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Giving Back
Heckler & Frabizzio is proud to support our local medical professionals who are working tirelessly to keep us all safe. The Firm has donated catered meals to our dedicated healthcare professionals. We cannot thank them enough.
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WELCOME GEMMA
Lysa Kaminski, secretary, welcomes Gemma Rose, a boxer puppy to her family. Gemma is a great new co-worker (when she isn’t trying to eat everything in sight) Congratulations Lysa!
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ROCK BOYS
Patrick Rock’s son Dominic graduated from Lineman school in Georgia completing 4 month long program. Congratulations, Dominic!
Patrick Rock’s oldest son Isaiah served several weeks in New York helping COVID-19 patients. Great work, Isaiah!
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WORKERS’ COMPENSATION LAW
IF AT FIRST YOU DON’T SUCCEED, BOARD SAYS DO NOT TRY AGAIN:
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Claimant was involved in a compensable 2003 work accident with an accepted L4-S1 fusion performed in 2005, by Dr. Eppley. Following the surgery, claimant was discharged by her surgeon and referred to pain management. Claimant remained in continuous pain management to the present, with narcotic medications, injections, and various other conservative care. In 2017, Claimant returned to Dr. Eppley, who recommended adding L2-4 to her original fusion, citing suspected adjacent segment disease. Claimant filed a Petition seeking approval of the surgery. Employer filed a Petition seeking to discontinue ongoing narcotic medications.
The Board found that the recommended surgery was not reasonable and necessary treatment, accepting the opinion of defense expert Dr. Fedder over Dr. Eppley. The Board noted that contrary to the rosy picture painted by Dr. Eppley in his deposition as to the outcome of the first surgery, the medical records showed “at best” this procedure caused 30% improvement in claimant’s subjective complaints only. The procedure did not allow claimant to return to work, or reduce her treatment, narcotic medications, and the like. To the contrary, pain management treatment increased and was uninterrupted for years following the surgery. The Board also noted that the proposed surgery would not fix claimant’s multiple unrelated comorbid conditions that significantly impacted her function, such as the need for bilateral knee replacements, rheumatoid arthritis, and morbid obesity. The Board further opined, based upon the testimony of defense expert Dr. Nathan Schwartz, that claimant’s narcotic medications should be discontinued due to lack of functional improvement.
Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.
Carmen Kelley v. First Student, IAB Hrg. No. 1238448 (Apr. 6, 2020).
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EMPLOYMENT LAW
You Got Your Mail
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After Plaintiff was terminated from her employment, she filed unemployment benefits at the Department of Labor. The Claims Deputy found that the Plaintiff was not qualified to receive unemployment benefits and she had until June 13th to file an appeal. Plaintiff claims she did not receive the letter containing the Deputy’s Determination until June 17th, which is when she filed the appeal. The Appeals Referee found that the Plaintiff filed an untimely appeal, which was upheld by the Board without holding a hearing. The Board stated that the Plaintiff was properly contacted by mail at her last known address. Plaintiff then filed an appeal in the Superior Court of Delaware.
Absent an abuse of discretion, a Board’s decision is affirmed if it is without legal error and supported by substantial evidence. Pursuant to 19 Del. C. §3318(b), a Claims Deputy’s decision is considered final unless a claimant files an appeal within 10 days from the date that the decision is mailed to the claimant’s last known address. However, an untimely appeal may still be considered if the claimant demonstrates severe circumstances that prevented a timely filing.
The Court affirmed the Board’s decision as it found Plaintiff presented no evidence that the Department of Labor made any errors and presented no evidence of severe circumstances that prevented her from filing a timely appeal. Therefore, Plaintiff was presumed to receive a proper notice of a hearing, which supports that the Plaintiff’s procedural due process rights were not violated.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Patterson v. Perdue Farms & Unemployment Ins. Appeal Bd., 2020 Del. Super. LEXIS 161 (Del. Super. Ct. April 3, 2020).
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LITIGATION CASE LAW
COURT REJECTS PLAINTIFF’S LOST WAGE ILLUSION
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Nothing tugs on a jury’s heart strings more than a poor rich surgeon being rear-ended at the beach. This Plaintiff, however, was far from an oxymoron. He recognized that on the likeability scale, wealthy beachbound surgeon tracks slightly above a dentist and only a few steps ahead of the least likeable of all, a lawyer.
By way of a short backstory, Plaintiff, a practicing surgeon, was rear-ended by Defendant while at the beach in Lewes, Delaware. Following the accident, Plaintiff allegedly began to experience fatigue, severe anxiety and a lack of sleep which lead to a reduction in his workload and a corresponding drop in his earnings.
To remedy this, the Plaintiff filed suit claiming lost wages as well as other damages resulting from the accident. The catch, Plaintiff did not want to reveal his “significant salary” (his actual words) as a surgeon. He averred that such was not relevant and was overly prejudicial to his claims. In an effort to exclude this evidence from the jury, Plaintiff filed a motion in limine to exclude all references to his gross earnings at trial.
The Delaware Superior Court was not persuaded. The Court found that the Plaintiff’s annual earnings were highly relevant and went directly to the heart of his lost wages claim – whether or not he actually lost wages. The Court held that if Plaintiff chooses to present a claim for lost earnings, such claim must be presented in the full context of his 2016 salary.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Setya v. Petitto, 2020 Del. Super. LEXIS 215 (May 4, 2020)
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