November 2016



Delaware Court Rules Running a Vacuum Cleaner,
Not the Same as Operating a Bus.
On October 13, 2016, the Delaware Superior Court once again clarified the “involving a motor vehicle” qualifier essential for obtaining PIP coverage. 21 Del. C. § 2118(a)(2)(c). The litigation arose from an injury sustained when Plaintiff, an employee of Delaware Transit Corporation, was cleaning a bus using a vacuum cleaner. The vacuum cleaner was not permanently attached to the bus and maintained its own power source; however, during its operation it hydraulically seals to the front door of the bus. A hose extends from the vacuum and releases compressed air to move trash and dirt forward, towards the vacuum. At the time of the injury, Plaintiff alleged he was pulling the hose toward the back of the bus when it became entangled in the reel and jerked him backwards.
The Court of Common Pleas granted Defendant’s motion for summary judgment, concluding the bus was only the situs of the injury rather than an activity accessory. Plaintiff appealed the decision to Superior Court. Both parties cited to Kelty v. State Farm Mutual Insurance Co., 73 A.3d 926 (Del. 2013), with differing results. Defendant argued the injury was not related to the use or operation of the bus- which was only the location of the injury. Alternatively, Plaintiff argued that use and operation includes cleaning with machinery specifically designed to attach to the bus. In upholding the decision of the lower court, the Superior Court specifically noted “nothing relating to the vacuums connection to the bus caused Plaintiff’s injuries.” The bus is akin to a stationary platform, and is therefore merely the situs of the injury.
For more information regarding Personal Injury Protection (PIP) coverage or any other legal questions, feel free to contact Michael W. Mitchell or any attorney in our Liability Department.
Jones v. Delaware Transit Corp, 2016 Del. Super. LEXIS 510 (Del. Super. 2016).

Expert Report Production Better Late Than Never:
Let My Expert Speak!
In Fountain v. McDonald’s, the Superior Court addressed the issue of whether the employer’s failure to timely file a Pre-Trial Memorandum and to turn over a medical expert report to the claimant, required the exclusion of employer’s expert testimony.
The claimant sustained a compensable back injury and in 2014, the employer denied medical expenses for a surgery and related treatment, for which the claimant filed a petition seeking payment of medical expenses. At hearing, claimant argued the employer medical expert testimony should be excluded, as the employer failed to timely file a Pre-Trial Memorandum, received only five days prior to the hearing, and the claimant received a copy of the defense’s medical expert report only two days prior to the defense expert’s deposition and 12 days prior to the hearing. The Board held that because the petition did not involve a claim of permanent impairment, the requirement under Board Rule 9 that the medical report be produced at least thirty days prior to the hearing was not violated, and that because the employer’s defense, a lack of causal relationship between the injury and the claimant’s work, was “not unique or uncommon,” no unfair surprise or prejudice existed which warranted its exclusion. The Board denied the petition, finding that the 2014 surgery was not necessary, reasonable, or causally related to the 2001 work accident, and the claimant appealed to Superior Court.
The Superior Court affirmed the denial of the petition and found that Board Rule 9 only requires the production 30 days before the hearing of a medical expert report for a claim of permanent impairment, not for compensation for a surgery and related treatment. The Court held that the expert testimony would be excluded only if the unfair surprise to a party by the admission of the evidence outweighs the prejudicial effect of exclusion, explaining that the Board Rules are in effect to “serve[] the interests of order and efficiency in Board proceedings as well as the prevention of unfair surprise.” In this case, the impact of the late submission caused no unfair surprise to the claimant, as the employer’s defense of causation is highly common and the claimant had the Pre-Trial Memorandum and medical expert report in time for the expert’s deposition.
For more information on the Fountain v McDonald’s case or any other legal questions, please feel free to contact any attorneys in our Workers’ Compensation Department.
Fountain v. McDonald’s, 2016 Del. Super. LEXIS 308 (June 30, 2016).

Delaware Superior Court Rules:
Delaware Doctors have Potential Class Action Interest in Late Medical Expenses Payments
Upon amendment in 2007, the Delaware Workers’ Compensation Act (“WCA”) “imposed repercussions on insurance carriers for failure to pay legitimate claims properly.” Specifically, the WCA provided that all invoices submitted for payment had to be paid within 30 days of receipt, so long as it provided all the information necessary to properly process the invoice and determine if payment was related to the claim. The WCA further provided that if payment was not made within the 30 Day period, the unpaid invoice would be subject to a 1% interest per month. *
First State Orthopaedics has a filed a proposed class-action on behalf of all Delaware health care providers, maintaining that Liberty Mutual has not acted in compliance with the WCA’s 1% interest mandate. Liberty Mutual filed a Motion to Dismiss arguing that (1) First State Orthopaedics did not have a private right of action to bring the claim and (2) that the proper forum for such Hearing was before the Industrial Accident Board (“IAB”) and not the Superior Court. In denying Liberty Mutual’s Motion, the Court found that First State Orthopaedics satisfied the 3-prong test needed to establish a private right of action. Further, the Court offered that sufficient evidence had not been presented as to Liberty Mutual’s other contentions such that would justify dismissal. In addressing Liberty Mutual’s assertion that the IAB would be the proper forum for this claim, the Court notes that any assertion by Plaintiff beyond “enforcement in pursuit of the interest owed would be a matter for the Board and not the Court.”
First State Orthopaedics v. Liberty Mutual Insurance Company, Case No. N15C-12-054 WCC CCLD, at *3 (Super. Ct. 11/01/16).
For more information on this matter or any other workers’ compensation questions, please contact any attorney in our Workers’ Compensation Department.
*Photo Credit: Provider Reimbursement Optimization Specialists,

Board Finds for Employer – Denies at- Hearing Claim Change
On 10/28/16, the Industrial Accident Board (“IAB”) issued its decision in Romero-Tanco v. Integrity Staffing Solutions, I.A.B. Hearing No. 1434697, denying claimant’s Petition to Determine Compensation Due in whole. In finding for the employer, the IAB concluded that there was no “work accident as no specific incident occurred.” Further, the IAB rejected claimant’s attempt to amend her Petition at hearing to include a claim for Cumulative Detrimental Effect, which must be plead prior to Hearing.
If you have any questions regarding Romero-Tanco v. Integrity Staffing Solutions, please contact William D. Rimmer or any attorney in our Workers’ Compensation Department.

Office of Anti-Discrimination to Now Allow for Release of Charge Files in Compliance with Freedom of Information Act
The Department of Labor’s Office of Anti-Discrimination has long held the position that files pertaining to charges made in its office were not subject to the Freedom of Information Act. Prior to a recent policy change, files were only released to parties of the charge once litigation has been initiated. The new policy no longer puts the litigation restriction on the parties, but rather allows for the release of the file 90-days after a final determination has been made. Requests for file release following the initiation of litigation will continue to be granted.
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.

This Day in Legal History: November 15, 1777
The Continental Congress adopted the Articles of Confederation
The Continental Congress adopted the Articles of Confederation, the first constitution of the United States, on November 15, 1777, but the states did not ratify them until March 1, 1781. The Articles created a loose confederation of sovereign states and a weak central government, leaving most of the power with the state governments. Once peace removed the rationale of wartime necessity the weaknesses of the 1777 Articles of Confederation became increasingly apparent. Divisions among the states and even local rebellions threatened to destroy the fruits of the Revolution. Nationalists, led by James Madison, George Washington, Alexander Hamilton, John Jay, and James Wilson, almost immediately began working toward strengthening the federal government. They turned a series of regional commercial conferences into a national constitutional convention at Philadelphia in 1787.
“An opinion begins to prevail that a general convention for revising the articles of Confederation would be expedient.”
John Jay to George Washington, March 16, 1786

Staff Personal Interest

Attorney John Morgan and paralegal Brianna Perry completed the 2nd Annual C&D Canal Half Marathon on 11/05/16 benefitting the National PTSD Foundation; a non-profit organization that serves to raise awareness and assist America’s first responders suffering from post-traumatic stress disorder. Congratulations John and Brianna!

2016 DRI Annual Meeting
Managing Partner Patrick Rock attended the annual DRI Meeting from October 19th  to the 23rd in Boston. Patrick took advantage of the exceptional continued legal education programs offered and met with vauled clients. Heckler & Frabizzio Attorneys are always looking for areas of improvement and keep our clients interest first.
Help us help you!
Heckler & Frabizzio sent out a client feedback survey through SurveyMonkey in May. We obtained some responses but wanted to make it available to our clients again. If you complete the survey linked below, please send an email to to win a $5 gift card. Your feedback is important to us!