November 2018

Partner William Rimmer celebrates 25 years of service with Heckler & Frabizzio. The Firm surprised Bill with a luncheon celebration and presented him with a crystal clock to represent the time he dedicated to the Firm. We are lucky to have Bill as a partner. Congratulations!
John Morgan will be speaking at the upcoming NBI seminar on December 5th, presenting on the topic on Workers’ Compensation Fundamentals. If you would like to attend this seminar please visit, NBI.

New Trend?  

IAB Closely Scrutinizes And Denies
Two Surgeries on Reasonableness and Necessity
In Gregory Gaynor v. Amazon, Inc., IAB Hrg. No. 1437267 (Sept. 28, 2018), the Employer was able to convince the Board that lumbar hardware removal surgery performed by Dr. Rudin was not compensable, even though Employer had previously paid for the surgery when the hardware was implanted. The Board noted that following the original fusion with hardware implantation, the claimant was stable in his examinations with the defense medical expert and others. There was complete union of the fusion. The hardware removal surgery did not even help Claimant’s subjective complaints. Dr. Rudin ignored a potential overlying hip problem that claimant’s other treating physicians had felt might be contributing to his pre-operative presentation. The Board noted that Dr. Rudin testified that hardware removal surgery is needed 70% of the time a lumbar fusion is performed. The Board did not accept the contention that hardware removal surgeries are to be done as a matter of course following a fusion surgery without significant medical justification.
In Lawrence Evans v. Sobieski, IAB Hrg. No. 1422481 (Oct. 22, 2018), the Board denied a three level C4-7 cervical fusion proposed by Dr. Kalamchi as not reasonable and necessary, despite the employer paying for three prior cervical spine surgeries (including a C5-6 fusion, revision of same, and C4-5 disc replacement). The Board noted that despite claimant’s three surgeries to date, he was continuing to work in a modified duty capacity as a plumber, and all medical experts agreed that if he had the three-level fusion, he would be permanently disabled from this job, even with a good outcome. Even Dr. Kalamchi conceded that 50-60% of patients who have this surgery experience only 50-60% improvement. The Board criticized these odds as low and “vague.” The Board accepted testimony of the defense medical expert who testified that the likelihood of a positive surgical outcome “exponentially decreases” with each ensuing spinal surgery and called Dr. Kalamchi’s numbers unrealistic. The Board also noted that if Claimant had the surgery, he would be more prone to developing adjacent segment disease in the two remaining levels in his cervical spine, which was concerning because he had already developed adjacent segment disease in the two levels adjacent to his original C5-6 fusion. The Board was critical of Dr. Kalamchi’s methodology for including the C4-5 and C6-7 levels in the proposed fusion, noting that diagnostic injections done to the C4-5 level were not effective, and citing DME testimony that there was no nerve root compression at the C6-7 level on MRI, nor any clinical correlation indicative of a surgical problem at this level.
Should you have any questions concerning these decisions please contact John Ellis, Greg Skolnik, or any other attorney in our Workers’ Compensation Department.

You Are Outta Here!
Supreme Court Update
“Course and Scope” of Employment Arguments Concerning Firm Sponsored Softball
Claimant was injured during an employee softball game sponsored by his law firm in a Delaware lawyers’ softball league. The Industrial Accident Board found the injury to be within the “course and scope” of employment. Employer appealed.
We previously reported on the Superior Court’s March 29, 2018 Order, wherein the Court reversed the finding of the Board and held that the employer had not derived a substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life, and therefore, the accident was outside of the “course and scope” of employment. The Superior Court noted that the “direct benefit” needed to bring such activity within the “course and scope” of employment would be the benefit a business gains from having its employees entertain clients, or the participation of employees in business-related clubs, organizations, or social activities. In other words, there must be a for profit purpose behind the activity for it to be within the “course and scope” of employment. There was no such purpose in having the Claimant participate in this particular softball league. The firm did not derive any business benefit by having the Claimant participate in softball. They did not advertise at games. Clients did not attend or participate in games. Softball had no beneficial monetary impact on the firm.
Claimant appealed this decision to the Delaware Supreme Court. Following Oral Argument, the Supreme Court issued a brief one-page order dated November 1, 2018, affirming the Superior Court Decision and accepting the Court’s analysis.
Should you have any questions concerning this Decision, please contact any attorney in our Workers’ Compensation Department.
William Weller v. Morris James LLP, No. 200, 2018 (Del. Nov. 1, 2018)(ORDER)


Duty To Maintain Uneventful Video:
Adverse Inference Instruction Granted
Where Defendant Failed To Safeguard Evidence
On February 28, 2015, Plaintiff slipped and fell on a sidewalk at a convenience store owned and operated by Defendants.
Plaintiff is claiming that Defendant permitted snow and ice to remain on the sidewalk for an extended period of time which in turn caused her to fall and Defendant failed to warn her of the allegedly dangerous conditions.
A surveillance video allegedly showed Plaintiff’s fall and the sidewalk’s condition. An administrator for Defendant testified that she reviewed the video but did not recall seeing Plaintiff’s fall because of an obstruction. Additionally, the administrator said that she downloaded the video and saved it to a CD, but it was apparently lost. Plaintiff sought an adverse inference jury instruction at trial because Defendant did not retain the surveillance video. Defendant claimed that an adverse inference instruction would be inappropriate because there is no evidence that it intentionally or recklessly destroyed the evidence and the lost recording would be immaterial and irrelevant because the event was not captured. The Court found that Defendant behaved recklessly in only having one copy of the video and failing to keep it in a safe place. Plaintiff’s motion for adverse inference was granted.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Foreman v Two Farms, 2018 Del. Super. LEXIS 242, (Del. Super. Ct. October 4, 2018)

Temporarily Out of Service?
Court Upholds UIAB’s Finding of Voluntary Quitting by Temporary Employee
Under 10 Del. C. §3314(1), a person does not qualify for unemployment benefits if they voluntarily quit their position without good cause attributable to such position. If the employee is a temporary employee hired by a temporary staffing firm, under 19 Del. C. §3327(b), s/he “will be deemed to have voluntarily quit employment if the employee does not contact the temporary help firm for reassignment upon completion of an assignment.” The law also requires that the employer advise each temporary employee of the obligation to contact them upon completion of an assignment and that “failure to contact [the employer is] considered a voluntary quit.”
In Kazongo v. J&J Staffing Resources, Inc., et. al., James Kazongo (“Plaintiff”) was employed by J&J Staffing Resources (“Employer”) as a temporary employee from April 28, 2017 to June 26, 2017, at which time his initial assignment with employer ended. Upon hire, plaintiff was provided with employer’s “Temporary Services Employment Agreement – DE” as well as the Employee Handbook, which offered that plaintiff was required to contact Employer within two days of an assignment ending and was required to follow-up every day thereafter if he wished to remain employed. If he failed to follow this procedure, it would be considered a voluntary quit. Plaintiff did sign an acknowledgment that both the Agreement and Handbook had been reviewed. Plaintiff states that he did call employer two days after the end of his initial assignment and continued to call on a weekly basis. However, employer rebutted this claim, submitting call logs that showed no incoming or outgoing calls to Plaintiff between June 26, 2017 and October 4, 2017. Based on this information, the Unemployment Insurance Appeal Board found in favor of employer and denied Plaintiff’s unemployment benefits.
On appeal, Plaintiff argued that if he had voluntarily quit his job, employer would not have called him on October 4, 2017 to offer him further work. In upholding the Board’s Decision, the Court found that despite the October 4, 2017 call by employer, Plaintiff had not complied with 19 Del. C. §3327(b) nor employer’s policy requiring contact within 48 hours of the assignment ending. Based on this, and the evidence noted above, the Court found that the Board did have substantial evidence to support its denial of plaintiff’s benefits noting that plaintiff “voluntarily left his employment without good cause by not maintaining contact with employer as was required.”
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
James K. Kazongo v. J&J Staffing Resources, Inc., et al., C.A. No. N18A-02-003 VLM (Del. Super. Ct. Oct. 24, 2018).

November 14, 1732
Library Company Of Philadelphia
 Signs Contract With Its First Librarian
On November 14, 1732, the Library Company of Philadelphia signed a contract with its first librarian. Founded by Benjamin Franklin and friends in November of 1731, the Library Company enrolled members for a fee of forty shillings but had to wait for books to arrive from England before beginning full operation. The Library Company of Philadelphia grew out of the needs of the Leather Apron Club, also known as the “Junto,” of which Franklin was a member. In addition to exchanging business information, these merchants discussed politics and natural philosophy, contributing to their requirements for books to satisfy their widespread interests. Volumes were purchased with the annual contributions of shareholders, building a more comprehensive library than any individual could afford. Directors of the Library Company made their holdings available to the first Continental Congress when it convened in Philadelphia in September of 1774. Extract from minutes of the directors of the Library Company of Philadelphia, dated August 31st., directed to the President, was read, as follows: “Upon motion, ordered, That the Librarian furnish the gentlemen, who are to meet in Congress, with the use of such Books as they may have occasion for, during their sitting, taking a receipt for them. By order of the Directors, (Signed) William Attmore, Sec’y.” After independence, the third session of the new Federal Congress convened in Philadelphia in January of 1791, and the Library Company directors again tendered use of their facility. In essence, the Library Company served as the de facto Library of Congress until 1800 when the fledgling legislature moved to its permanent Washington, D.C., location and the Library of Congress was founded.