Claimant was involved in a work related accident on 9/24/21 involving the neck, and various right arm fractures. In 2024, Dr. Eskander recommended C4-5 fusion surgery, which proceeded on 8/26/24. Claimant filed a Petition seeking payment of the surgery and associated period of total disability. Following Hearing, the Board denied Claimant’s Petition, relying on the testimony of defense expert Dr. Neil Kahanovitz.

Dr. Kahanovitz agreed there was a neck injury with continuing symptoms. What he found to lack sufficient support was Dr. Eskander’s focus on C4-5 and the C5 nerve as the source of complaints and the decision to perform surgery to address same. Dr. Kahanovitz reviewed the MRI films, which did not show any nerve root compression at C4-5, consistent with the interpreting radiologist’s reading. There was an EMG positive for mild C5 and C7 radiculopathies, but EMGs alone should never be used to justify surgery due to the high amount of false positives and negatives. Dr. Kahanovitz’s examination findings did not support C5 nerve compromise. There was no deltoid weakness on examination. Only Dr. Eskander found deltoid weakness, but that first appeared two years post accident. At Dr. Eskander’s prior examination in 2021, he found triceps weakness, which correlates with C7, not C5. Dr. Eskander claimed flexion-extension x-rays showed instability at C4-5, but that was not consistent with the radiologist’s readings of the same x-ray, or the CT scan done around the same time.

A different surgeon in Dr. Eskander’s office, Dr. Patel, saw claimant within one month of Dr. Eskander’s surgical recommendation, but did not think there was a C4-5 surgical problem. Dr. Patel recommended surgery to a different level, C7-T1. When asked about the different surgical opinions at Hearing, claimant was under the impression Dr. Eskander and Dr. Patel were recommending the same surgery. Another physician in Dr. Eskander’s office, Dr. Rowlands, saw claimant multiple times between 2021-2024 and never made examination findings consistent with C5 radiculopathy. Two defense medical examinations with Dr. Gelman in 2023 did not identify complaints or findings consistent with C5 radiculopathy.

The Board discounted Dr. Eskander’s testimony that cervical injections were diagnostic of a C5 radicular problem as he admitted that the injections were administered at C7-T1 in a manner where the steroid would treat the entire cervical spine.

Dr. Eskander claimed his intra-operative report documented instability and bulging at C4-5 with a tear in the posterior longitudinal ligament, but Dr. Kahanovitz pointed out that the report did not document any finding of C5 nerve root compression.

Although claimant testified that post surgery his symptoms got better, he claimed his main area of improvement was his right hand pain went away. As Dr. Kahanovitz testified, the C5 nerve does not innervate past the elbow to the hand. Dr. Eskander’s medical records documented a higher neck disability index in January 2025 as compared to pre-surgery.

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

Jose Reynaga-Villagomez v. FER & JOA Construction, Inc., IAB Hrg. No. 1517047 (June 30, 2025).

EMPLOYMENT LAW UPDATE

Delaware Supreme Court Affirms Superior Court’s Judgment in Gary v. Wausau Financial Systems, Inc.

On November 7, 2024, the Delaware Superior Court issued an Order affirming the Delaware Unemployment Insurance Appeal Board’s Decision to disqualify Claimant Gary from receipt of unemployment benefits.

As a condition of Claimant’s separation from employment she was presented with a settlement agreement that contained a voluntary resignation clause. Claimant (as stated in the Superior Court order), “accepted the benefits of the settlement agreement, to wit, a $58,000 check, a letter of reference, and other benefits. She has not returned them.” The Superior Court also reasoned that the Claimant could not argue that she was involuntarily separated (under duress) and qualified for benefits while still retaining the benefits that flowed from the settlement agreement.

On June 26, 2025, the Delaware Supreme Court issued an Order affirming the November 7, 2024 Order of the Delaware Superior Court for the reasons that the Delaware Superior Court identified in its November 7, 2024 Order.

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

Constance Gary v. Wausau Financial Systems Inc./ Deluxe Corp. & Unemployment Insurance Appeals Board; No.: 509, 2024 (Del.  June 26, 2025)

LITIGATION LAW UPDATE

Forum Selection Clauses: Mandatory v. Permissive Distinctions

Defendant Coronados Pool Plaster, Inc., a pool repair company, entered into a Contract with the Nachbars to re-tile and re-plaster their home pool. Defendant allegedly failed to remove hydrostatic plugs prior to re-tiling, resulting in leaks, thus bringing rise to this litigation. The Contract contained a forum selection clause stating: “This Contract shall be governed by the laws of the Commonwealth of Pennsylvania, with jurisdiction and venue for actions pertaining to this agreement being vested in [specified county court]. Customer agrees and consents to jurisdiction and venue and waives an objection thereto.” Suit was filed in Delaware, and Defendant motioned to dismiss for improper venue.

This Court analyzed permissive versus mandatory forum selection clauses and concluded that the Contract clause provides only permissive forum selection. Specifically, the Contract clause “authorize[s] jurisdiction and venue in a designated forum, but do[es] not prohibit litigation elsewhere.” For there to be mandatory forum selection, Delaware law requires “crystalline terms” that such chosen forum is exclusive. The Court considered that words like “vest” would grant or endow a particular right to a forum, but do not exclusively limit the authority of other forums. Of note, the Court analyzed this Contract provision under both Delaware and Pennsylvania law, and concluded forum selection would be permissive under the laws of both states.

Because the forum selection clause was found to be permissive, it did not preclude litigation in Delaware, and Defendant’s motion to dismiss was denied.

Kenneth Nachbar & Kathryn Nachbar v. Coronados Pool Plaster, Inc., C.A. No. N25C-01-165 SKR, July 2, 2025