On 10/29/21, Claimant filed a Petition to Determine Compensation Due seeking a finding of compensability for an injury described as “left shoulder pain from bursitis/tendinitis caused by repetitive movements, such as lifting, pushing, pulling, carrying heavy equipment and objects, and overhead activities involved in his 17-year career as a firefighter” with a “diagnosis date of 3/16/21.”

On 8/25/22, the Board issued a Decision, finding claimant’s allegations were barred by the relevant statute of limitations, and that claimant failed to substantively meet his burden of proof to establish the compensability of his alleged injury.

The Board noted that the statute of limitations for cumulative detrimental effect claims is two years from the date when a “claimant as a reasonable person should recognize the nature, seriousness, and probable compensable nature of the injury.” Geroski v. Playtex, 676 A.2d 904 (Del. 1995). Records dating back to 2013 attributed shoulder pain to drills, activities, and repetitive motions at work. Treatment from the 2013-15 timeframe included references to 10/10 pain, claimant had MRI testing, injections, physical therapy, and surgery was even recommended. Claimant’s own medical expert, Dr. Axe, testified that the early records from his practice never mentioned work as the cause of Claimant’s problems, because Claimant’s primary care doctor who referred the claimant already documented that causation theory.

The Board also held that Claimant failed to meet his burden to show that he sustained a cumulative trauma to his left shoulder substantially caused by his employment as a firefighter. There was an acute event and repetitive use type comments in the 2013-15 timeframe. There is then a gap in treatment until 2018 when the claimant presented with new shoulder complaints attributable to doing a yoga pose. Although Claimant testified his shoulder pain continued from 2015-18, this testimony was inconsistent with the records that included annual physicals. Claimant’s own treating doctor’s records for the 2018 yoga injury were consistent with an acute event and there was no mention of ongoing pain before that. An updated MRI done at that time showed a new SLAP tear not seen on an earlier scan.

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

Terrance Tate v. City of Wilmington, IAB Hrg. No. 1517314 (Aug. 25, 2022).

LITIGATION LAW UPDATE

What Goes Up Must Come Down: Landlord Not Responsible for Latent Defect in Home’s Condition

The Superior Court granted landlord defendant’s motion for summary judgment when a potential renter was injured by a falling attic staircase while touring the home. During the tour, plaintiff inquired whether there was an attic, at which point the landlord pulled a string attached to an enclosure causing stairs to unfold from the ceiling. Landlord then climbed the stairs into the attic, turned on the light and descended the stairs. However, when plaintiff climbed the stairs immediately thereafter, the stairs system broke lose and plaintiff fell to the floor resulting in injuries.

Plaintiff testified that landlord had climbed the stairs just moments prior to the accident and that landlord “expressed shock” when the stairs fell. Although landlord reportedly made an offhand comment about a “nasty divorce” and that her “ex-husband may have booby-trapped” the stairs, plaintiff, her husband and their son all agreed that landlord was shocked and that had no reason to believe the stairs would fall.

Liability may be imposed upon a property owner for injuries caused to a business invitee by a condition of the property if (i) she knew of it or (ii) if by the exercise of reasonable care, she would have discovered the condition, realized it involved an unreasonable risk of harm, and failed to provide adequate warning. Here, there was no evidence that landlord knew of any issue with the stairs, and the court found the undisputed testimony of landlord having climbed the stairs and appearing shocked when they fell to be persuasive. In addition, the court reasoned that landlord, without having any specialized knowledge, would not have appreciated the risk of the latent defect even upon reasonable inspection.

Jennifer Zadnik-Snider & Aaron Snider v. Kathleen A. Kelly, C.A. No. S20C-01-017 RHR (Del. Super. November 16, 2022)

EMPLOYMENT LAW

Plaintiff Fails to Plead Facts to Support Her Claim…. Twice

Plaintiff began working for Defendant in the summer of 2020. During training, a male manager compared the plaintiff to an adult film star and told her, “Woman are too delicate to work at Amazon.” Thereafter, the Plaintiff resigned but Defendant offered to reinstate her and move her to a new facility, which the Plaintiff accepted. However, Plaintiff’s new manager made personal calls to the Plaintiff and sent her selfies. Between the end of August until the end of November, Plaintiff’s new manager called her fourteen times to discuss his dating life and asked the Plaintiff to show him around the University of Delaware, where she went to college. The manager also hinted that he could help the Plaintiff get a promotion and a raise.  The Plaintiff made it clear that she was not interested in her manager. Subsequently, the manager began to ignore the Plaintiff’s work-related communications and the Plaintiff was then reassigned to a facility in New Jersey, which she believed was the manager’s doing. Her duties at New Jersey were normally reserved for lower-level employees. The stress from the manager’s treatment towards the Plaintiff, caused the Plaintiff to take a seven-month medical leave. She reported the harassment to her Defendant’s Human Resources department, who found the claims to be unsubstantiated.

Plaintiff sued Defendant under Title VII, which forbids employers from discriminating based on race, sex or national origin. Plaintiff claims Defendant subjected her to a hostile work environment, discriminated against her because of her race and sex, retaliated against her for complaining about the harassment and discrimination that she experienced and allowed quid pro quo sexual harassment. The Court dismissed the Plaintiff’s First Amended Complaint but gave her leave to amend. The Plaintiff filed a Second Amended Complaint, and the Defendant filed a Motion to Dismiss that Complaint.

On a Motion to Dismiss, the Court asks whether the Complaint contains, “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

The Court found that the Plaintiff failed to allege enough facts to support any of these allegations. First, the Plaintiff does not allege that the discriminatory treatment was severe or pervasive.  Though the numerous phone calls were inappropriate, the Court concluded that they did not rise to the level of “sufficiently extreme.”  As for the transfer, the Court found that the Plaintiff’s employment level did not change during the reassignment, and her salary was unchanged. Therefore, the Court did not consider it a demotion.

The Court dismissed the Plaintiff’s Second Amended Complaint, explaining that the Plaintiff was given a chance to plead facts that would support her claims, which she failed to do. Therefore, the Court would not grant further amendments.

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

Sousa v. Amazon.Com, Inc., 2022 WL 4548910, at *1 (D. Del. Sept. 29, 2022)