November 2020

Me Thinks He Talked Too Much
Despite four compensable lumbar surgeries following a 2016 work accident, Claimant had not returned to work in any capacity and filed a Petition for a fifth lumbar surgery. Claimant’s expert, Dr. Zaslavsky testified that the surgery was needed to address adjacent segment disease that was causing progressively debilitating and severe functional problems.
Unfortunately for Claimant, the Board denied the Petition. In addition to citing Dr. Fedder’s defense expert testimony that claimant’s complaints were without any correlation to physical examination findings, the Board also noted that claimant’s physical therapy notes completely contradicted the allegation of significant functional deficits during the timeframe the claimant was considering surgery.
Specifically, physical therapy notes documented the claimant’s histories of being attacked by a dog, run over by a vehicle while doing mechanical work, turkey hunting, army crawling while turkey hunting, shooting and killing a turkey while hunting, plans to begin weightlifting, and consideration of pursuing martial arts classes while, at the same time, the claimant was engaging in hiking, camping, and fishing activities. Claimant also told his therapist that he was only undergoing the fifth surgery so that he would not lose his workers’ compensation benefits.
Should you have any questions concerning this Decision, please contact Greg Skolnik, or any attorney in our Workers’ Compensation Department.
Michael Padgett v. R & F Metals, Inc., IAB Hrg. No 1450795 (Oct. 28, 2020).
Defendant, a restaurant in Delaware’s Trolly Square, was sued after Plaintiff allegedly slipped and fell on its premises. Among other damages, the Plaintiff sought past and future lost earnings due to ongoing issues with her ability to work as a hairstylist.
Defendant moved to exclude the lost wage claim arguing the Plaintiff failed to secure the necessary expert witness testimony to maintain the claim. The crux of the Defendant’s argument was that the Plaintiff failed to establish through expert testimony that her injury limitations disabled her from all employment. The Defendant asserted that for a jury to assume a complete loss, partial loss, or even greater income upon a change of employment would require impermissible speculation.
In denying the Defendant’s motion, the Delaware Superior Court found that the Plaintiff was not required to present evidence of damage mitigation through alternative forms of employment. Instead, the Plaintiff must provide “some reasonable basis upon which a jury may estimate with a fair degree of certainty the probable loss.”
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Coco v. Trolley Square Hospitality, LLC d/b/a Trolley Square Oyster House, 2020 WL 6277425 (Del. Super. Ct. Oct. 26, 2020)
Plaintiff’s FMLA Claims Survive Summary Judgment as a Genuine Issue of Material Fact Existed
Plaintiff requested FMLA leave for a medical condition while employed with Defendant. Plaintiff was subsequently terminated from her employment following her FMLA notice. Plaintiff filed a complaint alleging Defendant engaged in FMLA interference, FMLA retaliation, and discrimination based on race, sex, disability and age. Defendant filed motions for summary judgment on all claims.
A claim for FMLA interference or retaliation requires a right to FMLA leave. An employee qualifies for such leave if the employee has a serious health condition involving continuing treatment by a healthcare provider or is hospitalized for in-patient care. An employee must also establish that notice was given to the employer of the intention to take or continue FMLA leave. Defendant argued that the Plaintiff did not sufficiently establish that she was entitled to FMLA leave and that she gave Defendant notice of her right or intent to take leave. The Court found that there was enough evidence to create a genuine issue of material fact because Plaintiff’s medical evidence established that she was unable to work, and she informed her H.R. supervisor of her absence.
For FMLA retaliation, an employee must establish that the right to FMLA leave was invoked, that an adverse employment action was suffered, and that adverse employment action was causally related to her FMLA request. The Court also found that there was a genuine issue of material fact as to whether Plaintiff gave sufficient notice of her intent to take FMLA leave. The Court further found that termination was an adverse employment action and the three days between Plaintiff’s notice of her right to FMLA leave and her termination constitutes “unusually suggestive” timing that is sufficient to evidence a causal relationship between Plaintiff’s request and termination.
As for Plaintiff’s discrimination claims, Plaintiff must present sufficient direct or circumstantial evidence that Defendant’s actions were based on discrimination. The Court found that the Plaintiff failed to point to any facts establishing discrimination based on disability, age or sex and, therefore, Plaintiff failed to defend those claims.  Likewise, Plaintiff failed to present any evidence that Defendant’s actions were motivated or impacted by a racial bias.
The Court concluded that the Defendant was entitled to summary judgment on Plaintiff’s discrimination claims, but not entitled to summary judgment on Plaintiff’s FMLA interference or retaliation claims.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Butler v. Hanover Foods Corp., 2020 WL 5501142, at *1 (D.Del., 2020)
Adjuster Continued Education Credits
Please join Amy Taylor, Partner, on November 19th from 2pm-5pm to learn all about Worker Compensation. This presentation is approved for 3 general credits in Delaware.
The State of Delaware requires resident and non resident licensed adjusters to complete the required 12 credits, including, 3 ethics credits every other year. The biennial license period begins on March 1st and ends the last day in February. If you need adjuster credits to satisfy the requirement by February 2021, or would like to join the presentation on November 19th, please contact Page Chase, Firm Administrator.
Congratulations to John Jackson, paralegal, who became an uncle last week. His niece, Giulia Rita Smith was born on 10/27/2020. Welcome to the world Giulia!