March 2018

WORKERS’ COMPENSATION REPORT
Three Heckler & Frabizzio Hearings
Three “Resolved” Work Injury Findings
In Susan Natrin v. Amazon.com, Inc., IAB Hrg. No. 1441251 (June 9, 2017), claimant sustained an accepted 2016 low back sprain injury, and was placed on an open total disability agreement. Employer filed a Termination Petition alleging that claimant’s work-related condition resolved or returned to baseline. The Board granted the Petition, relying on Dr. Kohanovitz’s testimony that claimant’s then current issues were more likely related to chronic low back pain which preceded the work accident. The Board noted that Dr. Kohanovitz had a much better knowledge of the records than claimant’s own treating physician, Dr. Sugarman. Dr. Sugarman did not know that claimant was treating with a pain management specialist in the weeks before the work accident, that she was prescribed narcotic medications, and that injections and a spinal cord stimulator were suggested. These records directly contradicted claimant’s testimony to the Board that her back condition before the 2017 accident was asymptomatic and she had not been treating or taking any medication. Pre- and post-accident imaging of the lumbar spine was consistent and showed no change or new abnormality. Finally, Dr. Kohanovitz provided credible testimony that even claimant’s own medical records showed no appreciable change in her objective findings post-accident as compared to pre-accident.
In James E. McDaniel v. Kings Creek Country Club, IAB Hrg. No. 1449067 (Oct. 23, 2017), the claimant filed an initial Petition alleging a 2015 left foot and ankle injury. Employer acknowledged a closed period of medical treatment in the weeks following the accident, but denied treatment thereafter arguing that the work-related injury resolved. The Board accepted Employer’s position, noting that only foot/ankle treatment in 2015 was from a walk-in clinic, with very minor findings. Claimant did not treat for 9 months thereafter, which was “highly suggestive that there was no problem with the ankle” during that timeframe. The claimant saw his family doctor within this timeframe, and specifically denied joint pain or swelling, and indicated he had no difficulty walking. Claimant presented two explanations for the delay in treatment. First, he did not see an orthopedist because he could not get the workers’ compensation carrier to select a doctor. The Board noted that even if Claimant was unaware that statutorily he could select his own doctor, it was “incredible” that he would not at least seek treatment with his family doctor. Claimant next argued that he did not seek care earlier because his work duties during the nine-month period were less physically demanding. The Board rejected this explanation as well, finding it to be inconsistent with his arguments that he was trying to be seen by an orthopedist during this time.
In Raushann Austin v. State, IAB Hrg. No. 1433041 (Dec. 27, 2017), the claimant alleged 10% permanency to the left lower extremity due to a fall down stairs at work, based on Dr. Bandera’s rating. The Board rejected Dr. Bandera’s opinions in favor of employer’s medical expert, Dr. Matz, and held that the work-related injuries “resolved” within 3 months post-accident. In support of its finding, the Board noted that claimant had delayed reporting of her alleged ankle injury for several months. She also deferred recommended treatment and diagnostic imaging for the knee and ankle for years. Claimant alleged that the reason for the delay in reporting/lack of treatment was childcare issues associated with newborn twins. However, the Board noted that during this time, she was involved in an intervening motor vehicle accident with a back injury and left leg radicular complaints. She treated extensively for the intervening accident and her childcare issues did not seem to interfere with same. The Board also accepted Dr. Matz’s testimony that Dr. Bandera had “misapplied” the AMA Guides on rating permanency as Dr. Bandera placed claimant into tables that had no correlation with her actual diagnoses, and did not provide competent testimony concerning loss of use. At most, the claimant sustained contusion injuries, and Dr. Bandera’s permanency ratings were higher than Guideline recommendations for ankle fractures and partial meniscal tears.
Should you have any questions regarding these Decisions, please contact John J. Ellis, Bill D. Rimmer, Greg P. Skolnik, or any other attorney in our Workers’ Compensation Department.

Heckler and Frabizzio Attorneys Gregory P. Skolnik and Michael W. Mitchell Coach Mount Pleasant High School To Its Best Ever finish In 2018 Delaware High School Mock Trial Competition 
The Twenty-Seventh Annual Delaware High School Mock Trial Competition took place on February 23 and 24, 2018 at the New Castle County Courthouse. The Competition included over twenty-five schools and community programs located all across the State of Delaware. Over 250 members of the judiciary and Delaware Bar acted as legal advisers to the teams, and as judges and jurors.
In their third year as coaches, Heckler & Frabizzio attorneys Gregory P. Skolnik and Michael W. Mitchell led Mount Pleasant High School, a public school located in northern Delaware, to a third place finish (its best ever!). The Team won six individual awards, including three for Best Attorney in a particular round. Following the results, Mr. Mitchell reflected on the students’ efforts and candidly said, “It’s for the kids.”
The Team would like to recognize the volunteer efforts of Superior Court Judge Vivian L. Medinilla, Alice Eakin, Mary Rimmer, Holly Smith, and Heckler and Frabizzio attorneys Anthony M. Frabizzio and Nicholas E. Bittner.
Congratulations Mount Pleasant!

Congratulations to Paralegal John Jackson
Heckler & Frabizzio paralegal John Jackson was recently published in Crimes of the Centuries a three part encyclopedia. The article is about the infamous John Du Pont murder of David Schultz. John Jackson analyzes Du Pont’s diminished mental competency defense. You can find Crime of the Centuries on Amazon or other book sellers. Congratulations, John Jackson!

EMPLOYMENT CASE LAW UPDATE
State Employee Graduate Assistant 
Class Dismissed:
 No Employment Due Process Property Rights
Under the Fourteenth Amendment of the United States Constitution, individuals are entitled to Due Process of the law where a deprivation of “life, liberty, or property” could occur. Generally, an individual’s employment has been categorized by the courts as a property interest. Under 42 U.S.C. §1983, an individual may bring suit against a state actor where there is an “alleged failure to provide procedural due process” in regard to an employment/ property dispute. In order to bring suit, however, the plaintiff must show that under state law, “a property interest in state employment [did] exist . . . [and that] the plaintiff had more than an abstract . . . unilateral expectation in any employment.” In Delaware, there is a strong presumption that all state employees are “at-will” employees “unless other-wise expressly stated.” As such, unless evidence is provided otherwise, there is no entitlement to continued employment such that Due Process must be provided prior to termination.
In Anderson v. Delaware State University, Trey Anderson (“Plaintiff”) had been extended an offer of enrollment in Delaware State University’s (“Defendants”) Masters in Sports Administration, which included an offer for financial aid and employment as a Graduate Assistant with Defendant’s Academic Services. The intial offer was for the fall, spring and two summer semesters of the following academic year. Plaintiff did enroll in the program and began working as a Graduate Assistant in the fall of 2015. However, in the spring of 2016, Plaintiff was notified that Defendants would not provide tuition or aid for textbook purchasing for the 2016 summer semesters and further, that his employment as a Graduate Assistant would be terminated. In June 2016, Plaintiff did file suit, alleging violation of 42 U.S.C. §1983 when both financial aid and claimant’s employment with Defendant were terminated without Due Process.
In granting Defendant’s Motion to Dismiss, and in complying with Delaware employment law, the District Court found that Plaintiff had not provided any facts that provided Plaintiff could only be terminated for “cause” and thus, had not overcome the presumption that he was an “at-will” employee. The Court further stated that just because the initial agreement had set a time-frame for which the employment was to take place, such evidence “still [fell] short of showing the parties shared any explicit expection regarding Plaintiff’s employment and the conditions under which he could be terminated.” Therefore, the Court found that any employment with Defendant fails to be a “property interest” so as to be protected by the Due Process Clause.
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
Anderson v. Del. State Univ., 2017 U.S. Dist. LEXIS 151259 (D. Del. Sept. 18, 2017).

LITIGATION CASE LAW UPDATE
University Owed No Duty For Off-Campus Activity
On October 18, 2013, a University of Delaware student was fatally struck by a pickup truck while walking home from an off-campus party. It was not disputed that the decedent was impaired due to acute alcohol intoxication. The decedent’s estate brought a wrongful death suit against the University of Delaware, the sorority where the decedent had been drinking before the accident occurred, along with two other establishments. All Defendant’s filed Motions for Summary Judgment.
The estate of the deceased alleged the defendants owed a duty to the decedent and that they breached that duty and the breach was the proximate cause of the decedent’s death. The estate asserted the sorority breached its duty based on the business premises liability and common law tort liability, and that the University failed to implement reasonable safety procedures for off campus events.
The Court found that none of the defendants owed a duty to the deceased. First, the Court held the business premises theory of liability only applies when a person is physically on the premises of the entity owing the duty. Here, the deceased was not fatally injured on property owned by any of the defendants. Second, the Court noted that Delaware has not recognized a cause of action based on dram shop or social host liability, reviewing the Delaware legal standard that it is the consumption of alcohol, and not the sale or furnishing of alcohol, which is considered the proximate cause of any injuries sustained or caused by the intoxicated person. Finally, the Court concluded the University had no duty to students who engaged in off-campus drinking activities. Therefore, the Court granted each Defendant’s Motion for Summary Judgment.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.

 THIS DAY IN LEGAL HISTORY
March 15, 44BC
Ides of March
Born of a patrician family, Julius Caesar rose through the political and military ranks of Republican Rome to become Consul in 59BC, establishing control of Rome by forming the so-called First Triumvirate with Pompey and Crassus. Appointed Governor of 4 legions he conquered Gaul greatly extending Rome’s empire. In 49BC Caesar, refusing to give up his command, crossed the Rubicon River and ignited civil war. Appointed Dictator of Rome in 48BC he defeated his opponents before instigating a series of reforms, including the Roman calendar. He was assassinated in Rome on the Ides of March, or March 15, 44 BC, by a group of conspirators including Brutus. His death led directly to the end of the Roman Republic and the establishment of the Roman Empire under Caesar’s heir Augustus. “Beware the ides of March” is famously from the Shakespeare play “Julius Caesar” as the ominous warning given by a soothsayer to the soon-to-be ex-Roman emperor as he made his way to the Capitol that fateful day in 44 BC. Shakespeare’s words branded the phrase with a dark and gloomy connotation synonymous with a cursed day that will forever make people uncomfortable. But the Ides of March actually has a non-threatening origin story. Kalends, Nones and Ides were ancient markers used to reference dates in relation to lunar phases. Ides simply referred to the first full moon of a given month, which usually fell between the 13th and 15th. In fact, the Ides of March once signified the new year, which meant celebrations and rejoicing.

 ANNOUNCEMENTS
Congratulations to Maria Paris Newill and William D. Rimmer
Partners Maria Paris Newill and William D. Rimmer received the award for Lawyers of Distinction in 2018. The American Bar Association published the Lawyers of Distinction in March’s issue listing Heckler & Frabizzio as the only Firm in Delaware with Attorney’s who have received this award.
 
Adjusters Continuing Education Program
Heckler & Frabizzio is proud to continue to offer seminars 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 (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.