On 8/15/22, Claimant had compensable L5-S1 fusion surgery with instrumentation by Dr. Zaslavsky. On 4/10/25, Claimant filed a Petition to Determine Additional Compensation Due seeking pre-authorization of surgery to have the hardware removed, as well as recurrence of total disability from the procedure date. The Board held a Hearing on 9/30/25, and later issued a Decision denying the request for pre-authorization as unreasonable and unnecessary, accepting the opinion of defense expert Dr. Kahanovitz over Dr. Zaslavsky.

The Board found that claimant was magnifying his symptoms, and this was most likely due to a long period of continual opiate use in relatively high dosages. Despite this medication, Claimant testified he is in excruciating pain. He reported similar pain levels to his physicians for years. Dr. Zaslavsky admitted that there was no indication the hardware was misaligned or malfunctioning. Dr. Zaslavsky attempted to discount arguments about symptom magnification, saying he never personally observed that in his interactions and examinations with claimant. The Board noted Dr. Zavlasky’s own records documented claimant presented “in the fetal position” secondary to alleged pain complaints. Dr. Kahanovitz stated that such presentation did not correlate with any objective finding. There was no evidence of significant adjacent level pathology, the screws haven’t broken, there is no neurologic involvement, etc. Dr. Kahanovitz pointed to several objective tests done at his defense medical examination that evidenced claimant was magnifying symptoms. Dr. Kahanovitz testified that these findings were nearly identical to recorded data and comments made in an earlier defense examination report from Dr. Brokaw, as well as the notes from another doctor.

The Board was also concerned that Claimant testified he expected the hardware removal to resolve all or most of his pain complaints, which were primarily lower extremity radicular in nature. Dr. Kahanovitz was clear that removing the screws and hardware, which do not contact whatsoever with the neurologic structures, would have no impact at all on any type of radicular symptoms.

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

Smiley v. City of Wilmington, IAB Hrg. No. 1514325 (Oct. 24, 2025)

EMPLOYMENT LAW UPDATE

Delaware Paid Leave Claims Period Begins January 1, 2026

On January 1, 2026, employees meeting certain eligibility requirements in the State of Delaware will be able to submit applications to obtain paid leave under Delaware’s Family and Medical Leave Insurance Program.

Delaware’s paid leave program is governed by 19 Del. C. §3701 et seq., which outlines, among other things, the eligibility requirements, duration and amount of benefits, and the delineation of payroll contributions that fund the program.

Employers should be aware that leave under Delaware’s Family and Medical Leave Insurance Program runs concurrently with leave taken under The Family and Medical Leave Act (FMLA).

Moreover, pursuant to the Delaware Paid Leave Frequently Asked Questions employers are responsible for “determining employee eligibility” and “managing the initial claims adjudication process to verify of an employee’s application for leave is justified under the plan.”

Finally, the statute provides for an appeal process appliable to the denial of any claims under the program. After a denial, a claimant can request that the Department of Labor review the determination. If a claimant is dissatisfied with the Department of Labor’s determination, the statute provides for an appeal to the Family and Medical Leave Insurance Appeal Board.

We invite you to contact any attorney in our liability department for assistance in navigating this new administrative claims process in Delaware.

LITIGATION LAW UPDATE

Delaware Court Review of the Necessity for Liability Expert Testimony

Plaintiff, Alyssa Novak, alleges personal injuries following an incident when she caught her pant leg on an exposed screw while riding an escalator at Regal Cinemas. She alleges, in part, that her injuries resulted from the negligence of Kone, Inc., the escalator maintenance contractor. Plaintiff sued both Kone and the property owner, and Kone moved for summary judgment. Kone argues that Plaintiff failed to present a liability expert and thus could not establish a prima facie case for negligence.

The Court reviewed that it will grant summary judgment “where the plaintiff has failed to produce an expert opinion when issues involving the standard of care, defects, or proximate cause relate to matters outside the common knowledge of the jury.” (internal quotation omitted). The standard of care applicable to a professional generally requires expert testimony, “unless the negligence is so apparent that it falls within the common knowledge of a jury.”

The court reviewed the alleged facts of this case. Although there was no dispute that Kone was under a contractual agreement to inspect and maintain the elevator, whether such inspection and maintenance processes were performed negligently would require expert testimony, as such information would be outside the common knowledge of a jury. Because no expert was identified “to guide the Court or the jury in such an analysis” plaintiff could not set forth a case for negligence and summary judgment was granted as to defendant Kone, Inc.

Alyssa Novak v. Regal Cinemas, Inc. and Kone, Inc., C.A. No. N19C-11-137 SKR, October 27, 2025