May 2024

ANNOUCEMENTS

Workers’ Compensation Seminar

On May 7th, Heckler & Frabizzio attorneys Maria Paris Newill, Gregory Skolnik, Nicholas Bittner, John Ellis, John Morgan, Carmella Cinaglia, and Heather McKee attended the annual DSBA Workers’ Compensation Seminar. Maria Paris Newill, Gregory Skolnik, and John Ellis were esteemed speakers at this annual event.

2024 law Day

Sharon Arlington, Secretary, was awarded the Myrna L. Rubenstein Award at the DSBA’s annual Law Day on May 9th for her long and dedicated service to the Bench and Bar of the State of Delaware. Gregory Skolnik, Attorney, presented the award and Anthony Frabizzio accepted on behalf of Sharon. Congratulations, Sharon!

Diversity Scholarship

Heckler & Frabizzio is offering a $5,000 scholarship to a minority student who is currently looking to further their education in the legal field with a connection to Delaware. The rising cost of education continues to be a hardship many minorities struggle to overcome. Heckler & Frabizzio believes that by helping diverse legal professionals overcome those struggles, our world can become a brighter place for future generations in our community. We are seeking a candidate who demonstrates a commitment to diversity, the Delaware community, and a passion for the legal field. For more information, please contact Page Chase.

Keeping Up with H&F

Juris Doctorate

Marissa Lelii, Law Clerk, graduated from Widener School of Law on May 17th. Marissa has a bright future ahead of her. Now the fun begins. Congratulations, Marissa!

Rising Star

Alison Chapman, Paralegal, Is proud of her son Alexander Chapman who was inducted into the National Junior Honor Society in April 2024. Congratulations, Alexander!

H&F went to Prom

Heather McKee, Teryn Shipman, and Tanisha Webster, Law Clerks; Natalie Bogia, Monique Hedrick, Finance; and Chelsea Momot, Paralegal, served as Paparazzi at the Journey’s Church King & Queens Prom on May 3rd. They played a crucial role in making every guest feel like royalty walking into prom.

WORKERS’ COMPENSATION LAW

“Eye” Spy With My Legal Eye

On February 29, 2020, a locker fell on claimant at work resulting in a left orbital fracture. Claimant later filed a Petition to Determine Disfigurement to the “face/eye.” At Hearing, claimant pointed to alleged scarring around the eye area and also contended that the eye had a sunken type of appearance.  The Board awarded one week of benefits for ½ inch of scarring on the bridge of the nose, despite the prominent location on the face. There was no award for any sunken eye issue. The Board explained that any alleged disfigurement was quite minimal and difficult to perceive. There was no award for attorney fees as the amount offered for the 30-day rule deadline was in excess of the one-week award.

Should you have any questions regarding this decision, please contact Carmella Cinaglia or any other attorney in our Workers’ Compensation Department.

Mark Boulware v. Five Star Senior Living, IAB Hrg. No. 1496839 (March 21, 2024).

EMPLOYMENT LAW UPDATE

Superior Court Affirms Board’s Findings That Claimant Falsified Her Time Sheet

On November 20, 2023, the Delaware Unemployment Insurance Appeal Board (a five-member panel appointed by the Governor) denied the unemployment claim appeal of Thomas Davis because it was untimely.

Decisions of the Board are appealable into the Superior Court of Delaware, and on December, 4, 2023, Davis filed an appeal in the Superior Court within the prescribed time to do so.

Davis submitted an opening brief to the Superior Court on February 28, 2024, but it did not contain any argument concerning the Board’s denial Decision from November 20, 2023.

On March 18, 2024, the Court issued a letter to Davis requesting that he re-submit his opening brief to specifically address the November 20, 2023 Board Decision. The Court did not receive a response from Davis as of April 29, 2024.

The Superior Court relied on Superior Court Rule 107(f) to dismiss Davis’s appeal due to Davis’s failure to cure the deficiencies in his opening brief. The Court commented further “that ‘there is no different set of rules for pro se plaintiffs, and the trial court should not sacrifice the orderly and efficient administration of justice to accommodate an unrepresented plaintiff.’”

Furthermore, the Court held that, concerning appeals to the Delaware Unemployment Insurance Appeal Board, “‘the time for filing an appeal is an express statutory condition of jurisdiction that is both mandatory and dispositive.’”

In cases where the appeal delay was caused by administrative error by the Department of Labor, there could be relief found; however, without such administrative error, when deputy decisions become final, there is a statute based jurisdictional bar to further review.

Ultimately, the Court held that the Board “has broad discretion to consider any appeal” and that its denial of the Davis appeal to the Board was not an abuse of the Board’s discretion.

If you have any questions regarding this decision, especially the timing of unemployment claim appeals, please contact any attorney in our liability department.

Thomas Davis. State of Delaware Unemployment Insurance Appeal Board; C.A. No.: N23A-11-049 JRJ (Del. Super. Ct. April 29, 2024)

LITIGATION LAW UPDATE

When Does A Mold Related Injury Accrue for Purposes of Delaware’s Two-Year Statute of Limitations?

Wayne West and Cynthia West v. Patterson-Schwartz & Assoc., Inc., et al, C.A. No. N21C-08-265 MAA (Del. Super. Ct., May 10, 2024)

The Delaware Superior Court analyzed Delaware’s two-year statute of limitations for personal injury claims, thus finding Mr. West’s claims for mold related injuries to be time barred. Mr. West filed suit for mold related injuries on August 30, 2021 against the property owners of his long time place of employment.

Records indicate that Mr. West began experiencing sinus related medical issues in 2006, and he began reporting these increasing health complaints as well as concerns about a leak in the office ceiling to the office manager as early as 2014. Mr. West continued to report increasing symptoms while present in the office, but the office manager routinely dismissed Mr. West’s complaints, indicating that no one else from the office was sick. In an effort to identify the source of his symptoms, Mr. West had his home tested for mold and other substances in 2016 and nothing was identified. In July of 2019, Mr. West was officially diagnosed by his physician as having mold allergies. In October of 2019, on a particularly rainy day, Mr. West had additional trouble breathing while at the office, prompting him to take photos of water dripping which he emailed to the office manager again advising of his concerns about mold. This prompted an investigation and mold was officially identified at the office on October 29, 2019.

Delaware follows the “occurrence rule” such that “an action accrues at the time of the wrongful act, even if the plaintiff is ignorant of the cause of action.” Mr. West likened his claim to one for asbestos exposure and argued that the statute of limitations would be tolled “when the injury is inherently unknowable and the claimant is blamelessly ignorant of the wrongful act and injury complained of.” Mr. West argued that the injury was unknowable until such time as mold was affirmatively identified on October 29, 2019. The Court disagreed and found that Mr. West had inquiry notice – – meaning “there is a ‘red flat’ that ‘clearly and unmistakably’ would lead a prudent person to investigate and thereby discover the basis for the cause(s) of action alleged.” Unlike with asbestosis, which typically has a long latency period, Mr. West’s symptoms were observed contemporaneously with his presence at the office. At the very latest, the statute of limitations would begin to run when he was diagnosed with his mold allergy in July of 2019, and prior to the official identification of mold in October of 2019. Summary Judgement was granted in favor of defendants.