As to the claimaint’s credibility, she did not disclose any prior injuries on the Statement of Facts Upon Failure to Reach an Agreement form, signed under penalty of perjury, and submitted with her Petition. However, she had longstanding cervical spine problems with right sided radiculopathy stemming from a 2015 car accident that Dr. Witherell had opined was permanent in 2018. She treated for this condition within 6 months of the alleged August 2023 event, where she was again diagnosed with right sided cervical radiculopathy and prescribed gabapentin, a nerve pain medication. Nevertheless, when she presented to defense medical examinations with Dr. Kahanovitz after the August 2023 event, she again emphatically denied prior conditions with the neck.

Claimant’s medical records in the about 6 weeks after the work event also contributed to undermining her credibility since there were varied accounts of her onset. At her first visit to an urgent care facility, she said she “woke up” like this. Her next visit was with her primary care doctor, who recorded that her problems were a continuation of her post 2015 car accident symptoms, and ordered an EMG. The EMG provider recorded that there was a “sudden onset” of symptoms and did not list work as a precipitating factor. She returned to her primary care doctor days later who recorded claimant thought she slept on the right arm wrong. At Dr. Boulos’ first visit, claimant completed intake paperwork asking how her symptoms started, and she explicitly wrote: “I woke up like this.” It was not until after a 10/10/23 visit with Dr. Ozturk, another surgeon, in Philadelphia, that claimant reported to employer that she thought she had hurt herself at work lifting on 8/31/23.

The Board noted that Employer did not carry the burden to identify any non-work-related alternative cause, but accepted Dr. Kahanovitz’s opinion that her August 2023 problems were a continuation of her longstanding cervical radiculopathy arising from her 2015 car accident.

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

Donovan v. State of Delaware, IAB Hrg. No. 1540022 (Sept. 23, 2024)

EMPLOYMENT LAW UPDATE

Delaware Superior Court Affirms Unemployment Insurance Appeal Board’s Reliance on Employee’s Post-Termination “Offensive Finger Gesture” to Weigh Claimant’s Demeanor and Credibility

In July 2023, Employer Walmart Associates, Inc. terminated Claimant Matthews for insubordinate conduct. Claimant Matthews filed for Delaware Unemployment Insurance Benefits and was deemed qualified by a Department of Labor Claims Deputy.

The Claims Deputy’s determination was appealed, and after a lower authority hearing, an Appeals Referee decided that Claimant was disqualified from receipt of benefits.

Claimant exercised his appeal right to the Unemployment Insurance Appeal Board and the Board held a hearing on whether Employer had just cause to terminate Claimant Matthews.

Two witnesses for Employer “testified that Mr. Matthews committed insubordination for refusing to follow a directive.” Moreover, the refusal was a violation of Employer’s code of conduct. There was also testimony from the Employer that the particular insubordination event was not the first time Claimant had been insubordinate at work for the Employer. (Patterns of misconduct are significant in termination cases.)

Claimant Matthews contended that he had started a break period before he was directed to speak with a supervisor “and that he intended to follow through with the direction immediately after his break.”

The Board affirmed the Appeals Referee’s decision to disqualify Claimant from receipt of benefits because the Employer met its burden of proof and that Claimant was found not credible.

Claimant Matthews appealed the Board’s Decision to the Delaware Superior Court.

Claimant Matthews argued to the Superior Court that the Board, among other things, based its decision on conduct of Matthews that occurred after Matthews was terminated. The post-termination conduct is identified as Claimant’s use of “an offensive finger gesture.”

The Superior Court held that the Board relied on substantial evidence in its decision to affirm the Appeals Referee’s decision.

Furthermore, as to the finger, the Superior Court pointed to Section 1201–4.7 of the Delaware Administrative Code that allows the Board to “consider any relevant evidence relating to any issue raised below, whether or not that issue was decided by the Hearing Officer.”

The Superior Court explained further that the use of the gesture was “inextricably intertwined conduct” as to the termination event that the Board relied on without abuse of discretion “for the limited purposes of (1) assessing Mr. Matthew’s demeanor during the relevant event, and (2) his credibility.”

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

Tyrese Matthews v. Unemployment Insurance Appeal Board and Walmart Associates, Inc. C.A. No. K24A-04-002 JJC (Del. Super. October 7, 2024).

LITIGATION LAW UPDATE

The Elements of Fraud Include Fraud Specific Damages

On July 11, 2023, Plaintiff hired Defendants to perform construction work on a home. Plaintiff alleges that Defendants failed to complete the contracted for work prior to agreed upon deadlines, and that the completed work was not performed correctly, nor up to code. On February 9, 2024, Plaintiff filed suit alleging breach of contract, and breach of the implied covenant of good faith and fair dealing. Plaintiff subsequently amended the complaint to add claims for fraud. Defendants then filed Motions to Dismiss all claims.

Following a brief analysis, the Court determined that the pleadings were sufficient to demonstrate the existence of a contract (either express or implied), breach of an obligation imposed by the contract, and damages resulting from the breach. Of note, the Court observed that the damages alleged for purposes of the breach of contract claims included the amount paid to the Defendant contractor, the amounts paid to other contractors for corrective the required corrective work, plus attorney’s fees.

In turning to the claims for fraud, the Court reviewed five required elements and determined that Plaintiff failed to plead separate fraud damages, stating “allegations of damages based on fraud may not simply rehash the damages allegedly caused by the breach of contract.” (internal citations omitted). While the Court agreed that the first four elements of fraud were sufficiently plead (including: 1) a false representation of material fact; 2) the defendant’s knowledge of or belief as to the falsity of the representation or the defendant’s reckless indifference to the truth of the representation; 3) the defendant’s intent to induce the plaintiff to act or refrain from action; and 4) the plaintiff’s action or inaction taken in justifiable reliance upon that representation), the damage to plaintiff as a result of such reliance was not alleged to be anything more than the damages already set forth in the breach of contract claims.

Having found that damages specific to the claims for fraud were not sufficiently alleged, the Court dismissed Plaintiff’s fraud claims, but allowed the claims for breach of contract to proceed.

Arden Investments, LLC v. Johnathan Lebron and Lebron Construction LLC, C.A. No. N24C-02-098 JRJ (Del. Super. Ct., Sept. 19, 2024)