ANNOUNCEMENTS

Carmella Cinaglia, attorney, spoke at West Chester University’s Women in Criminal Justice seminar. The seminar hosted a variety of speakers including attorneys, FBI and CIA agents, as well as police officers. Carmella’s panel consisted of women who graduated from West Chester University and are now rising in male dominated careers. The panel focused on women in the workplace, including equality between women and men as well as the importance of professional conduct and confidence. The goal was to educate women on how to successfully develop fulfilling careers.

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. If you are reading this, please send an email to Page Chase below to win a $5 wawa gift card. 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.

Keeping Up with H&F

GO TEAM!

Sandra Glackin, Legal Secretary, 7-year-old granddaughter and her cheerleading team won 2^nd place out of 12 teams in the Florida Regional Cheerleading Competition.  Her and her team now move on to the State Competition on May 20^th. Way to go, Ashley!

A Bright Future

Shiree Anderson, Paralegal, is proud of her son, Truth Anderson who was recruited earlier this year to the 302 Steelers “IT” Squad for the next 4 years as an offensive guard and defense tackle. He was also recently invited to the “Play Like a Baltimore Raven”, clinic where he met the wide receiver Shemar Bridges and back up Quarterback Anthony Brown. Truth loves football and says, “I want to go to the NFL like my Great Uncle Anthony Anderson” who played for the Atlanta Falcons and Pittsburg Steelers as a running back where he won a Super bowl ring in Super Bowl XIV. He is so excited for the football season to start!

Claimant was involved in a 7/24/19 work accident involving accepted knee and wrist injuries. On 10/6/22 Claimant filed a Petition seeking acknowledgement of a low back injury, payment of lumbar injections, and pre-authorization of lumbar surgery. The Board denied claimant’s Petition, relying on the opinion of defense expert Dr. Kahanovitz over claimant’s treating Dr. Zaslavsky.

On the issue of lumbar causation, the Board noted that claimant was seen immediately after the accident in an urgent care facility for her knee and wrist only. She did not return to any medical provider until she went back to urgent care on 8/22/19, or about 1 month later. At that time, she first complained of back pain, but denied any injury and said the pain started 1 week before. She was seen next on 8/27/19 (at the same practice), again denied any injury, and said the back pain began 3 weeks before. However, claimant testified that she felt back pain right away after the accident. The Board rejected that testimony, years later, as inconsistent with the contemporaneous records.

The Board was also concerned that Dr. Zaslavsky reviewed only a small portion of claimant’s medical records. He did not review records showing she had a host of medical problems immediately pre-dating the work event, including treatment for seizures, mid back pain, right shoulder problems, a TIA/stroke incident including left leg numbness, tingling and weakness, and a separate headache/lower extremity weakness tingling episode. Claimant admitted she was a smoker. She said Dr. Zaslavsky never talked with her about quitting smoking before lumbar fusion surgery. Dr. Zaslavsky never mentioned that claimant was a smoker in his medical records or deposition. Dr. Zaslavsky explicitly testified that claimant carried no additional surgical risk than any other patient. Dr. Kahanovitz on the other hand reviewed claimant’s medical records and noted how her medical history increased her surgical risks significantly.

The Board also did not feel that there was pathology requiring injections or surgery. Dr. Zaslavsky had insisted that there was an extruded disc fragment on imaging. The Board rejected that opinion as inconsistent with both the radiologist (at First State Imaging Center, an affiliate of Dr. Zaslavsky’s practice) and Dr. Kahanovitz’s personal review of the films. Dr. Kahanovitz testified credibly that claimant’s MRI showed a right sided protrusion, but her complaints were left sided. Right sided protrusions do not cause left sided complaints.

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

Green-Surman v. KW North, LLC, IAB Hrg. No. 1494685 (Apr. 20, 2023).

LITIGATION LAW UPDATE

Sovereign Immunity: A Brief History of the General Assembly’s Authority to Waive or Claim Immunity

The Superior Court granted the State of Delaware Department of Transportation’s Motion for Summary Judgment finding that plaintiffs’ claims were barred by sovereign immunity and the State Tort Claims Act. The claim arose out of a trip and fall on the sidewalk in front of a residence in Wilmington, Delaware. Plaintiffs sued the homeowner and the State for her injuries.

In considering the Motion, the Court reviewed an affidavit from the State’s Insurance Coverage Administrator, which affirmed that there was no insurance coverage applicable for the occurrence. The Court thus concluded that there was no insurance coverage constituting a waiver of sovereign immunity. In response, plaintiffs cited Pajewski v. Perry, and argued that an analysis of the efforts of the Insurance Coverage Determination Committee under 18 Del. C. ch. 65 was required before sovereign immunity could be asserted.

The Court considered, but ultimately dismissed, plaintiffs’ argument. In doing so, the Court discussed the history of sovereign immunity and insurance cases going back to the 1960s; a time when the Courts were actively displeased with the State’s failures to provide reasonable insurance coverage. The Court acknowledged the 1976 decision in Pajewski, and stated that the Pajewski Court, still frustrated by the State’s failure to procure insurance, demanded that the State provide “all of the facts as to how the Committee met its responsibilities. . ..” However, since that time, and following adoption of comprehensive insurance by the State, “the Court had become resigned to the fact that the placement and categories of insurance coverage were legislative, not judicial judgments.” As such, no analysis of the Committee’s efforts is required, and the affidavit of no insurance was acceptable to establish the existence of sovereign immunity.

Nancy J. Suter and Glenn Suter v. Tyrone Taylor and State of Delaware Department of Transportation, C.A. No. N22C-06-092 CEB (Del. Super. April 18, 2023)

EMPLOYMENT LAW

Plaintiff Fails to File Timely Appeal

Plaintiff filed for unemployment benefits with the Department of Labor (“DOL”) on April 10, 2022. The Claims Deputy found the plaintiff ineligible for benefits because she was not “unemployed” as defined by 19 Del. C Section 3302(17).

Under 19 Del. C Section 3302(17):

An individual is unemployed in any week during which the individual preforms no services and with respect to which no wages are payable to the individual, or in any week of less than full-time work if the wages payable to the individual with respect to such week are less than the individual’s weekly benefit amount plus whichever is the greater of $10 or 50% of the individual’s weekly benefit amount.

The Claims Deputy mailed the Notice of Determination to the Plaintiff on January 1, 2022, advising the Plaintiff that she was ineligible for benefits and that she could appeal the decision within 10 days, which would be on or before July 11, 2022.  In this case, the Plaintiff filed an appeal on July 20, 2022. Since the Plaintiff failed to file her appeal before July 11, 2022, the DOL filed a Notice, informing the Plaintiff that the Claims Deputy’s decision was final and binding. On August 30, 2022, the Plaintiff appealed to the Appeals Referee to determine the issue of whether the Plaintiff’s right of appeal was filed in a timely manner. The Referee determined that the appeal was untimely and that the DOL committed no administrative error. The Plaintiff filed a second appeal to the Unemployment Board, who affirmed the referee’s decision on November 4, 2022.

Following the Board’s decision, the Plaintiff appealed to the Superior Court, who only looks at whether or not there was substantial evidence to support the finding of the Board. The Court reviews the Board’s rulings for abuse of discretion and will only disturb the Board’s decision where the Board “acts arbitrarily or capriciously or exceeds the bounds of reason in view of the circumstances and has ignored recognized rules of law or practice so as to produce injustice.” The Court noted that the time for filing an appeal is an express statutory condition of jurisdiction that is both mandatory and dispositive. However, if the delay is caused by an administrative error on the part of the DOL, then the Court could find that the Claims Deputy’s decision is not final.

In this case, the Plaintiff argued that her appeal was filed late because she received the Notice of Determination from the Claims Deputy late. However, since the Plaintiff did not provide any evidence to suggest an error and the Notice of Determination was mailed to the Plaintiff’s address on file, the Board did not find any administrative error on part of the DOL. Further, Notice that is “correctly, stamped and mailed, is presumed to have been received by the party to whom it was addressed.”

Therefore, the Court upheld the Board’s decision and found that the Referee’s decision was supported by substantial evidence and free from legal error. Further, the Court concluded that the Board did not abuse its discretion when it declined to accept the Plaintiff’s appeal for review.

Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our liability law department.

Scull v. Unemployment Insurance Appeal Board, 2023 WL 3364513 (Del. Super, 2023)