LLC that did have a UIM policy. The only owner of Maintenance Tech, LLC was the claimant’s father. The claimant argued that because the policy was personal to the driver of a covered vehicle, that denial of coverage was tantamount to “other motor vehicle exclusion” that the Delaware Supreme Court has held invalid. Superior Court Judge Richard R. Cooch disagreed and explained that there is no question that the named insured in this particular case was Maintenance Tech, LLC and since the plaintiff is not a named insured, he cannot recover under the policy. The Court wrote “[Donegal’s] policy does not thus extend here to [claimant’s] personal use of another’s privately – insured motorcycle.”

Judge Cooch also distinguished further that the other motor vehicle exclusion language found in prior Court cases and Donegal’s insurance language was the same. Therefore, the Court determined it was proper for Donegal Insurance Company to deny UIM coverage.

If you have any questions concerning a UIM coverage analysis, please feel free to talk to one of the attorneys in the Liability Department.

Court Finds Claimant Justly Discharged and Not Entitled to Unemployment Insurance Benefits

The Unemployment Insurance Appeal Board’s decision finding that claimant was disqualified from receiving unemployment insurance benefits because she was discharged from her employment for just cause was supported by substantial evidence and free from legal error.

Case was fired from her position at Bayhealth Medical Center Inc. for using profanity towards a co-worker in an oral altercation. She did not dispute the fact that she used profanity towards a co-worker, but she argued that her actions did not provide an adequate basis for her discharge. However, Case indicated that she was aware of Bayhealth’s policy classifying “use of profane language directed at any internal or external customer” including a co-worker as a Category 5 offense warranting termination upon the first offense. Thus, a claims deputy found that Case was discharged for just cause and was disqualified from receiving unemployment benefits.

Case appealed, and following a hearing, an appeals referee reversed the claims deputy’s decision, finding “insufficient evidence of willful or wanton misconduct on the part of the Claimant” to support a discharge for just cause. Bayhealth then appealed to the board, which reversed the appeals referee’s decision. The board found that Bayhealth had a policy regarding profanity, that Case was aware of the policy and that she violated it by cursing at her co-worker during the verbal altercation. Accordingly, the board found that Case was discharged for just cause and disqualified from receiving unemployment benefits.

On appeal, the Court found that the board’s decision was free from legal error and supported by substantial evidence. Whether Bayhealth met its burden of proof under the preponderance standard was a question of law to which the Court applied a de novo review. Violation of a reasonable company rule may constitute just cause for discharge if an employee was aware of the policy and the possible subsequent termination. Here, Bayhealth’s existing policy prohibited the use of profanity towards coworkers, Case confirmed that she was aware of the policy, and Case admitted that she violated the policy by cursing at a co-worker during an altercation. Accordingly, the board properly found that Bayhealth discharged Case for just cause and that she was disqualified from receiving unemployment insurance benefits.


Case v. Bayhealth Medical Center. Inc., DeFAX Case No. D67097 (Del. Super. Jan. 19, 2016) Young, J. (7 pages).

Congratulations to Heckler & Frabizzio’s Outstanding Receptionist

We are pleased to announce that Nancy Osborn will be the recipient of the Myrna L. Rubenstein Professional Support Recognition Award in the gold ballroom of the DuPont Hotel during The DSBA Law Day lunch on May 17, 2016.

Heckler & Frabizzio would like to congratulate Nancy on her well-deserved award! Nancy is one of the most acknowledged employees of Heckler & Frabizzio. Thank you Nancy for your years of professional support and service!!!!

Heckler & Frabizzio attorneys coach Delaware high school mock trial competition

Mike Mitchell (Associate, Liability Department) and Greg Skolnik (Associate, Workers’ Compensation Department) coached the Mount Pleasant High School Mock Trial Team in the 25th Annual Delaware High School Mock Trial Competition, held on February 26-27th at the New Castle County Courthouse in Wilmington, Delaware.

Mr. Mitchell and Mr. Skolnik assisted the students in presenting four full criminal trials from both the prosecution and defense sides. The case involved a criminal trial of a police officer charged with murder of an alleged criminal suspect. The trials were officiated by numerous Delaware Judges, including past Superior Court Judge Joseph Slights. Four members of the Mount Pleasant Team won awards – two students won “Best Attorney” in an individual round, and another two students won “Best Witness” for their performances in particular rounds.

Mr. Mitchell explained that it was gratifying to see how well the students performed, and what they were able to accomplish while preparing for the Mock Trials. Mr. Skolnik said, “The kids were very easy to coach, and Mike and I both enjoyed helping them develop their oral arguments and their direct and cross-examination strategies. They were a pleasure to coach.”

Heckler & Frabizzio congratulates Mount Pleasant, as well as Mike and Greg for a job well done.


Labor and Employment Law Update 2016

On Wednesday, March 23, 2016 from 9:00 AM – 3:00 PM, the Labor and Employment Law section of the Delaware State Bar Association will be sponsoring 5.0 hours of CLE credit, including .8 hour of Enhanced Ethics for Delaware and Pennsylvania attorneys. This will take place live in New Castle County at the Delaware State Bar Association on 405 N. King St. Wilmington, DE 19801. Topics include: Affordable Care Act Compliance Update, HIPPA Concerns for Contractors in the Workplace, Spoliation/Litigation Holds, etc. Lunch will be included!