March 2019
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ANNOUNCEMENTS
College of Workers’ Compensation Lawyers
Partner Maria Paris Newill was inducted into the College of Workers’ Compensation Lawyers on Saturday March 16th in Coral Gables, Florida. The CWCL was established to honor those attorneys who have distinguished themselves in their practice in the field of workers’ compensation. Individuals are nominated for the outstanding traits they have developed in their practice of twenty years, or longer, representing plaintiffs, defendants, serving as judges, or acting for the benefit of all in education, overseeing agencies and developing legislation. Congratulations Maria!
Partner John Gilbert Retirement
Congratulations to partner John Gilbert on his retirement from the practice of law. The Firm is happy for John and his wife Karen who will be leaving Delaware and relocating to Florida. After 32 years of legal practice, John is excited to slow down and move onto the next chapter of his life. We wish John and Karen the best in their retirement and we look forward to hearing stories of lobster, shrimp and hurricanes! We’ll miss you John!
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RECENT WIN
WORKERS’ COMPENSATION REPORT
If There’s No Change in the MRI,
Then You Must Deny
Claimant sustained an acknowledged injury at the L5-S1 level related to a 3/3/17 acknowledged work accident. An MRI shortly after the work accident showed acute injury at L5-S1 and nothing significant at L4-L5. Claimant underwent a compensable L5-S1 microdiscectomy performed by Dr. Sugarman on 9/18/17. Following surgery, claimant switched to Dr. Kalamchi and underwent a second MRI in November 2017, which reportedly showed an annular tear at L4-L5. Dr. Kalamchi then performed an L5-S1 fusion on 12/6/17, which was also compensable. A repeat MRI in March 2018 showed the fusion to be stable and showed no changes at the L4-L5 level when compared to the prior MRI.
At Dr. Kalamchi’s direction, claimant underwent a discogram on 5/2/18, which was positive at L4-L5. Dr. Kalamchi then chose to perform an operation at L4-L5 and a touch up at L5-S1, even though the fusion and instrumentation were solid and healing well with no signs of problems. When asked to give his opinion on the causation of the L4-L5 problems, Dr. Kalamchi testified that the degenerative findings were caused by adjacent level disease, beginning after the 9/18/17 surgery. The problem with this opinion, as explained by the Employer’s medical expert, Dr. Smith, is that adjacent level disease follows a fusion – which did not occur in the first surgery – and takes at least a year to develop. Further, there were no changes in the MRI findings at L4-L5 when comparing before and after the L5-S1 fusion actually did occur.
 The Board rejected Dr. Kalamchi’s testimony and denied the third surgery, noting that “adjacent segment disease does not make sense in this case.” The Board agreed that the findings of degeneration shown on the MRI studies should only have appeared after the fusion surgery, and not before it. Given the timing and sequence of the findings, the Board found that the L4-L5 surgery was not compensable, while also rejecting the L5-S1 component. Even though L5-S1 was the acknowledged level of injury, there was no need for a revision surgery because the fusion was healing well. Therefore, the entire surgery was denied.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
Michele Foraker v. Saf-Gard Safety Shoe Company, IAB Hrg. No. 1457148 (Jan. 10, 2019).
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EMPLOYMENT LAW UPDATE
Unemployment Benefits Denied . . . “Just Cause”
 Plaintiff was terminated from her employer for conduct the employer deemed fraudulent and in violation of the employer’s polices. The Defendant maintained a policy prohibiting the sharing of passwords to access another employee’s e-mail. Further, the policy states that employees engaging in inappropriate use of electronic facilities will be subjected to disciplinary action. Defendant also had a rewards program, whereby employees could be awarded recognition points by coworkers for outstanding service. In turn, the employees could use these points on items such as gift cards or they could be converted to a monetary dollar amount. Defendant discovered that Plaintiff was signing into the rewards program using other employees’ usernames and passwords and had been awarding herself recognition points to be redeemed under her account. It was discovered that Plaintiff had accumulated points that equated to $3,870.00. Plaintiff alleged that she had received permission to access her co-workers’ accounts.The Plaintiff filed a claim for unemployment benefits. The Department of Labor issued a Notice of Determination letter and found the Plaintiff disqualified from receipt of unemployment benefits, holding her actions were “willful or wanton.” The Plaintiff appealed the determination to the Appeals Referee and after a hearing, the Appeals Referee found the Plaintiff was discharged for just cause. The Plaintiff then filed an appeal to the Unemployment Insurance Appeal Board, who upheld the Appeal Referee’s Decision after a hearing. The Plaintiff then appealed her case to the Superior Court.
An appeal from an administrative board’s final order to the Superior Court is confined to a determination of whether the board’s decision is supported by substantial evidence and is free from legal error. A Claimant is not eligible for benefits when the Claimant was terminated from employment for “just cause.” “Just Cause” is defined as “willful or wanton act in violation of either the employer’s interest, or of the employee’s duties, or of the employee’s standard of conduct.” The two-step analysis in evaluating “just cause,” is (1) whether a policy existed, and if so, what conduct was prohibited, and (2) whether the employee was apprised of the policy, and if so, how the employee was made aware.
Since the employer had a policy prohibiting the conduct the Plaintiff engaged in, the plaintiff was aware of the policy and Plaintiff’s offense warranted immediate discharge under the employer’s policy, the Court found “just cause” was met.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Harris v. Bayhealth Med. Ctr., Inc., 2019 Del. Super. LEXIS 97 (Del. Super. Ct. February 21, 2019.
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LITIGATION CASE LAW UPDATE
What did Dela Wear to Court? Her New Jersey registered vehicle with Delaware PIP coverage.
The Superior Court granted Defendant’s Motion to Preclude Medical Bills from being presented as part of Plaintiffs’ claim for special damages when such bills had already been paid by an out-of-state rental company’s self-insurance.
Plaintiffs in this case were passengers in an Enterprise rental car which had been rented in Delaware, but which was registered in New Jersey. Plaintiffs contended that the Delaware PIP exclusion found at 21 Del. C. § 2118(h) was not applicable because the involved vehicle was not registered in Delaware. Thus, Plaintiffs sought to introduce the medical bills paid under the rental company’s self-insurance as evidence of special damages.
Defendant motioned to exclude those medical bills under 21 Del. C. § 2118(h), reasoning that the rental company was obligated to provided Plaintiffs with Delaware PIP coverage under 21 Del. C. § 2904, which requires self-insured entities “to pay” and “perform all obligations imposed by §2118.”
The Superior Court considered the 1992 Delaware Supreme Court case of Read v. Hoffecker, 616 A.2d 835, which addressed whether a Plaintiff was “PIP eligible” as defined under the Delaware PIP statute. Because 21 Del. C. §2904 extends the PIP requirements of 21 Del. C. § 2118 to all Delaware self-insured vehicles, the Court determined that the class of persons to whom the statutorily required no fault insurance coverage extends includes anyone injured while occupying a self-insured vehicle.
The Court agreed that Plaintiffs were injured while occupying a self-insured vehicle and they were, in fact, paid PIP benefits that conformed to the requirements of 21 Del. C. § 2118 pursuant to the language of §2904. Defendant’s Motion to Preclude Medical Bills was granted and Plaintiffs are precluded from introducing any medical bills paid pursuant to the PIP requirements as special damages.
Should you have any questions regarding this decision please contact Partner Amy Taylor or any attorney in our Liability Department.
Shaniah Jones Gladney, minor, Shaneal Jones, a minor, by and through their parent and natural guardian, Neal Gladney v. Sherell Jones, Enterprise Leasing Company of Philadelphia, LLC and Sergio Escalante; C.A. No. N18C-04-297 CLS;
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