September 2021
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WORKERS’ COMPENSATION LAW
Continuing Trend? IAB Again Favors 6th Edition of AMA Guides in Total Knee Replacement Permanency
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Approximately two years ago, we reported on a Board Decision in the matter of Kathy Thomas v. City of Wilmington, IAB Hrg. No. 1417741 (July 30, 2019), where the Board for the first time indicated a preference for the 6th Edition of the AMA Guides over the 5th edition, in the context of total knee replacement surgery.
Specifically, the Board commented: “The Board is well aware that the Claimant’s Bar does not favor the 6th Edition solely for the reason that impairment ratings are lower which in turn translates to a lower financial recovery for claimants. The Board finds that in cases such as this one involving a specific surgical procedure the 6th Edition provides more accurate and equitable ratings that account for favorable surgical outcomes than the 5th Edition. In those cases and cases involving prosthetics use of the 6th Edition would be preferred.” We questioned whether this was the start of a new trend.
Just last week, the Board issued a new Decision in Craig Currington v. City of Wilmington, IAB Hrg. No. 1445651 (Sept. 10, 2021), accepting the opinion of defense expert Dr. Piccioni over that of Dr. Rodgers (same experts used in Thomas). In awarding the lower 6th Edition rating (23%) over the 5th Edition rating (37%), the Board noted that they considered Dr. Piccioni’s experience in performing total knee replacement surgeries over Dr. Rodgers, who does not perform these procedures. Dr. Piccioni testified credibly as to improvements in technology since the 5th Edition was published in 2011 that increase function, including better implants that are designed to match the natural contours of the knee, provide more stability, better materials used, reduced bleeding, and less scar tissue. Mr. Currington had in fact experienced substantial improvement with his knee replacement, as he was limited to light duty before surgery, within months of the surgery was working full duty in a physically demanding job without substantial problems. The Board accepted Dr. Piccioni’s opinion that this great outcome was consistent with the improvements he sees in his own patients due to advancements in technology.
Should you have any questions concerning this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.
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EMPLOYMENT LAW
Employee Failed to Give Employer Time to Address Concerns Before Quitting Employment
Leaving Employee Benefit less
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Plaintiff worked part time for Defendant from September to December 2019 as a cashier. After the store was robbed, the Plaintiff reported her safety concerns to her mangers, but she claims her managers quit because they also did not feel safe. The plaintiff said she also tried to notify the regional manager but was unsuccessful. Therefore, the plaintiff left her employment because she felt unsafe.
The plaintiff filed for unemployment benefits in May of 2020, and the claim’s Deputy found that the plaintiff was disqualified from benefits. The claim’s Deputy found that the plaintiff failed to show good cause for leaving her employment. The Plaintiff appealed the decision to the Appeals Referee, who upheld the claim’s Deputy’s decision and then appealed to the Unemployment Insurance Board, who found that the plaintiff voluntarily left her employment without good cause because she did not show that she had exhausted her remedies with her employer before quitting. Therefore, the Board upheld the Referee’s decision.
In a last ditch effort, the plaintiff appealed to the Superior Court, alleging safety issues, sexual harassment issues, lack of hours / reduction of hours, and that her weekly benefit amount was miscalculated.
In reviewing the plaintiff’s appeal, the Court must determine whether the “findings and conclusions of the Board are free from legal error” and whether they are “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.” In this case, the Plaintiff has the burden of showing she had “good cause” for voluntarily leaving her employment. Good cause is found when: (1) an employee voluntarily leaves employment for reasons attributable to issues within the employer’s control and under circumstances in which no reasonably prudent employee would have remained employed; and (2) the employee first exhausts all reasonable alternatives to resolve the issue before voluntarily terminating employment. The employee must give the employer a reasonable amount of time to address the employee’s concerns. The Court has held that “an employee does not have good cause to quit merely because there is an undesirable or unsafe situation connected with the employment” but does when the “the employee’s ability to earn a living is jeopardized.”
The Court upheld the Board’s decision because there was no evidence to support the Plaintiff’s claims that she attempted to raise her safety issues with management. As to the plaintiff’s other claims, the Court did not consider her arguments since they were not raised during the below proceedings. Therefore, the Board’s decision was affirmed.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Morales v. Dollar Tree Stores, Inc., 2021 WL 3523927 (Del.Super., 2021)
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LITIGATION CASE LAW
Sorry Cinderella! Court Finds Step Children Unable to Maintain a Claim Under Delaware’s Wrongful Death Statute
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This litigation arises out of a claim asserting medical negligence which allegedly resulted in Decedent’s death.
The Plaintiffs, a group comprised of Decedent’s husband, three natural children, and stepson, brought suit on behalf of Decedent’s estate as well as themselves under the Wrongful Death Statute. Plaintiff Stepson was the natural son of Decedent’s husband who was never formally adopted.
During the course of the litigation, Defendants filed a Motion for Partial Summary Judgment as to Plaintiff Stepson’s claims arguing he cannot recover under 10 Del. C. § 3724(a) of the Wrongful Death Statute because stepchildren are not included in the definition of “child.”
In addressing the dispute, the Delaware Superior Court simply looked to the plain language of the Wrongful Death Statute which identifies a ‘child’ as a class of individuals that may recover for a wrongful death claim. The statute defines “child” to include illegitimate children but is silent on whether stepchildren are included.
Ultimately, the Court held that for the purposes of the Wrongful Death Statute, the term ‘child’ does not include stepchildren. The Court specifically noted that the legislature took the time to define ‘child,’ but omitted including stepchildren in the definition as well as the general inference that all statutory omissions were intended by the legislator. As such, Decedent’s Stepson was not able to maintain a claim for wrongful death and the Defendants’ motion was granted.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Brand, et al. v. Bayhealth Med. Ctr., Inc., et al., 2021 WL 3783647 (Del. Super. Ct. Aug. 23, 2021).
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