May 2019

Welcome to the Bar
Law Clerk Caixia Su has passed the Pennsylvania bar exam and was sworn in by Partner Maria Paris Newill this month. Congratulations Caixia!!
Workers’ Compensation Seminar
Maria Paris Newill, Esquire and John Ellis, Esquire were speakers at the Delaware State Bar Association Workers’ Compensation Seminar on May 14th at the Chase Center on the Riverfront in Wilmington, Delaware. Ms. Newill spoke on Medicare set asides and Center for Medicare service issues while Mr. Ellis presented on Workers’ Compensation case law update. For more information please visit the DSBA website or contact the Firm.
St. Anthony’s Italian Festival
    Anthony Frabizzio and his family will be running the Nona Strada Cafe at the St. Anthony’s Italian Festival this year from June 9 to June 16 in Wilmington, DE. All proceeds benefit the St. Anthony’s grade school. – To learn more please visit this link.

Superior Court Closes Treatment Floodgate
Claimant sustained a work-related fall and went to the emergency room for hip x-rays and treatment for a facial laceration. As the facial laceration was being sutured, the Claimant began showing signs of a mini-stroke, which led the hospital staff to administer medications to lower the Claimant’s blood pressure, including a TPA “clot buster” medication. This ultimately led to a major stroke. The Claimant filed a Petition, seeking to have the stroke deemed compensable as part of the work injury. While the Claimant’s medical expert provided theoretical explanations as to causal relationship, the employer’s expert disputed causation altogether.
The Industrial Accident Board issued a Decision finding that but-for causation was satisfied. The Board reasoned that, “but for the work accident Claimant would not have been in the emergency room that day ultimately getting treatment for his hypertension[,]” and therefore found the stroke to be related to the work accident. The employer appealed, arguing that the mere coincidence of timing and discovery does not establish compensability; if it did, then any and all medical conditions “discovered” while treating for a work injury would suddenly become the responsibility of the employer, without any logical connection to the employment.
The Superior Court reversed the Board’s Decision, finding that the Board failed to address whether the first mini-stroke was caused by the work accident or whether the subsequent administration of the TPA clot buster was related. According to the Court’s Decision, when the Board ruled “in the broadest terms possible that the accident caused the employee to go to a hospital where he was treated for high blood pressure, the Board effectively broadened the liability of the employer to that of general insurer and ignored the basic question of causation of the stroke. That cannot abide.” The Court rejected any suggestion that an employer must pay compensation for any treatment occurring in a hospital after a workplace injury occurs, holding that a coincidence in the timing of discovery does not equate to but-for causation. The matter was remanded to the Board for further proceedings.
Should you have any questions regarding this Decision, please contact Bill Rimmer, Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
Barrett Business Services, Inc. D/B/A Enterprise Masonry v. Robert Edge, C.A. No. N18A-05-005 CEB (Del. Super. May 1, 2019)


Superior Court Upheld Administrative Decisions to Disqualify Benefits
Plaintiff was hurt on vacation and was unable to work for two days. When the Plaintiff returned to work, he was transferred to another department and assigned new duties that were different from what he did before. The employee could not perform his new job function without pain. Employer had a policy that did not permit injured employees to continue to work with restrictions or pain due to that injury, therefore, employee was dismissed  based on his inability to work.
Plaintiff filed a petition for unemployment benefits and was disqualified from benefits at the administrative levels, because it was found that the employee was unable to work. Plaintiff then filed an appeal to the Superior Court.
Plaintiff argued that he was physically able to and available for work, but was not permitted by employer to stay in his previous position. However, at both the administrative hearings, the Plaintiff admitted that doing the assigned job duties caused him pain. In addition, the Court noted that there was no evidence that the Plaintiff was released back to work. Even though the Plaintiff submitted a certificate demonstrating his medical release to work, this was not submitted during the administrative process and, therefore, was not considered by the Court on appeal.
The Court found that there was substantial evidence in the record to support the administrative findings that the Plaintiff was unable to work and disqualified from benefits.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Hurtt v. Unemployment Insurance Appeals Board, 2019 Del. Super. LEXIS 187 (Del. Super. Ct. April 10, 2019.


Delaware Superior Court Couches Defendant’s Attempt to Sue Plaintiff’s Uninsured Motorist Carrier
A couch seated (no pun intended) in the middle of a busy roadway on a bridge caused the Plaintiff to stop his vehicle to avoid the obstruction. When he did, the Plaintiff was rear-ended by the Defendant.
The Plaintiff initiated litigation in the Delaware Superior Court alleging a claim of negligence against the Defendant. Subsequently, the Defendant filed a third-party action against the Plaintiff’s uninsured motorist carrier, Liberty Mutual, asserting the accident was caused by an unidentified vehicle (presumably, that the couch fell off) & included a claim for contribution and/or indemnification. In response, Liberty Mutual filed a Motion to Dismiss for lack of standing and failure to state a claim upon which relief may be granted.
The Delaware Superior Court analyzed the statutory intent of Delaware’s uninsured motorist statute, codified in 18 Del. C. § 3902, to provide protection for the insured driver against the negligence of an uninsured motorist.
In dismissing the third-party action, the Court found that the Defendant did not maintain a legally protected interest in the insurance contract between Liberty Mutual and the Plaintiff. There was no language in the contract that established the Defendant as an insured or an intended beneficiary thereof. Liberty Mutual intended to stand in the shoes of an absent tortfeasor, if any, for the purpose of providing coverage to its insured, the Plaintiff – not the Defendant.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Schmelz v. Martone, 2019 Del. Super. LEXIS 226 (May 2, 2019).

Special Olympics
Legal Secretary Julie Morgan-Pappert is proud of her son Elijah who won a Silver medal for Special Olympics at Kirkwood Soccer Center for Alfred G. Walters Middle School.  Go Elijah!!
Welcome Parker Lee!
Paralegal Alison Chapman, her husband Eric and son Miles welcome a new family member, Parker Lee Chapman. Parker was born on April 15th at 9:45 AM at 20.5 inches and weighing 7 lbs.
New Adventures 
Workers’ Compensation paralegal John Jackson is traveling to Japan at the end of the month. He will be visiting Osaka, Kobe, Tokyo and will be staying in Shanghai, China.
Furry Friends
Paralegal Kate Fielder adopted a kitten with her boyfriend. The kitten’s name is Maggie and she enjoys watching Game of Thrones and taking naps with her new brother, Boomer.