December 2024

ANNOUNCEMENTS

Wrapping up the Year in Festive Style

Heckler & Frabizzio celebrated another fantastic year at our annual Holiday Party, which was a resounding success! The festive spirit was alive and well, with a day full of joy, laughter, and meaningful camaraderie.

We want to extend a heartfelt thank you to everyone who attended and brought their positive energy. Your presence truly made the event memorable.

As we close out this remarkable year, let’s carry the spirit of teamwork and celebration into the new year. Here’s to even more success, collaboration, and shared moments in 2025!

Employee of the Year

With immense pride and pleasure, we announce the recipient of the 2024 Employee of the Year Award, legal secretary, Charlean Baird! This prestigious honor reflects Charlean’s exemplary performance and embodying the core values that make Heckler & Frabizzio thrive. Congratulations, Charlean! We are grateful for all you do and proud to recognize you as our 2024 Employee of the Year!

2025 Adjuster Education Credits

Heckler & Frabizzio Partners, Maria Paris Newill, and Patrick Rock are hosting a free Ethics virtual seminar on January 24th, from 9 am-12pm. This course is approved for three-hour Delaware Ethics credits. Heckler & Frabizzio Partners, Gregory Skolnik, and Nicholas Bittner are hosting a free virtual Delaware Workers Compensation seminar on February 19th, from 1pm-4pm. This course is approved for three-hour Delaware general credit. Heckler & Frabizzio is looking forward to continuing to offer free continuing education. If you’d like to join us, please email Natalie Bogia, with your National Producer Number (NPN) and Delaware License Number. We hope to see you there!

WORKERS’ COMPENSATION LAW

Too Late – IAB Finds Spinal Radicular Complaints Unrelated Given One Year Gap

Claimant sustained strains of her left shoulder and cervical/lumbar spines on 5/19/21. She was placed on total disability effective 6/29/22. On 11/28/22, she underwent left shoulder surgery by Dr. Mesa. On 6/27/23, there was a defense medical examination with Dr. Matz, who found that claimant could work without restrictions, and any further medical treatment would not be reasonable, necessary, and related. Employer filed a Petition seeking to terminate total disability. Claimant filed a cross-Petition for payment of medical bills after Dr. Matz’s cutoff date, including multiple left biceps, cervical, and lumbar spine injections, as well as L4-S1 fusion surgery.

The Board accepted Dr. Matz’s opinion that there was no left biceps injury, and claimant’s cervical and lumbar spine injuries resolved to pre-injury baseline by the time of his 6/27/23 examination. Dr. Mesa (claimant’s surgeon for the shoulder) did not clearly testify that the biceps was related. Claimant did not complain of cervical or lumbar radicular issues for one year after the event, and there were no radicular findings by her treating doctors for over two years post-accident. When complaints and findings appeared, they were consistent with documentation recorded by claimant’s treating providers in the weeks before the work accident. Claimant had an over 10 year history of neck and back radicular issues. Claimant’s treating provider for the spine, Dr. Eskander, did not adequately address the prior records or substantial delay in spinal radicular complaints/findings. The Board also agreed with Dr. Matz that irrespective of causation, evidence was scant that any of the treatment after 6/27/23 provided functional benefit.

Given the neck and back injuries returned to baseline, the question became whether there were continuing restrictions as to the left shoulder. The Board agreed with Dr. Matz that the type of procedure claimant underwent is not a significant surgery, nor would chronic restrictions be anticipated outside of the six-month post-operative window. The Board felt it was important that Dr. Matz regularly performs this type of surgery and saw claimant three times.

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

Elizabeth Cole v. State of Delaware, IAB Hrg. No. 1511750 (Nov 21, 2024).

EMPLOYMENT LAW UPDATE

Delaware Superior Court Affirms Board’s Decision Based on Substantial Evidence That the Board Has “Substantial Latitude” to Consider Evidence

Claimant worked as an operational supervisor for Employer Aqua Pro, Inc. until May 15, 2023, when he was terminated for misconduct. Employer alleged that Claimant had concerns being available to management and other employees as required, had disappeared from a job site, removed the GPS tracker from his work vehicle, used his company vehicle for personal use, and totaled his company vehicle (and late reported the incident).

As a result of his termination, Claimant filed for Delaware Unemployment Insurance benefits and was disqualified.

Upon disqualification, Claimant filed an appeal to have a hearing before an Appeals Referee. A hearing was held, but the Employer did not appear. Since it was Claimant’s appeal, the hearing proceeded, and the Appeals Referee ruled in favor of the Claimant and qualified him for benefits.

Employer then appealed the decision of the Appeals Referee. Since the record was incomplete due to the Employer’s absence at the first hearing, the Unemployment Insurance Appeal Board remanded the case back down an Appeals Referee to complete the evidentiary record.

A second hearing was held before an Appeals Referee with both parties in attendance, and as a result, the Appeals Referee issued a decision that disqualified Claimant from receipt of benefits.

Claimant appealed to the Board, which commenced a hearing and heard new evidence. The Board affirmed the Appeals Referee’s decision to disqualify Claimant.

Claimant then exercised his right to file an appeal to the Superior Court of Delaware.

The Superior Court generally reviews Board decisions on two grounds. The first is whether the decision based on substantial evidence. The second is whether the decision is free from legal error.

Claimant made no argument on appeal that the Board committed legal error. Instead, Claimant’s argument was that the board relied on “‘fraudulent information provided by [Aqua Pro][sic], fabricated after [he][sic] was terminated.’” As such, Claimant’s argument on appeal was based on the evidence relied on by the Board.

The Court, citing a 1994 Delaware Superior Court case Robbins v. Deaton commented that the Unemployment Insurance statute gives the Board “substantial latitude” in what it can consider as evidence such that the evidentiary record is not limited to evidence submitted at the Appeals Board level.

The Superior Court ultimately held that the evidence supporting Claimant’s termination for just case was supported by substantial evidence by the Employer showing that Claimant was “warned that his performance was suboptimal” and did not improve his performance. Moreover, Claimant “engaged in conduct directly opposed to his employer’s interests” (e.g. removing the GPS unit from his work vehicle).

If you have any questions concerning this case or the Delaware Unemployment Insurance claim procedure, please contact an attorney in our liability department.

William Foreman v. Aqua Pro, Inc. and Unemployment Insurance Appeal Board; C.A. No. K24A-07-001- JJC (Del. Super. December 5, 2024).

LITIGATION LAW UPDATE

Delaware’s Dog Bite Statute: Strict Liability v. Actual Knowledge Requirements

Plaintiff, Shanjulia Sanchez, was halfway through her shift as a postal carrier when she approached the home of defendant, Amanda Hendrix. Amanda had been running errands with her family and they had just arrived back at home for a quick pit stop. Amanda was sitting outside in their parked car awaiting her family’s return as Ms. Sanchez arrived to place mail into the front door mailbox. As Ms. Sanchez was placing the mail, she heard a loud “woof” and saw that the storm door was cracked. She quickly shut the door and ran to the next house. Unfortunately, Midnight, the family’s pit bull, broke through the storm door, chased Ms. Sanchez, and bit her multiple times requiring treatment, x-rays and sutures.

Ms. Sanchez brought suit against Amanda, as Midnight’s owner, and against Kathryn Hendrix, Amanda’s mom and the property owner. Kathryn Hendrix moved for summary judgment.

The Court found that the primary issue concerning Kathryn was whether she had “actual knowledge of Midnight’s vicious nature.” In reviewing Delaware’s dog-bit statute, the Court confirmed that owners of a dog are strictly liable for damages caused by his or her dog, and there is no need for a plaintiff to prove negligence. See 16 Del. C. §3053F. However, a landlord only owes a duty to protect invitees from a tenant’s dog if the landlord is the “harborer of the dog” or if the landlord of the dog’s owner “had knowledge of the dog’s vicious propensities.” (internal citation omitted). While there was some deposition testimony from Kathryn conceding, hypothetically, that a dog could be vicious, the Court determined that more facts needed to be developed and considered by a jury as to Kathryn’s “actual knowledge of Midnight’s vicious propensities.” Summary Judgment was denied.

Sanchez v. Hendrix and Hendrix, C.A. No. N23C-02-077 KMV (Del. Super. Ct., Dec. 13, 2024)