May 2021

Deny, Deny, Deny – Claimant’s Denial of History Results in Denial of Petition
The Claimant was involved in a work-related lifting injury to her low back in June 2018. In October 2018, Claimant went to the emergency room with shoulder and neck pain, with no, follow-up treatment for the shoulder until she saw an orthopaedic surgeon in April 2019. According to the surgeon, Claimant identified an incident that occurred 6-8 weeks prior in which she was wearing a large, bulky back brace and attempted to reposition herself; after placing her full weight on her left arm, she experienced left shoulder pain, which was ultimately diagnosed as a rotator cuff tear. A similar history was given to the physical therapist. The surgeon testified that he relied upon this history to relate the left shoulder injury to the work accident, as he placed the blame on the work-related low back brace causing the claimant to move unnaturally.
At the Hearing on Claimant’s Petition, however, Claimant gave an entirely different story. Claimant testified she was sitting on the couch in October 2018 and moved her left arm outward, at which point she felt a pop in her shoulder. Claimant specifically denied the history given by the surgeon and the physical therapist, with respect to both the mechanism of injury and the timing – she insisted it was a single event in October. Claimant also denied moving in any particularly awkward or abnormal ways while in the brace, again departing from the history reported by her surgeon.
After hearing the significant inconsistencies and outright denials of the recorded histories, the Board found Claimant was not credible or consistent, finding her “timeline of events incoherent” and noting her denials of the history given to her doctors difficult to reconcile. The Board was “left wondering if there was an inciting event” and, if so, whether it was one event or multiple. Instead, the gaps and uncertain symptoms and causes supported the opinions of the Employer’s expert, Dr. Matz, who testified that Claimant’s condition presented as the result of a rotator cuff that has worn down over 68 years of daily life and work. Because the Board could not reconcile the denials with the treating surgeon’s efforts to explain the mechanism of injury, the Board was left with no choice but to deny Claimant’s Petition entirely on the basis of causation alone.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
Geraldine Daggett v. ShopRite, IAB No. 1500021, March 19, 2021.
You Snooze You Lose… Your Job
Plaintiff was employed with Defendant from 2016 until his termination in 2018. In January of 2018, a co-worker observed Plaintiff sleeping on the floor. Plaintiff’s supervisor was contacted who photographed Plaintiff on his back on the floor with his eye closed. Two days later, Plaintiff was terminated. During Plaintiff’s termination meeting with his Supervisor, Plaintiff punched his Supervisor and then said, “Get up.” The decision to terminate the Plaintiff came from the Employee Relations Manager.
Plaintiff filed a discrimination charge alleging that he was terminated on the basis of his race and suffered a hostile work environment. Plaintiff asserts that the co-worker who reported him is “very, very racist” and the co-worker “would say something to the other white guys about black people” but “wouldn’t say it around” the Plaintiff. Defendant filed for summary judgment on all of Plaintiff’s claims.
In order to establish a prima facie case of discrimination, Plaintiff must show: (1) he is a member of a protected class; (2) he was qualified for the position held; (3) he suffered an adverse employment action; and (4) the action occurred under circumstances giving rise to an inference of intentional discrimination. In support, Plaintiff argues that he “witnessed his job being filled by a white employee on the same day he was terminated.” However, Defendant produced records that show a black employee filled Plaintiff’s position and Plaintiff provided no evidence to support his statement. Further, Plaintiff failed to identify similar situated white employees who were not fired for sleeping on the job, and Defendant cited several instances where white and black employees had been fired for sleeping on the job.
The Court concluded that since there were no genuine disputes of material fact concerning Plaintiff’s prima face case, summary judgment was appropriate. Even if Plaintiff made out a prima facie case of discrimination, the Court found that the Defendant offered legitimate non-discriminatory reasons for Plaintiff’s termination.
As to Plaintiff’s hostile work environment claim, Plaintiff must show that (1) he suffered intentional discrimination because of his race; (2) the discrimination was pervasive and regular; (3) it detrimentally affected him; (4) it would have detrimentally affected a reasonable person of the same protected class in his position; and (5) there is a basis for vicarious liability.
The Court found that Plaintiff failed his initial burden because Plaintiff provided only conclusory statements and no specific evidence that Defendant’s conduct was severe and pervasive to alter the terms and conditions of Plaintiff’s employment.
The Court granted the Defendant’s motion on all counts.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Keys, v. Hanover Foods Corp., 2021 WL 1751851, at *1 (D.Del., 2021)
The Statute of Limitations for Construction Defect Claims
Plaintiff drove his motor scooter off the road and onto the sidewalk adjacent to Defendant’s home. Unfortunately, the scooter’s front wheel hit an uneven section of the sidewalk and Plaintiff lost control and crashed.
Plaintiff filed suit alleging Defendant was negligent due to his failure to maintain the sidewalk in good repair. Defendant moved for summary judgment averring that no such duty existed.
The quested for the Delaware Superior Court was well framed: is an abutting owner liable for injuries resulting from his failure to repair a defect in a sidewalk which he has not caused. After reviewing ‘remarkably consistent’ prior precedent dating back to 1938, the Court found that no such duty exists under Delaware law. Moreover, Defendant’s knowledge of the problematic sidewalk was irrelevant. As duty is a core requirement of proof for the Plaintiff, the Court granted summary judgment in Defendant’s favor.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Washington v. Perrine, 2021 WL 1664125 (Del. Super. Ct. Apr. 27, 2021).
Page Chase, Firm Admin, sold her home in Delaware County, PA and moved back to her hometown in New Jersey. Page and her husband purchased a fixer upper and will begin renovations this month. Congratulations, Page!
Country music singer, Keith Urban calls Maria Newill for inspiration on his next single. Keith frequently relies on Maria’s good taste in music.
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