March 2024


Diversity Scholarship

Heckler & Frabizzio is offering a $5,000 scholarship to a minority student who is currently looking to further their education in the legal field with a connection to Delaware. The rising cost of education continues to be a hardship many minorities struggle to overcome. Heckler & Frabizzio believes that by helping diverse legal professionals overcome those struggles, our world can become a brighter place for future generations in our community. We are seeking a candidate who demonstrates a commitment to diversity, the Delaware community, and a passion for the legal field. For more information, please contact Page Chase.

Celebrating 10 Years

The Randy J. Holland Delaware Workers’ Compensation Inn of Court in Wilmington celebrates its 10 year anniversary to honor the Inn’s decade worth of commitment to ethics, professionalism, civility and excellence. Gregory Skolnik, Partner, is the current vice president of the organization and will ascend to presidency in November 2024. Several other attorneys at H&F are also active members. Congratulations on 10 years!

Keeping Up with H&F

After Hours

The Heckler & Frabizzio team got together in March for the first of many after hours, happy hours. We all had fun spending time together!


Mind the Gap: Three Month Gap In Treatment Means Injury Not Work Related

Claimant filed a Petition alleging a 1/16/23 work accident, with a lumbar spine injury, ongoing total disability from 4/21/23, and various medical bills/expenses, including a 9/27/23 L4-S1 fusion surgery performed by Dr. Eskander.

The Board rejected claimant’s Petition. It was undisputed that an event occurred on 1/16/23. Claimant’s work vehicle was struck by the door of another vehicle. However, there was insufficient evidence to prove that any injury resulted. Claimant had a long history of low back problems associated with two prior motor vehicle accidents. He received treatment for many years. He had prior diagnostic testing showing extruded disc fragments at the L4-S1 levels. He was referred to surgery previously. He did not pursue that referral due to insurance reasons. The fact that he did not seek any treatment until 4/21/23 was problematic for his case. The dramatic symptoms on 4/21/23, specifically, being unable to walk, are the type which result from an acute injury sustained closer in time to 4/21/23. Especially in light of claimant’s prior treatment, it is not likely that he would delay treatment if he was in fact injured on 1/16/23. The Board found claimant’s excuse for why he did not report the alleged accident to not be credible. He said he was afraid of being fired or drug tested, but seeking medical treatment is not dependent on reporting an injury. The Board did not accept that claimant was in 8/10 pain for three consecutive months, impacting his ability to ambulate, but was able to work in a physically demanding job without seeking treatment. Claimant’s credibility was further questionable given multiple instances of failing to disclose his prior history. In the above context, the Board found the testimony of defense expert Dr. Schwartz to be more credible than that of Dr. Eskander.

Should you have any questions, please contact Greg Skolnik or any other attorney in our Workers’ Compensation Department.

McNeil v. Cherry Island LLC, IAB Hrg. No. 1536058 (Feb 19, 2024).


Superior Court Affirms Board’s Decision on Overpayment Determinations

On September 22, 2019, the Claimant filed for Delaware Unemployment Insurance benefits, which were granted to him. While the Claimant received traditional benefits, specific pandemic-era state and federal benefits were also activated and paid to the Claimant. These included Pandemic Emergency Unemployment Compensation, Federal Pandemic Unemployment Compensation, and Lost Wages Assistance. The pandemic-era benefits were contingent upon a claimant’s qualification to receive traditional unemployment insurance benefits.

On December 30, 2020, the Delaware Department of Labor issued a Determination notice disqualifying the Claimant from receipt of benefits because the Claimant did not show good cause for voluntarily leaving his job.

The Claimant did not appeal the disqualification notice, and it became final on January 9, 2021.

Since the Claimant was not deemed qualified for unemployment insurance benefits, an overpayment determination was generated to recover the traditional and pandemic-related benefits. The overpayment request totaled approximately $16,293.00 in benefits paid to the Claimant.

The Claimant filed a timely appeal of the overpayment determinations, and an Appeals Referee held a hearing on January 26, 2023. The Referee affirmed the determinations, and the Unemployment Insurance Appeals Board subsequently affirmed the Appeals Referee’s decision.

On July 21, 2023, the Claimant filed an appeal in the Delaware Superior Court, which affirmed the Board’s decision to uphold the overpayment determinations.

The Court stated that it could not consider any arguments about the initial disqualification determination because the Claimant did not appeal the disqualification, and “it is a final and non-appealable decision.”

Secondly, the Court upheld the Board’s decision regarding overpayments because it was supported by substantial evidence and free from legal error. The Court also clarified that overpayments can be recovered even if a claimant “‘was legally awarded payments of benefits at the time but on appeal was subsequently found not to be entitled to it.’”

If you have any questions regarding this decision, especially the unemployment claims appeals process, please get in touch with any attorney in our liability department.

Antonio Camacho v. Unemployment Insurance Appeal Board, C.A. No.: N23A-07-006 PAW (Del. Super. Ct. February 29, 2024)


Excusable Neglect Required to Set Aside a Default Judgment

Underlying this case is a homeowner’s dispute with a contractor over home renovation services. Discovery depositions were conducted on the eve of the trial, which gave way to settlement discussions. As is typical in settlement negotiations, there was some back-and-forth negotiating conducted on a relatively informal basis. Initial negotiations occurred in person between counsel for both parties, with plaintiff’s counsel communicating by phone with plaintiff. According to the record, defendant ultimately offered $30,000, payable in three installments, to which plaintiff agreed, and both attorneys shook hands.

Almost immediately after the handshake, defendant demanded inclusion of confidentiality and non-disparagement clauses. The clauses were reportedly requested because plaintiff had already made damaging statements about defendant’s business to potential client. Defense counsel stated he would prepare the settlement agreement with “usual” clauses, and plaintiff’s attorney represented the additional terms would likely not be problematic. The agreement was drafted and sent to plaintiff’s that evening, but plaintiff’s counsel emailed defense counsel later that night expressing concern that his client may not sign it as written. Emails the next morning between counsel discussed trial preparation and defense counsel emailed: “Let me know as soon as you have any updated re: settlement. I need to get my expert back moving on this is this is to go that route.”

In issue now is whether the parties reached a settlement agreement. Plaintiff contends that there was no meeting of the minds. Defendant contends that the parties had agreed to a contract as to settlement. The Court acknowledges that oral agreements are valid in Delaware. The question then is whether the parties had reached an agreement as to all material terms. “The proponent of the settlement has the burden to show by a preponderance of evidence the parties had an agreement.” While the primary and essential term is typically price, the Court found that Defendant’s addition of non-disparagement and confidentiality clauses was an essential term in light of the relationship between the parties. The Court also gave weight to counsels’ trail preparation actions the following morning, which the judge felt “unequivocally shows” that Defendants did not yet believe an agreement had been reached. The motion to enforce settlement was, therefore, denied.

Wanda Roberts v. Moffa Construction Company LLC, C.A. No. S21C-10-017 CAK (Del. Super. Ct., Feb. 6, 2024)

America’s Top Pet

Lysa Kaminski, legal Secretary, has entered her beloved Boxer “Gemma” into the running for America’s Top Pet. If you would like to vote for Gemma, please click here. Good luck, Gemma!