January 2025

ANNOUNCEMENTS

WC Breakfast Seminar

The Delaware State Bar Association (DSBA) will host its annual Workers’ Compensation Breakfast Seminar on Tuesday, January 21st, from 8:30 AM to 12:00 PM at the Chase Center on the Riverfront.

We are excited to announce that John Ellis, Partner, and Greg Skolnik, Partner, will be speaking on a panel to discuss case law updates.

For more information about this event, please visit dsba.org.

Empower Your Workers’ Compensation Expertise with WorkCompCollege.com State-Specific Training Modules

Staying informed about workers’ compensation laws and requirements in your jurisdiction is crucial for effectively managing claims, navigating legal complexities, and upholding ethical standards. The Work Comp College offers a valuable resource to enhance your expertise: the State-Specific Education and Resource Module Program.

Workers’ compensation laws vary significantly across states, making it essential to have a clear understanding of the specific claim, legal, and ethics requirements in the jurisdictions where you operate. The State-Specific Module Program is designed to help you gain in-depth knowledge of state-specific workers’ compensation laws and practices. Stay updated on jurisdictional nuances that impact claim management and I improve decision-making and compliance in your daily operations.

The State-Specific Module system offers Online Courses tailored to individual states, developed with insights from jurisdictional experts. Expert Content that covers essential topics, ensuring practical and actionable knowledge. Certification Opportunities, including a Certificate of Completion that can be applied toward WRP recertification and submitted to other professional associations or educational entities.

 To learn more or enroll in the program, visit WorkCompCollege.com. Elevate your knowledge and stay ahead in your field with this essential resource!

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

Board Finds Cervical & Lumbar Spine Injuries Resolved

Claimant was involved in an accident at work on 12/14/21 with accepted neck and low back injuries. On 11/9/23, Claimant filed a Petition seeking permanent impairment benefits to both the cervical and lumbar spines, relying on the opinion of Dr. Bonner.

After Hearing, the Board issued a Decision finding not only was there no permanency, but any/all neck and low back injuries resolved back to pre-injury baseline. In reaching this conclusion, the Board accepted the opinion of defense expert Dr. Gelman over Dr. Bonner.

The Board found that Dr. Gelman conducted a much more thorough review of the pre-accident records, that showed a multi-year history of chronic cervical and lumbar radiculopathy resulting from multiple prior accidents, and actively symptomatic in the months before the 12/14/21 event in issue. There was no evidence of structural change following the work accident in issue, only a temporary flare of subjective symptoms. The Board questioned Dr. Bonner’s opinion as to an alleged worsening of radicular symptoms post incident and continuing, in part because he failed to perform and document multiple standard tests for radiculopathy when he evaluated claimant for permanency. Dr. Gelman actually performed and recorded these tests, with largely normal findings.

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

Sayles v. Foulk Manor North, IAB #1526111 (Nov. 25, 2024)

EMPLOYMENT LAW UPDATE

Delaware Superior Court Reverses Board’s Decision for Lack of Substantial Evidence to Support the Board’s Decision in COVID-19 Vaccination Separation Case

The effects of the COVID-19 crisis continue to permeate the Courts, especially in the area of employment law. Claimant Debrorah Bentley, a 10-year employee of A.I. Dupont Hospital (“Employer”), was separated from her employment for declining a COVID-19 vaccination. Note, however, that Ms. Bentley worked during the pendency of the virus crisis as a patient services representative, “contracted Covid [sic], recovered, and went back to work.”

The Employer mandated its employees to take a COVID-19 vaccination unless an employee filed a religious or medical exemption. Claimant Bentley’s reasons for declining the vaccination “did not fit neatly into either category.” Because of that Claimant did not feel that she could file for an exemption.

On October 7, 2021, Claimant Bentley was offboarded by the Employer and such process was uneventful. Claimant Bentley then requested a termination letter from the Employer and it did not provide one.

After being separated from her employment, Claimant Bentley filed a Delaware Unemployment Insurance claim, stating that “she was unemployed ‘for not getting the vaccine.’” The Employer, through a third-party administrator, advised the Delaware Department of Labor’s Claims Deputy that Claimant Bentley was merely “‘not qualified’” for unemployment benefits.

The Claims Deputy disqualified Claimant Bentley from receipt of unemployment benefits citing that Claimant quit voluntarily.

Claimant Bentley then filed an appeal of the Claims Deputy’s Determination, and a hearing was held before an Appeals Referee. The Employer did not appear at the hearing. Moreover, the Appeals Referee altered the Claims Deputy’s classification of the case from a voluntary quit case to a termination case.

The Appeals Referee held that Claimant Bentley was terminated with just cause for not following Employer’s vaccination policy.

Claimant Bentley appealed the Referee’s Decision to the Delaware Unemployment Insurance Appeals Board. A hearing was held, and the Employer did not appear. The Board did not follow the Appeals Referee’s classification that Claimant was terminated with just cause. The Board instead found that Claimant Bentley voluntarily quit her job because she chose not to file a religious or medical exemption related to the vaccine mandate.

Claimant Bentley appealed the Board’s Decision to the Delaware Superior Court for its review of whether the “Board’s decision is supported by substantial evidence and free from legal errors.”

The Superior Court held that Claimant Bentley did not voluntarily quit her job and noted that “the Board spent some time considering whether her quitting was for “good cause,” concluding that it was not, but passed on the important term ‘voluntary’ as if it were not there at all.”

The Superior Court, more importantly, provided three reasons why it could not affirm the Board’s decision on alternative grounds. First, the Court identified that the Board did not make a Decision that the Claimant was terminated for just cause. That issue, therefore, a just cause determination is unreviewable by the Court.

Second, no alternative rationale was “fairly presented” in the lower hearings. The Court reasoned further that “[the] Board’s ruling of ‘voluntary quit’ was spun up by the Board itself without input from the parties.”

Third, the Court reasoned further that “whether Claimant was fired for just cause is not on particularly strong ground either.” Specifically, “the Referee did not explain why an accommodation that was being made available for those employees who rejected the vaccine on religious or medical grounds would not be made for those refusing on ‘personal’ grounds.” More importantly, however, is that fact that the Employer’s record below was deemed “scant” by the Court in that the Court questions whether the Employer met its burden of proof on a just cause termination analysis.

Because of, but not limited to these reasons, the Superior Court reversed the Board’s Decision and remanded the case back to the Board for further proceedings.

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

Deborah Bentley v. A.I. DuPont Institute & Unemployment Insurance Appeals Board; C.A. No. N22A-09-001 CEB (Del. Super. January 7, 2025)

LITIGATION LAW UPDATE

No “Mutual Mistake” Exists when Parties have Knowledge of “Indicia of Injury”

Six days after a motor vehicle accident, the injured claimant/Garnett signed a release forever discharging the tortfeasor/Cote from “any and all claims . . . known and unknown . . . which have resulted or may in the future develop” as a result of the accident in exchange $1,160 plus payment of medical expenses. At the time the release was signed, Garnett had treated at the emergency room for injuries to her low back and had been recommended for follow up within three to five days.

Just shy of two years after signing the release, Garnett filed suit. Cote filed this Motion to Dismiss (converted to a Motion for Summary Judgment), citing the executed release. Garnett responded, contending a mutual mistake existed such that the release should be vitiated. The Court considered that releases will generally be upheld, unless the product of fraud, duress, coercion, or mutual mistake. The Court continued that mutual mistake requires a showing that “(1) both parties were mistaken as to a basic assumption, (2) the mistake materially affects the agreed-upon exchange of performances, and (3) the party adversely affected did not assume the risk of the mistake.”

In considering whether a future recommendation for further treatment was sufficient to void the release, the Court reasoned “the future unknowable effect of existing facts, . . . or a mistake as to the future effect of a personal injury” is not enough. In this case, both parties were aware of a low back injury, and Garnett had already been referred for follow-up treatment, such that Garnett knew that “an indicia of injuries exist[ed] at the time [she] signed the release.” There was no mutual mistake as to the presence of an unknown injury that would support invalidating the release, and Cote’s Motion for Summary Judgment was granted, accordingly.

Garnett v. Cote, C.A. No. N24C-01-138 SPL (Del. Super. Ct., Jan. 7, 2025)