March 2020

Claimant proceeded to Board Hearing on the issue of initial compensability of a 1/12/18 injury and seeking payment of a then recommended left knee arthroscopic surgery. The Board found his claim compensable, and awarded the surgery, but did not rule on total and/or partial disability benefits, because Claimant did not request same. Claimant proceeded with surgery on 4/10/19, and filed a Petition seeking total disability and/or partial disability benefits from the 4/1/18 date of termination from employment and ongoing.
The Board found that Claimant did not meet his burden of proof on the Petition for total and/or partial disability, because he did not conduct a good faith job search following his termination from employment on 3/31/18. He was terminated for simply stopping showing up at work. He unilaterally stopped communicating with Employer. He did not respond to calls or letters sent by Employer. He abandoned his job. Claimant was capable of working with restrictions for nearly all of the ensuing two years with the exception of 4-6 weeks associated with his surgery yet testified to the Board that he made absolutely no job search during this time without any justifiable excuse. He did not even apply to any of the 9 positions that his own vocational rehabilitation specialist identified 4 months before the Board Hearing. The Board also noted that at 62 years old, claimant was at normal retirement age. Therefore, considering the totality of the circumstances, his withdraw from the workforce was due to personal reasons, rather than the work injury.
Should you have any questions regarding this Decision, please contact Greg Skolnik, James Betts, or any other attorney in our Workers’ Compensation Department.
Jeffrey Legg v. Shurline Construction, IAB Hrg. No. 1472667 (Mar. 2, 2020).
It turns out the grass isn’t always greener outside of the office. In fact, for Plaintiff, the proverbial grass was not grass at all. It was a hard-concrete parking lot. As Plaintiff navigated down the stairway from her employer, her ankle allegedly became caught in hole which caused her to fall and sustain various injuries.
Plaintiff brought a negligence claim against the Lessor of the property for failure to properly maintain and repair the premises. The litigation set-off a chain of who-dun-its resulting in the Lessor commencing a third-party action against the Lessee/Employer for contribution and indemnification.
Near the close of discovery, Lessee/Employer moved for summary judgment arguing that it, as Plaintiff’s employer, cannot be held liable as a joint tortfeasor. Further, it averred that no indemnification right arose under the respective Lease Agreement which required Lessor to provide certain maintenance and repair services, including “structural and non-structural repairs to the building, parking, parking areas, walks and driveways.”
In deciding this dispositive motion practice, the Delaware Superior Court separately evaluated the merits for the respective claims for contribution and indemnification. The Court concluded the contribution claim failed as it improperly imposed joint tort liability on Lessee/Employer, which paid Workers’ Compensation benefits to the Plaintiff and therefore cannot be held liable based on a contribution theory under Delaware law.
As for the indemnification claim, the focus turned to the respective language contained in the Lease Agreement. The Court found that under its plain language, Lessor bore responsibility for maintaining the stairwell as it was synonymous to the contractual term “walks,” meaning the ingress and egress areas of a building. Further, nothing in the record supported an inference that Lessee/Employer breached any duty to report the allegedly unsafe condition. As such, the Court determined that no disputed material facts remained, and Lessee/Employer was entitled to summary judgment as a matter of law.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Fisher v. Delaware River and Bay Authority v. New Castle County Chamber of Commerce, Incorporated, C.A. No. N18C-06-118 AML (March 9, 2020)
Plaintiff filed a charge of discrimination with the EEOC alleging discrimination based upon race. Specifically, plaintiff alleged that over his ten years of employment with Defendant, Plaintiff had been continually denied advancement and promotional opportunities while persons were promoted over him who did not possess his experience or qualifications. The EEOC issued a right to sue letter and the Plaintiff filed a complaint. In his complaint, Plaintiff alleged his employers created a hostile work environment and his operations manager retaliated against him, by accusing him of insubordination, after he filed charges.
Defendant filed a partial motion to dismiss Plaintiff’s complaint pursuant to Federal Civil Rule 12(b)(6) on the ground that : (1) the Plaintiff did not exhaust remedies for the hostile work environment and retaliation claims; and (2) the complaint fails to state hostile work environment and retaliation claims. To survive a motion to dismiss under 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.
A Plaintiff is required to first raise all Title VII claims with the EEOC prior to brining an action in federal court. Defendant argued that because Plaintiff did not raise retaliation or hostile work environment claims in his charge of discrimination, he is precluded from raising these claims in his civil action. To determine whether a plaintiff has met Title VII’s administrative requirement, a court must ask whether “there is a close nexus between the facts supporting the clams raised in the charges and those in the complaint.” A Plaintiff’s suit will not be barred for failure to exhaust administrative remedies if the “core grievances” in the Title VII suit filed and the earlier EEOC complaint are the same. As for the retaliation claim, the Third Circuit has adopted a case-by-case approach, under which the Court must examine carefully the prior administrative complaint and the additional claim to determine whether a second complaint need not have been filed.
Plaintiff’s administrative complaint focused entirely on the facts and circumstances surrounding failure to promote and race discrimination. Further, the facts in the charge of discrimination do not speak to retaliation or a hostile work environment.
The Court found that Plaintiff’s retaliation and hostile work environment claims were not fairly within the scope of the EEOC charge because there was no analogous language in Plaintiff’s charge which could give rise to a retaliation or hostile work environment claim. Therefore, Defendants’ partial motion to dismiss was granted.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Navarro v. Wal-Mart Assocs., 2020 U.S. Dist. LEXIS 27056 (D. Del. Feb. 18, 2020).
Mount Pleasant High School mock trial team coached by Gregory Skolnik, partner, was awarded 6th place overall in the 2020 mock trial competition. The team scored 3rd overall in points. We could not be more proud of all the hard work put forth by the kids. Additionally, James Betts, attorney, had two family members who also participate in the mock trial competition their team taking first place. Maddie James’s cousin won the best attorney in the championship round. Congratulations to all!
Nick Bittner’s cat Loki recently underwent two surgeries after being sick for several months. We are thrilled to announce that Loki has made a full recovery and is doing great. With any luck, he will soon be back to his majestic weight of twenty pounds.
Lysa Kaminski, secretary, recently got engaged to her best friend Glen. The proposal took place at their home, surrounded by family. From everyone at H&F, we wish you a happy future together. Congratulations, Lysa!