July 2024

ANNOUCEMENTS

Welcome to the Bar!

We are thrilled to announce that Heather McKee, our talented associate attorney, was officially sworn into the Delaware Bar on June 26th. This significant achievement marks a milestone in her legal career, and we couldn’t be prouder. Please join us in congratulating Heather on this outstanding accomplishment!

Fundamentals of Lawyer-Client Relations

The Delaware State Bar Association (DSBA) hosted a Continuing Legal Education (CLE) seminar on the Fundamentals of Lawyer-Client Relations on June 18th. Gregory Skolnik, a partner at Heckler & Frabizzio, was a featured speaker at the event, presenting on Law Office Practice.

Adjuster Education Credits

Heckler & Frabizzio Partners, Amy Taylor, and Miranda Clifton are hosting an Investigations virtual seminar on November 5th, from 10am-12pm. Heckler & Frabizzio Partners, Gregory Skolnik, and Nicholas Bittner are hosting a virtual Terminating WC seminar on November 14th, from 2pm-3pm. This course is approved for a one-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!

Keeping Up with H&F

Law Day 2024

Sharon Arlington, Secretary, was awarded the Myrna L. Rubenstein Award at the DSBA’s annual Law Day.

In 2023, Sharon Arlington,

Secretary, celebrated her 40th year of service at Heckler & Frabizzio, a truly tremendous accomplishment. When Sharon began her legal career at Heckler & Frabizzio in 1983, times were different. Two of our seven current partners had yet to be born, and another two were toddlers. Sharon’s job title, legal secretary, was much more than that. The job duties included: Typing dictation on a ribbon typewriter with carbon paper for copies. Gregory Skolnik, Attorney, presented the award, and Anthony Frabizzio accepted on behalf of Sharon. Congratulations, Sharon!

Signing for Joy!

Our dedicated team, consisting of Maria Pairs Newill, Partner, Tanisha Webster, Law Clerk, and Monique Hedrick, Finance, delivered an inspiring and informative session for the kids, discussing future careers in law and offering invaluable advice on interview attire. Monique added a special touch by singing with the children, creating a memorable experience for everyone. We deeply appreciate Maria, Tanisha, and Monique’s enthusiasm, cooperation, and professionalism, which proudly represented our firm. Congratulations to all for making this event a remarkable success!

WORKERS’ COMPENSATION LAW

Superior Court and IAB Agree, You Cannot be Surprised by Your Own Medical Records

In a Petition filed January 23, 2023, claimant alleged that she developed Chronic Inflammatory Response Syndrome (“CIRS”) as a result of mold exposure at her workplace. Claimant suffered from a variety of treatment resistant symptoms and was diagnosed with CIRS by her functional medicine physician, Dr. Matta. His theory was that mold in claimant’s workplace was causing her chronic symptoms. Her employer, Athletico Physical Therapy, argued that CIRS is a broad diagnosis with many potential causes, and that it would be impossible to identify the origin of the symptoms and whether the diagnosis stemmed from the workplace or if its roots were elsewhere.

In order to prove that her CIRS was an occupational illness, claimant needed to establish that the CIRS was a natural incident of her occupation at Athletico Physical Therapy, such that working there presented a risk that was distinct and greater than employment in general; however, evidence brought to light at hearing poked holes in the idea that her condition began at work.

Testimony by claimant’s treating physician and the employer’s medical expert, Dr. Gelman, revealed that her blood contained traces of twelve types of mold, only four of which were found at her job; the mold that was found at her job was common to indoor environments and only slightly above the normal range; her workplace and around her home displayed similar quantities of the same types of mold; and the mold that had the highest concentration in her blood was not present at her workplace. Additionally, claimant had a plethora of other medical conditions that could have contributed to a CIRS diagnosis, and her symptoms began while she was on vacation in Florida – not while she was at work. Lastly, Dr. Matta conceded under cross-examination that he could not identify which of the twelve types of molds found in claimant’s blood were the actual cause of symptoms, nor could he exclude any as the culprit.  Because of these reasons, the Board denied the Petition outright, stating that claimant had failed to show that the conditions in her workplace were a distinct hazard, worse than employment in general and capable of leading to a diagnosis of CIRS on their own.

 Should you have any questions regarding this decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.

Elena Doherty v. Athletico Physical Therapy, IAB No. 1532122 (May 29, 2024)

EMPLOYMENT LAW UPDATE

Superior Court Affirms Board’s Finding of Termination for “Pattern of Unprofessional Conduct”

Claimant was employed as a human resources director until being terminated his employer on April 28, 2023. Claimant was terminated due to “‘a pattern of unprofessional conduct, insubordination, and poor job performance’” concerning Claimant’s production of required monthly reports.

Claimant applied for unemployment insurance benefits and was qualified for benefits by a claims deputy. Employer appealed the deputy determination, and at the appeals hearing that followed, Claimant was disqualified from benefits.

Claimant appealed to the Unemployment Insurance Appeals Board and argued that the appeals referee relied on hearsay evidence and that the Employer’s witness made misrepresentations at the lower appeal hearing.

The Board agreed with Claimant as to the existence of hearsay evidence but otherwise found that there were “‘other performance deficits’” identified in non-hearsay correspondence between the Claimant and the Employer’s witness. The deficits rose to the level to meet Employer’s burden for termination for just cause.

Claimant then appealed to the Superior Court of Delaware and argued that the Board based its decision on hearsay, that Employer did not warn him that his job was in danger, and that certain findings of the Board were erroneous.

The Court affirmed the Board’s decision. In doing so, the Court highlighted the Board’s ability to “‘admit and consider hearsay evidence,’” distinguishing however that the Board cannot “‘base its decision solely on hearsay.’” Nevertheless, in Claimant’s case, there was “credible [non-hearsay] evidence to support the Board’s finding of just cause.”

As to Claimant’s argument on his termination notice, the Court maintained that “as a general rule, ‘employees are entitled to some notice that their performance is unacceptable before being discharged.’” Furthermore, “the warning need not explicitly state that termination may result from one’s repeated misconduct.” In this case, Claimant was rendered a final warning.

Claimant argued that there was a four-month period that passed between the warning and his termination which he argued would preclude a finding just cause. The Superior Court referenced Delaware Supreme Court caselaw holding that an employer can rely on prior misconduct in a later termination decision.

Claimant’s argument about the Board’s erroneous findings was dismissed as the findings at issue were deemed non-dispositive by the Court such that such findings do not disrupt the Board’s other findings that were sufficient for a just cause finding.

The Court ultimately held that the board “permissibly found that [the Claimant] willfully disregarded his responsibilities and the expectations set by the employer.”

David I Bull v. Unemployment Insurance Appeals Board and First State Community Action Agency; C.A. No.: K23A-12-002 JJC (Del. Super. Ct. June 24, 2024)

LITIGATION LAW UPDATE

A Truck that Does It All!!! (Just Don’t Expect Insurance to Pay If You Get Hurt)

The Delaware Superior Court granted USAA’s motion for summary judgment, finding plaintiff was not entitled to PIP benefits because the vehicle was not an “active accessory” in causing his injuries. In this case, plaintiff intended to repair a rotted section of garage roof. He backed his pickup truck up to the garage building, placed a ladder on the bed of his truck, and leaned the top of the ladder against the garage roof. While climbing the ladder, it slipped within the truck bed and plaintiff fell sustaining injuries.

The parties agree that plaintiff was not an “occupant” of the vehicle so that the two-part occupancy test of National Union Fire Insurance Company of Pittsburgh v. Fisher was not applicable. The court then went on to analyze whether the accident “involved” a motor vehicle under the two-part Kelty v. State Farm Mutual Automobile Insurance Company test. Under Kelty, 1) the involved vehicle must be “an active accessory” in causing the injury; and 2) the causal connection between the use of the vehicle and the injury must not have been broken by an independent act. The first prong requires “something less than proximate cause” but “more than the vehicle being the mere situs of the injury.”

The Court performed a factual comparison to other Delaware cases and ultimately concluded that the pickup was not an “active accessory” in causing the injuries. The truck bed was being used as a stationary platform to extend the ladder’s reach, and the truck was not being used “as a truck.” Therefore, the court concluded that the truck was merely the situs for the accident and not an “active accessory.” Defendant’s motion for summary judgment was granted, and plaintiff was not entitled to PIP benefits for his injuries.

USAA Casualty Insurance Company v. Henry Hamilton, C.A. No. N23C-08-084 FWW (Del. Super. Ct., July 8, 2024)