October 2019

Don’t Call Bob the Builder Yet – Employer “Glides” to Victory on Home Modifications:

In Chenault v. Matrix, IAB Hrg. No. 1295610 (Sept. 20, 2019), Claimant sought payment for home modifications including two stair glides and two wheelchair ramps. Employer agreed to pay for the front door ramp but disputed the two stair glides and rear deck ramp.

Claimant testified that he wanted the stair glides so that he could have safe access to both the upstairs and the unfinished basement of his house where he hoped to build a ‘man cave’ in the future. He also requested the second, “back-deck” ramp to access the backyard where he had a gazebo; in addition, he wanted to go in that yard with his dogs.

The Board found that these proposed additional modifications were not reasonable and necessary. Even though the Claimant already had mobility problems, he previously declined an earlier opportunity to add these features to the house when it was rebuilt many years ago. Additionally, the employer already paid for home modifications for a first-floor bathroom specifically to allow for single floor living. The Board was perplexed by the request for the rear ramp because it would place the claimant unsafely on uneven grass surfaces. The Board also took note that the Claimant’s proposed rear ramp invoice was $30,000.00, which appeared to provide the claimant with a “complete rebuild” of the rear deck, not just a simple ramp addition; whereas, in contrast, the uncontested frontside ramp cost only $10,000.00.

Please note that outcomes on home modifications cases are variable. There was another very recent Decision from the Board, handled by another Delaware law firm, where the employer was ordered to pay approximately $120,000.00 in home modifications.

Should you have any questions concerning this Decision, or handling of home modifications cases in general, please contact John Ellis or any other attorney in our Workers’ Compensation Department.

Employee’s Claim under the ADEA Survives Motion for Summary Judgment

Plaintiff was hired by Defendant in 1993 and was terminated in 2015, at age 58. Defendant states that the Plaintiff was terminated because she had interpersonal conflicts with her co-workers, which included negativity in the office and making personal phone calls. Plaintiff had no write ups in her file regarding the conflicts and there was no evidence that the Plaintiff was formally reprimanded or disciplined. After Plaintiff was terminated, Defendant initially used younger employees to handle what had been the Plaintiff’s responsibilities.

Plaintiff filed a lawsuit alleging termination based on the Age Discrimination in Employment Act (“ADEA”).

The ADEA prohibits employers from “discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age (over 40). The plaintiff must prove by a preponderance of the evidence that the age was the ‘but-for’ cause of the employer decision.

Plaintiff argued that that she was replaced by a much younger person and she had no negative performance reviews. Further, the Plaintiff testified that an agent of Defendant said,” they could bring someone in younger and pay them a lot less money.” Plaintiff said that this statement was made six months before she was terminated.

Defendant argued that the Plaintiff was terminated for negativity and interpersonal conflicts that lowered office moral and Defendant produced testimony and emails that described these alleged problems.

The Court denied summary judgment on the ADEA claim because both parties produced conflicting testimony and evidence on the issues of whether the plaintiff was terminated for poor performance or because of her age. As for the age related comments by the Defendant, the Court found that because the comments were made six months before the Plaintiff was terminated, a reasonable factfinder could not find that the Plaintiff was terminated because of her age. Therefore, the statements were not direct evidence. However, since the record contained sufficient circumstantial evidence – the Plaintiff was over 40 at the time of her termination, she suffered an adverse employment decision of termination, and was qualified for her position – the Plaintiff’s claim survived summary judgment.
Gray v. Kirkwood Dental Assocs., PA, 2019 U.S. Dist. LEXIS 159229 (D. Del. Sep. 18, 2019).

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

Following two separate automobile accidents, Plaintiff commenced litigation for personal injuries that included a claim for future surgery and treatment.

In support of his claim for future damages, the Plaintiff identified two medical experts and produced their corresponding reports. Therein, the Plaintiff’s orthopedic expert opined that the Plaintiff “may need periodic visits for evaluation if there is any change in his symptoms.” Further, that “[t]he major future cost would be related to surgical intervention if [Plaintiff’s] symptoms became severe to require surgery.” This opinion was reiterated by the Plaintiff’s second medical expert who essentially deferred to the orthopedist.

The Defendants’ moved to strike any and all evidence related to the Plaintiff’s alleged need for future surgery. In support thereof, the Defendants argued that the proposed expert evidence was not credible as it was impermissibly speculative and not stated pursuant to a reasonable medical probability as required by Delaware law. Cleverly, the Plaintiff argued that such evidence at a minimum was admissible to support his claim for mental anguish over the possibility of future surgery.

In granting the Defendants’ Motion, the Delaware Superior Court held that the orthopedic expert’s statements regarding the possible courses of treatment and costs that might arise if now-unmet conditions are ultimately met was speculative. Further, permitting the Plaintiff to offer the same expert evidence in support of his claim for mental anguish would prejudice and mislead the jury. The Court reserved its decision on the admissibility of the Plaintiff’s own non-expert testimony regarding future surgery as additional context to determine admissibly was necessary and will be provided at trial.

For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.

Li v. Geico Advantage Ins. Co., 2019 Del. Super. LEXIS 481 (Oct. 7, 2019).



Heckler & Frabizzio is proud to support the Ronald McDonald House of Delaware for the Firm’s October charity drive. Staff members donate items that are in high demand to help support families who’s child is getting treatment for serious/chronic illness or injury. Stay tuned for our upcoming charity drives.


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.


John Morgan, of counsel, is proud of his daughter, Christina Morgan, who graduated with Magna Cum Laude honors from Emory University in Atlanta, GA in May 2019 with a double major in US History and Russian. She accepted a volunteer position with the Peace Corps in Ukraine. During August, she began her formal training in Malyn, Ukraine where she currently lives with her first host family. Her training is almost complete and on October 16th, she will be formally sworn in as a Peace Corps Volunteer (PCV). At that point, she will transfer to Kushuhum, Ukraine where she will be placed with a second host family and begin her 2-year volunteer commitment. The plan is for her to remain with her second host family for about 4 months after which she will transition to living on her own in Kushuhum. She seems to be thriving in her new environment and host county. She is well on her way to being fluent in Russian and Ukrainian. We are very proud of her.


Brianna Grajewski, paralegal, adopted Auggie, an adorable black cat. Auggie is doing well getting along with his fellow fur “brothers and sister”. Welcome to the family Auggie!