Workers’ Injury Law & Advocacy Group.
Anthony Frabizzio, partner, has been invited to speaking at the 2019 Northeast Regional Conference, hosted by the Workers’ Injury Law & Advocacy Group. This event will be held at the Logan, in Philadelphia, Pennsylvania, on December 7th. Mr. Frabizzio will be on a Legislative Panel along with Matthew Denn and Joe Rhoades, discussing, “Delaware’s Past, Maine’s Future”. If you would like to attend please visit WILG.
ADJUSTER CONTINUED EDUCATION CREDITS
The state of Delaware requires resident licensed adjusters to complete the required 12 credits, including, 3 ethics credits every other even year. Non-resident licensed adjusters also are required to complete the 12 credits, including, 3 ethics credits every other odd year. The biennial license period begins on March 1st and ends the last day in February. If you are a resident adjuster and need to obtain credits to satisfy the requirement by February 2020 please contact Page Hyson, Firm Administrator.
Caixia Su, law clerk, said “I DO” on October 1st. Caixia married her partner Richard Kerr in an intimate ceremony with their families. Congratulations Caixia and Richard!!
Scroll down to see photos from this past Halloween!
WORKERS’ COMPENSATION LAW
Board Refuses to “Shoot Moving Target” and Applies Successive Carrier Standard:
Claimant was involved in a compensable 2013 accident with Urgent Ambulance involving a herniated lumbar disc with radiating pain into his legs. Claimant’s symptoms improved to a point where they were tolerable but still present, and he returned to work with a new employer, Recovery Innovations. Claimant then alleged three separate incidents at Recovery Innovations, (1) a 2016 increase in low back symptoms felt days after moving furniture all day without a specific event, (2) a 2017 acute onset of back pain without radiation with lower pain levels than his initial accident, and (3) another 2017 incident where he woke up spontaneously with 10/10 low back pain without any specific connection to work. Claimant’s medical expert very confusingly testified that the first accident was responsible for the symptoms, then changed his testimony to say that each of the subsequent accidents were individually responsible for the symptoms and refused to exclude any of the four accidents as contributors to claimant’s injury.
The Board noted the successive carrier standard of Nally v. Standard Distributing was to be applied, meaning that to shift liability from the first to a subsequent accident, there would need to be an “untoward event” that resulted in a “new injury.” The Board commented that none of the subsequent allegations satisfied that standard as (1) moving furniture and feeling pain days later was not an acute incident, (2) feeling symptoms less severe than the initial accident was not a new injury, and (3) waking up spontaneously with 10/10 pain attributable to no specific work activity was also not an acute incident. The Board elaborated that the reason for the Nally approach is that any chronic injury is liable to wax and wane. If a subsequent employer is going to assume liability for the entire condition whenever some work activity causes a flare up of the condition, it would be a strong disincentive for any employer to hire an employee who had been injured in a prior work accident. It would also complicate getting medical care if the insurer on the risk for a physical condition could shift with each new flare up. The Nally standard was crafted to prevent such an undesirable result.
The important takeaways from this Decision are that under Nally it can be very difficult to shift liability from one accident with one employer or carrier to a subsequent employer or carrier, but there are many different nuances of Nally that can be outcome determinative. If you have any questions concerning this Decision, or any successive employer or carrier issue, please feel free to contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.
Keita Bowels v. Urgent Ambulance, et. al., IAB Nos. 1406305, 1458022, 1471444 (Sept. 13, 2019).
Employee Threw her Benefits Away
Plaintiff was employed by Defendant from 2016 until she was terminated in 2019. Plaintiff was terminated after she allegedly threw a valuable piece of the Defendant’s property on the floor against company policy.
Plaintiff filed for unemployment benefits and the Claims Deputy found that the plaintiff had been terminated for just cause and was not qualified for unemployment insurance benefits. Plaintiff appealed that determination and the Appeals Referee revered the decision, finding that the Plaintiff was discharged without just cause because there was no first hand testimony that the Plaintiff had threw the object verses it falling to the floor by accident.
The Defendant filed an appeal to the Board and at the Board hearing a witness with first- hand knowledge came forward and testified that the Plaintiff had deliberately thrown the object on the floor. The Board reversed the Appeals Referee decision and disqualified the Plaintiff from benefits.
The Plaintiff appealed to the Superior Court.
An Employee is disqualified for unemployment benefits if she has been discharged from her work for just cause in connection with her work. Just cause refers to a willful and wanton act in violation of either the employer’s interest, or the employee’s duties, or of the employee’s expected standard of conduct. Violation of a reasonable company policy may constitute just cause for termination, provided the employee is aware of the policy and the fact that termination may result for the violation thereof.
When reviewing a decision from the Board, the Court must determine whether the Board’s findings and conclusions of law are free from legal error and supported by substantial evidence in the record. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
The Court upheld the Board’s decision as they found the Board’s decision was supported by substantial evidence and free from legal error.
Mondestin v. Perdue Foods, LLC, 2019 Del. Super. LEXIS 534 (Super. Ct. Oct. 28, 2019).
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
LITIGATION CASE LAW
A SHOT PIERCING THE UM/UIM CONTRACTUAL VEIL EXCLUDING PUNITIVE DAMAGES
In litigation involving underinsured motorist benefits, the right to bring a punitive damage claim has been the elusive Holy Grail. It is pursued by plaintiffs’ attorneys more aggressively than Indiana Jones; yet typically defended by simple contractual exclusions. Ironically, the new challenge may be the underlying contract itself.
Following a February 2016 automobile accident, Plaintiff commenced litigation to obtain under-insured motorist benefits, including punitive damages, from Defendant Insurer. Thereafter, Defendant Insurer moved for summary judgment on the punitive damage claim citing its insurance contract with Plaintiff that expressly prohibited coverage for punitive damages.
The Plaintiff countered this argument by citing numerous provisions and terms of the underlying insurance policy that were prohibited by Delaware law. The policy’s definition of an ‘uninsured motor vehicle’ was inconsistent with current statutory language. Essentially, the policy used the 1984 definition which was repealed and amended in 2013. Additionally, the policy contained certain coverage exclusions that were previously deemed void and contrary to public policy. For instance, it attempted to exclude coverage under circumstances in which the claim involved a motor vehicle owned by the insured but not insured under the policy, or if the uninsured motor vehicle was owned by a government unit or agency.
In denying the Defendant Insurer’s Motion for Summary Judgment, the Delaware Superior Court found that the policy contained key provisions that were non-compliant with Delaware law and therefore determine it was statutorily deficient. As a result, the Court held that the Defendant Insurer failed to prove the policy contained a clear and unambiguous exclusion for punitive damages.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Shelor v. Nationwide Mut. Ins. Co., 2019 Del. Super. LEXIS 559 (Nov. 7, 2019).