September 2020

Dear Diary, The Claimant
Was Not Credible
Claimant filed a Petition alleging a 9/10/19 injury to the right wrist, elbow, and shoulder, ongoing total disability following approximately 4 weeks of modified duty work, and seeking payment for all associated medical treatment expenses, including pre-authorization of surgeries that had been recommended for all three body parts. The Board found that claimant failed to prove that any injury was causally related to his work activities. The testimony and evidence were inconsistent, and that detracted from claimant’s credibility and the strength of his case in general.
The Board was critical of claimant’s attempts to downplay his right arm symptoms associated with an earlier workers’ compensation injury. He first testified that all his problems resolved quickly, but then changed his story and admitted that following the accident he treated for years with high dose narcotic medications. He denied previously requiring any right shoulder treatment for the earlier accident, a statement contradicted by many of his own records. The Board also commented that the claimant’s story, as told to the defense medical expert in 2020, Dr. Crain, that the earlier records must have been for treatment for another claimant with the same name, detracted from his credibility, especially since the records contained the identical name, birth date, and many other facts indicating that the treatment was clearly rendered to the same individual. Claimant also omitted facts about his pre-existing condition from his pre-employment physical. On cross examination, he claimed he could not even recall appearing before the Board for two prior merit Hearings associated with his earlier claim.
The Board also discussed an alleged “journal” of the events that claimant had submitted to the Board at Hearing. The primary purpose of the journal was to rebut allegations by the Employer of a gap in treatment for the shoulder, as the journal contained numerous entries allegedly contemporaneous to the work event stating that claimant had reported shoulder pain. The Board questioned the veracity of the journal overall as many of the events in the journal were directly contradicted by his own records from multiple different care providers, as well as the employer’s records and witnesses’ testimony.
The Board even discussed claimant’s testimony that multiple providers treated him unprofessionally, including a physician affiliated with the employer. The Board found it highly unlikely that numerous providers would treat claimant unprofessionally or cause him to report his history inaccurately.
Should you have any questions regarding this Decision or would like the case caption, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.
Once, Twice, Three Times a Loser
Plaintiff had a difficult year. First, she was injured after she stepped through a wooden board on her back porch. Then, she lost the subsequent personal injury action against Defendants, her landlord and property manager. Spoiler alert – she is about to lose again.
In an effort to reverse her luck and the jury’s verdict, the Plaintiff advanced two arguments to the Delaware Supreme Court. First, the trial court erroneously instructed the jury that the parties charged each other with negligence per se when such claim was only maintained by the Plaintiff. Second, the trial court abused its discretion by denying her for-cause challenge of a prospective juror who was a substitute teacher at the same school that she was employed.
In affirming the verdict, the Delaware Supreme Court conformed to its longstanding practice of giving great deference to the results reached by its trial courts. The Supreme Court first addressed the Plaintiff’s arguments related to the alleged deficient jury instruction. The Court held that for an instruction to be deficient to the extent that a reversal is warranted, such deficiently must have “undermined… the jury’s ability to intelligently perform its duty in returning a verdict.” In Plaintiff’s case, the jury addressed the threshold issue, it did not find that either of the Defendants acted negligently. The Plaintiff’s own negligence (or her ability to be found negligent per se) was never addressed by the jury. Such was further evidenced by the trial verdict sheet that did not require the jury to consider the Plaintiff’s own negligence unless the Defendants were first found negligent. Thus, the trial court’s instruction, if erroneous, was irrelevant and amounted to harmless error at best.
Next, the Court determined that the trial court acted within its discretion when it denied the Plaintiff’s request to strike a potential juror. The juror at issue had no direct contact with either party and represented to the trial court that she could be impartial. The trial court had an opportunity to question the juror, observe the juror’s demeanor, and evaluate the juror’s ability to render a fair verdict. Such determination was absent any ‘prejudicial abuse’ that would demonstrate an abuse of discretion.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Prince v. Synoski Real Estate Mgmt., LLC, 2020 Del. LEXIS 299 (Sep. 4, 2020).
Defendant’s Motion for Summary Judgment Granted
After Plaintiff Admits to Fabricating Discrimination Claims
Plaintiff filed a charge of discrimination on the basis of race, color, and age after being termination by Defendant. Per Defendant’s employee handbook, all employees were expected to work forty hours per week, from 6:15 a.m. to 3/3:30 p.m. Plaintiff was either late to work or failed to come to work on more than one occasion. Plaintiff received a written warning on October 21, 2015 and was warned that future infractions could result in his dismissal.
On February 5, 2016, Plaintiff had issues with his vehicle and called Defendant after 6:30 a.m. but was not able to reach his supervisor until 7:45 a.m., at which time he was already late for work. Defendant told Plaintiff he was terminated as a “no call/no show.”
Plaintiff wanted to file a complaint for wrongful termination but was told he could only assert a claim if he included allegations of discrimination. During Plaintiff’s deposition, he testified that he has no evidence that his termination was because of his age, race, or color. Further, Plaintiff admitted he was terminated for being late to work and that his termination had nothing to do with his race, age or skin color.
Defendant moved for summary judgment on the ground that: (1) there is no evidence that the termination of Plaintiff’s employment was motivated by race or color; and (2) there is no evidence that the termination was motivated by age.
To establish employment discrimination under Title VII, a plaintiff must show that (1) he is a member of a protected class; (2) he was qualified for the position in question; (3) he suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. To establish age discrimination, a plaintiff must show that (1) he was over forty; (2) was qualified for the position in question; (3) suffered from an adverse employment decision; and (4) his replacement was sufficiently younger to permit a reasonable inference of age discrimination.
The Court granted Defendant’s motion for summary judgment because Plaintiff failed to establish a prima facie case of race, color or age discrimination and produced no evidence.  Further, Plaintiff acknowledged that he has no evidence that the termination was based upon anything other than the fact he was late to work.
Fullman v. TC Elec. Co., 2020 U.S. Dist. LEXIS 145598, at *1 (D. Del. Aug. 13, 2020)
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Workers’ Compensation Practically Speaking
Maria Paris Newill, Gregory Skolnik, and John Ellis, Partners, were speakers at the Delaware State Bar Association Webinar Workers’ Compensation Practically Speaking, on September 15, 2020. Ms. Newills spoke on Initiating the Employers’ Defense. Mr. Ellis provided a case law update, and Mr. Skolnik presented on Trial Practice and Presentation.
Maria Paris Newill, partner, is presenting the Delaware Adjuster Code of Ethics Webinar approved for 3 Delaware adjuster ethic credits on October 5th.
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 are in need of adjuster credits to satisfy the requirement by February 2021, or would like to attend the October 5th Webinar, please contact Page Chase, Firm Administrator.
Minor League
Amy Taylor, Partner, is proud of her daughter Avery who was recently named players of the week in her softball league. Avery is in 3rd grade but got called up to the Minors this year where she’s playing with kids up to 6th grade in hopes of getting some mound time. Her first outing she had two strike outs in one inning pitched with no earned runs and she also went 3 for 3 at the plate with two RBI’s. Congratulations, Avery!
Tattoo Artist
Lysa Kaminski, secretary, is proud of her son Bret, who is an up and coming tattoo artist. Below is an example of Bret’s talent. Keep up the good work, Bret!