HECKLER & FRABIZZIO OFFERS NEW CLIENT SERVICES
Adjusters Continuing Education Program
Heckler & Frabizzio is proud to announce we have developed multiple seminars that we are offering to our clients at no charge. All seminar are approved by the Delaware Department of Insurance and will include continuing education credits!
Topics include: Basic Workers’ Compensation overview, Terminating Total Disability as well as Delaware Investigations. We have more seminars in progress – stay tuned! For more information regarding our seminars please contact Page Hyson Firm Administrator.
LITIGATION CASE LAW UPDATE
Twerking Gone Wrong!
Expert Testimony In Premise Liability Litigation
Just in time for spring break, this is a love story for the ages. Plaintiff and a friend visit a patio bar for a night of fun and dancing. As the night goes on, Plaintiff moves to a barstool located on the edge of the dance floor. Plaintiff does not, however, leave the action. While he is seated, a female patron continues to dance between his legs and lean back against his body. Unfortunately, it was not meant to be. Plaintiff, his companion, and the chair all fall to the ground.
Plaintiff commenced litigation against the establishment alleging that his fall was due to a defective bar stool. At the close of discovery, the Defendant filed a motion to exclude all evidence of defect due to Plaintiff’s failure to identify a liability expert or distinguish his own misuse. Arguing that the barstools design, construction, weight limitations, and intricacies and nuances regarding proper maintenance are not matters within the common knowledge of a layperson. Therefore, for a jury to conclude that the chair was defective would be solely predicated upon speculation, conjecture, or guesswork.
In granting Defendant’s motion, the Court reiterated that expert testimony is not required if the matter is one within the common knowledge of layperson. However, even though a layperson is familiar with the item, testimony regarding inspection, repair, or replacement is beyond the knowledge of a layperson. Therefore, we now know that expert testimony is necessary when a girl dances backwards into her seated boyfriend and the parties fall to the ground.
For more information on this matter or other legal questions, feel free to contact Michael W. Mitchell or any attorney in our Liability Department
Vincent v. Harrington Raceway, Inc., 2017 Del. Super. LEXIS *58 (Feb. 7, 2017).
THIS DAY IN LEGAL HISTORY
March 17, 1931
On March 17, 1931, Nevada State Senate voted to legalize all forms of gambling in the state providing the impetus for the growth of Las Vegas. They had however not yet come up with the unofficial motto of Las Vegas, “What happens in Vegas, stays in Vegas”.
WORKERS’ COMPENSATION REPORT
Board Troubled By Long Term Narcotic Use,
Just Says No, Orders Drug Weaning Treatment
On February 17, 2017, the Industrial Accident Board issued a Decision in Couden v State of Delaware, finding pain management treatment with Dr. Uthaman unreasonable and unnecessary, and ordered claimant to undergo outpatient narcotic drug weaning.
Claimant had sustained acknowledged injuries to her bilateral elbows and wrists, with failed bilateral carpal and cubital tunnel release surgeries. She was in pain management for over 10 years post-operatively, with narcotic pain medications prescribed on a monthly basis by Dr. Uthaman. Nonetheless, the Board found the testimony of the defense medical expert, Dr. Schwartz, to be “overwhelmingly” in favor of a finding that the treatment was both unreasonable and unnecessary.
The Board was “troubled” that Dr. Uthaman prescribed three times the recommended amount of morphine based pain medications, and noted that opiate pain medications should not be used to treat chronic, subjective, pain following carpal/cubital tunnel release surgeries. In addition, the Board stated that alternative therapies were apparently never truly considered by Dr. Uthaman, but should have been addressed. The Board further found that Dr. Uthaman’s practice of relying solely on claimant’s subjective complaints to document improvement from the medications was “concerning”, objective indicia of improvement should have been utilized, and that Dr. Uthaman was not aware of any of claimant’s out of work activities. The Board was perhaps most concerned with Dr. Uthaman’s “passive attempts to address” a “pattern” of inconsistent drug test results. The Board found it “disturbing” that Dr. Uthaman never truly discussed compliance issues with the claimant despite repeated failed drug tests for both absence of prescribed medications and the presence of illegal drugs. The Board concluded that these issues should have been addressed “immediately and decisively” by Dr. Uthaman.
If you have any questions or concerns regarding this Decision, please contact Anthony Frabizzio, Greg Skolnik, or any other of our workers’ compensation attorneys.
Couden v. State of Delaware, IAB Hrg. No. 1319773 (Feb. 17, 2017)
EMPLOYMENT LAW UPDATE
“Heeling” Your Bets:
Lack Of Policy Acknowledgement Leads To Unemployment Benefits Award
Under 19 Del. C. § 3301, the State of Delaware created the unemployment fund to aid in the burden that can be created by involuntary unemployment. Pursuant to the unemployment statute, the discharged employee may apply for unemployment benefits and the employer then has 7 days to contest payment and must indicate the reason for separation from employment and raise any “potentially disqualifying” issues that would result in the Department of Labor denying unemployment benefits. Following referee and appeal board decision, either party may appeal the decision the Superior Court. The employer’s burden on appeal is to show by preponderance of the evidence that they had ” just cause” to terminate the employee.
In Tesla v. Unemployment Insurance Appeal Board, the employer Tesla contested Eugenia Walls’ (the “claimant”) entitlement to unemployment benefits, stating that she was fired for “just cause” when she engaged in several instances of “gross misconduct”. Among the misconduct was that claimant was found wearing high heeled shoes in a manufacturing area. In affirming claimant’s right to benefits, the Court enumerated the test the Board should use when determining whether “just cause” for termination existed. First, the Board must determine if a policy did exist, “and if so, what conduct was prohibited.” If a policy did exist, the Board must then determine if the employee was advised of the policy and how the employee was then made aware of same.
In affirming the Board’s finding for the claimant, the Court found that the Board did apply the proper test to determine if “just cause” existed. Since the employer had waived other “intolerable offenses” prior to her termination, the Board based its decision only the last offense – Claimant wearing her high heeled shoes in a restricted area. While a policy did in fact exist, there was no proof the claimant was ever made aware of the policy. Evidence of this could have included a copy of either the progressive discipline policy and/or the claimant’s signed acknowledgement of the policy. Therefore, the Employer failed to meet the second prong of the “just cause” test.
This case stands as reminder of the importance of Employer Policy Handbook review and acknowledgement of receipt since without proof of acknowledgement, the Court may give an employer’s appeal of the granting of unemployment benefits a swift “heel” out the door.
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
Tesla Industries, Inc. v. Unemployment Ins. Appeal Bd., C.A. No. N14A-03-005-CEB (Del. Supr. Jan. 5, 2017).
St. Patrick’s Day Edition
This Day In History:
March 17th, 1762
On March 17, 1762, the first parade honoring the Catholic feast day of St. Patrick, the patron saint of Ireland, was held in New York City by Irish soldiers serving in the British army. With the dramatic increase of Irish immigrants to the United States in the mid-19th century, the March 17th celebration became widespread. Today, across the United States, millions of Americans of Irish ancestry celebrate their cultural identity and history by enjoying St. Patrick’s Day parades and engaging in general revelry.
St. Patrick, who was born in the late 4th century, born in Britain to a Christian family of Roman citizenship. He was taken prisoner at the age of 16 by a group of Irish raiders who attacked his family’s estate. They transported him to Ireland, and he spent six years in captivity before escaping back to Britain. St. Patrick joined the Catholic Church and studied for 15 years before being consecrated as the church’s second missionary to Ireland in 432.
H&F Welcomes Renee J. Leverette
Renée J. Leverette, is an associate in the firm’s workers’ compensation department. She was admitted to practice law in Delaware in 2014. She graduated from the University of Delaware with a B.A. in Philosophy in 2008, and obtained her J.D. from Temple University Beasley School of Law in 2014. At Temple University Beasley School of Law she was a Research Assistant to Professor Edward Ohlbaum, then Director of Trial Advocacy Programs. Renée was involved in several internships, including with the NAACP Social Justice Project, The Tucker Law Group, and the Chester County District Attorney’s Office. Renée was a member of the Temple American Inn of Court and was voted Evening Class Speaker for the 2014 Graduation Ceremony.
Renée enjoys spending time with her family above all else. She is also a voracious reader, enjoys mentoring, running 5ks, socializing with friends, and football.
Maria Paris Newill Co-Managing Partner and head of the Workers’ Compensation department has received an accolade for her continued leadership in the legal community. Ms. Newill was published in the March edition of The American Lawyer magazine specifically in the Women Leaders in The Law section. Congratulations Maria, keep up the great work!