Workin’ on the Down Low……………and a Decision in Guardado v. Roos Foods

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 By: Cassandra Faline Roberts

 You gotta love those Men of Mondell and their ever-capable confrere Elissa Greenberg.  The work comp defense bar can always count on them to carry the banner of our cause with considerable aplomb and a skill set that most would envy in terms of legal acumen and persuasiveness.  And in the instant case, a behemoth of an adversary……none other than Walt Schmittinger, whose Daddy was, in my estimation, the Dean of the Claimant Comp Bar……. So the stage was set for perhaps the battle of the century, the long-awaited Remand Hearing in Magdalena Guardado v Roos Foods, IAB 1405006 (51817).

Bottom Line: The employer prevailed, with a labor market survey in tandem with testimony from Dr. Desmond Toohey, Associate Professor of Economics at the University of Delaware. The vocational rehab specialist was Ellen Lock of Coventry.  The Employer’s Petition for Review as granted as of date of decision and the labor market survey was able to match the pre-injury wage basis, so there was no concomitant award of temp partial.

Of note, there was a preliminary ruling that the claimant was a prima facie displaced worker. The injured worker, testifying with the assistance of an interpreter,  arrived in the United States in 2004 but had only been employed for the last 5 years– by Roos Foods, where her duties were essentially unskilled labor.  She had a fused left wrist as a result of the work accident, and wore a brace on her non-dominant hand.  Had the claimant not achieved prima facie displaced worker status, the Board would not have deemed her to be actually displaced, given a lackluster job search consisting of 11 employment applications “unduly restricted to a single industry (restaurant/food services).”

However, the Board also embraced the “reliable market evidence” mandated by the Supreme Court’s earlier decision,  consisting of the data and testimony of Dr. Toohey, juxtaposed with the labor market survey.  Some of the benchmarks of job availability included the following:

  • Of the approximately 28,000 undocumented workers in the State of Delaware,  roughly 80% of those are gainfully employed.
  • Of the various occupations and industries identified in the labor market survey, Dr. Toohey testified that “there are several thousand unauthorized immigrants in each.”
  • The total labor force in Delaware is 500,000-600,000, and the undocumented worker population is approximately 20,000-25,000 workers.
  • Vocational testimony included the observation that the  need for Spanish-speaking employees is on the rise.

So back to my Men of Mondell, who were asked to weigh in.  From Andy Carmine:

My first comments are that Gary and Elissa deserve the props as their work on the briefs and preparation for the hearing on remand made the difference. In my opinion, the Supreme Court’s decision and the Board’s application of that decision provide a fair and equitable remedy for addressing the issue of undocumented workers’ entitlement to ongoing total disability benefits, as the door is not closed on either party moving forward. There will be undocumented claimants who are able to meet their burden to establish themselves as displaced workers and employers that are able to successfully rebut that contention . That is the way the displaced worker doctrine should be applied, rather than an across-the-board disqualifying factor.  

And from his partner Gary Baker:

As Andy noted, I think the biggest thing to come out of this is the rejection by the Supreme Court of the per  se displacement of all undocumented claimants.  However, as to yesterday’s order, the expectations of the Court in terms of what the employer had to prove in order to satisfy job “availability” from a statistical/sociological perspective were far from clear and still subject to further evaluation.  Andy did a superb job of identifying an expert, and meeting the burden of proof on an untested legal proposition and coming out on the winning side.  However, I suspect there are still more chapters to this story.

I agree with Gary that we have not seen the last of the challenge on this issue.  To the extent that Walt appeals, I will keep you posted.

CaseLaw Update Round-up

 By Cassandra Roberts, Esq. 

As promised, I am continuing to make CaseLaw Update available through the Detour & Frolic.  And  because I never met a case I didn’t like, I give you the following highlights……………..

From the January 18, 2017 Update:

  • Dental Disfigurement due to missing teeth from heavy narcotic usage for work-related injury, check out Virgil Pugh & Kieran Sniadowski
  • DME doc Fedder trumps treating doc  Rudin in a surgery case  in Barbara Zakarewicz
  • There is no such thing as an after-the-fact  “payment without prejudice”, see Ivan Taylor
  • In another “Chris Baum Cherishable”,  the Brenda Boyce decision contains a mini-treatise on the standard required for Res Judicata and Collateral Estoppel
  • Priors on the down low…..IAB rescinds Agreement as to Comp where Claimant less than candid as to his pre-existings in Christopher Moore
  • Taking a ride on the “resolved train” are Tamaryn Gardner and Kenyatta Brooks
  • Ketamine on parade in Calvin Wilkerson and Sandra Thurston

From the May 2, 2017 Update:

    • For a “casual employee” case,  see Mary Lou Vail
    • An example of “actual displacement” can be found in Walter Wright
    • Bertha Schwartz is awarded residential nursing case
    • The out-of-state medical provider amendment is not retroactive, so says the Stephanie Saulsbury case
  • Vernon Robinson and a “popliteal pseudo aneurysm” related to work activity

 

My hope is to eventually have every CaseLaw Update archived, going back to the beginning, 20 plus years ago.  A girl can dream, right?   J

Sticking your neck out……IAB precludes previously unrated cervical permanency

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I log on this morning and what greets me but a gift from James Donovan of Doroshow, Pasquale, Krawitz & Bhaya.  A little tidbit of wisdom he offers for my CaseLaw Update with the comment that this likely isn’t interesting enough for the Detour & Frolic.  Says who?  I think this case has just enough drama to merit a post and, thankfully,  I get to be the judge.

William Wroten v. Lowes Home Centers, IAB#1358700 (4/17/17.)  This is a claim for 23% permanent impairment to the left upper extremity and 37% impairment to the cervical spine. Take note as to that  37% on the C-spine as it will come back to haunt you, if you are the defense lawyer.  So the matter is referred to Dr. Jonathan Kates for a defense medical evaluation. Curiously, although the employer had accepted the cervical spine as compensable, Dr. Kates did not agree and did not rate the cervical spine—apparently there was testimony as to a C-spine rating at his deposition, to which claimant’s counsel objected. .  His rating for the left shoulder was 14%.

In the Board’s decision it considered the claimant’s evidentiary objection to the ad hoc Kates permanency rating.  And struck it from the record.  Ouch!   Bottom line is that claimant was awarded his 23% left upper extremity and 37% cervical spine impairments based on the testimony of Dr. Rodgers.

And this raises an all too common plight of the defense—what to do when the defense medical expert wants to dispute a “causal relation-ship”  which has already sailed.  Let it be fairly said that when this happens at the hearing level, the Board is usually having none of it and it without question erodes the defense expert’s credibility.  In this case, there is a suggestion that the dilemma might have been remedied with an addendum report adding a cervical permanency rating to the record pre-deposition.

Well done, young Donovan, well done!

Irreverently yours,

Cassandra Roberts

 

Hanky Panky Doctor Spanky……. Dr. Balu called out for high-dosage opioids and haphazard recordkeeping

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This one comes to me from my dear one, Bob Richter, in his finest hour, along with DME doc Dr. Jason Brokaw.  Dr. Brokaw is a pain management expert who has recently enjoyed his share of victories in the credibility contest.  This case highlights  an ongoing script for high-dose opioids which was non-certified by Utilization Review—quite remarkably, for an individual who was working heavy duty carpentry work.

So what was the diagnosis?  Bulging discs at multiple lumbar levels (isn’t a bulging disc a clinical variation of normal?)

What were the meds?  Oxycodone, 90 mg daily (6 daily), Flexeril and Ambien, plus Lidocaine cream

Co-morbidities?  Obesity and 1 kidney (the kidney situation precluding the use of NSAIDs)

The outcome?  The Board orders a weaning from Claimant’s current high level of opioid usage, with the following observations:

  • Dr. Balu’s recordkeeping is so haphazard that a critical document (the Narcotic Noncompliance Documentation Report completed in April 2016) was not produced until December 2016.
  • Of greater concern, is Dr. Balu’s failure to do what he himself states should be done…….. manage Claimant’s pain with the least amount of medication.
  • Long-term opioid usage is not generally endorsed.
  • Considering that Dr. Balu has, by his own admission, not even attempted to wean down the Claimant’s opioid usage, the Board accepts Dr. Brokaw’s opinion concerning that proper balance over that of Dr. Balu.

The case is Jeffrey Sprouse v. John L. Briggs & Co., IAB#1272196 (4/25/17).   Let the good times roll on the medication weaning process……..next stop,  medical massage?

Irreverently yours,

Cassandra Roberts

Cinderella……DE Comp Bar mourns passing of Mike Sensor

 by Cassandra Roberts

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I like to think of myself as one of the “wordsmiths” of the Delaware comp bar.  Whether it be because of the blog, or the fact I am the “town crier” when it comes to IAB case law, or the sometimes embarrassing fact  that I speak out where others dare only think.  But with the passing earlier this week of our beloved colleague,  Mike Sensor,  it occurs to me that I am a fraud–  a sham of an oracle– when compared to Mike.  The loss to our comp bar of his many gifts is enormous, and words almost elude…..but knowing that if Mike were writing this in my stead, he would take us to the gentle place where words are the dwelling of what the heart holds, and what the mind contemplates.

Mike was a man after God’s own heart.   Those of us who knew him on a personal level know that his faith and pursuit of the eternal insure that in death, he is dancing with his Father God in fields of grace.  That is our comfort in this sorrowful situation.  That and the fact that he no doubt lives on in his girls, Ketevan Sophia and Claramond Mary Wilde.  They were the apple of his eye…..and wife Trish was the twinkle in his eye.

Mike was a man of many gifts, to the enormous benefit of his colleagues in the work comp bar.  A man of intellect, of keen wit and keener memory, whose legal acumen served the rest of us well.  Allow me to share the collective sentiments of his peers on his passing, with the remarkable observation that these folks knew Mike as both friend and at times, legal adversary:

“I was very sad to hear about the passing of Mike Sensor.  I would describe him as one of Delaware’s word-smiths.  When Mike was on the plaintiff’s side of the “v”, he would be on the short list of people to call to get his take on a case or an issue.  When Mike moved on to the defense side of the “v”, he was always a worthy adversary.  Unlike some, he wouldn’t throw every defense up against the wall to see what stuck, he would focus on his strengths and capitalize on those in the most professional way.  This is a big loss to the Delaware Bar.” Matt Fogg
“Although I’ve known Mike for several years, I’ve had the pleasure of working together with him at Tybout for the past year and a half.  Mike was one of the most genuine people you could ever know.   His wit and compassion were only outshined by his kindness.  He was very passionate about the law, and always had his finger on the pulse of recent decisions and news from around the Bar.  I was shocked and saddened to hear of his passing.  My thoughts and prayers go out to his family….  He will truly be missed.” Rob Greenberg
“In 2011, I joined Perry & Sensor as Mike’s law clerk.  Mike took me under his wing, teaching me everything he knew about litigating PI cases and how to become a successful attorney.  He was thorough, patient, and genuinely excited to share the profession he loved so much with someone else.  In 2013, he stood in front of the Supreme Court of the State of Delaware and recommended my admission to the bar.  I will never forget the smile on his face and how he was beaming with pride.  We worked closely together on hundreds of cases; yet, he somehow managed to teach me something new at every turn. He had a wealth of knowledge on many topics, of which I feel I was only able to scratch the surface. I loved watching the fire and excitement in his eyes when he would talk about an obscure set of facts or a challenging case. He truly loved being a Delaware attorney, and emanated a passion and profound reverence for the law.  He was a brilliant jurist, and an even better man and father.  It was an absolute privilege to have him as my mentor, and to be able to call him my friend. I will miss him dearly.”  Sara Balestra Menei
“Whenever I needed to know some odd rule or procedure,  Mike was my  “go-to” lawyer.   He was so smart and  had the memory of elephant as well as the majesty of a great Indian elephant.”  Shakuntla Bhaya
“I have had the pleasure of knowing Mike for a number of years, first as opposing counsel on files, and most recently as a colleague working together in the same firm.  We all know how difficult it can be to deal with attorneys.  Mike was the exception.  He was equally as pleasant whether opposing him or working next to him.   Mike never had an unkind word to say about anyone and I never heard anyone utter an unkind word about him.   He was a true example of what a Delaware lawyer should be…kind, civil, honorable.  I think Mike loved being a lawyer.  But if you want to know what a person truly loves and never tires of looking at, look at their desk.  Mike’s desk was covered with pictures of his kids and his wife.   They were his true love.”   Joe Klusman
“Mike was one of my first friends within the Bar. He was an terrific advocate for his clients (whether plaintiff or defense), a scholar, a witty wordsmith, a terrific writer and a kind and compassionate man.  If you ever called him with a question, you  know he took the time to think about your query and really try to answer it… and if he did not know the answer immediately, it would not be uncommon to get an email from him a day or two later with a researched response to your issue.  He truly loved the practice of law and debate over hot topics. Over the years, I also had the privilege to get to know his wonderful family. It was clear how much he enjoyed fatherhood and introducing his children to the things in life he was most passionate about.  My friend will be sorely missed.”  Yvonne Saville
“TRP was incredibly proud and privileged when Mike decided to come work with us.  I was ecstatic.  He was already a great friend and respected colleague to all of us, but to have him as part of our team was a real honor, and even a bit of a coup.  There hasn’t been a day since he’d started at TRP that I wasn’t grateful to have him here. He was an absolute joy to be around and to work with. He took on every task and case with fervor and zeal.  And with that big room-brightening  smile of his.  I enjoyed talking with Mike, about anything, and I feel so lucky to have had the chance to work with him and to get to know him.  Simply and succinctly, Mike was just a great guy.  He was an amazing attorney and asset to our firm, but more than that, he was a really good person.  He was kind and genuine, and he was adored by anyone who had the good fortune of knowing him. There is a big hole at TRP and in our hearts.”   Danielle Yearick
“I want you to know that I never really had a chance to speak to Mike very much before he came to TRP, so I never got a chance to previously know him well. However, that all changed during his tenure here.  I will tell you I found Mike to be one of the nicest and genuine people I have ever met. I came to consider him as not just as a colleague, but as a friend. I enjoyed every moment I had talking to him and I especially enjoyed his war stories  He unsparingly gave his time to help navigate the startup of Kids Chance of Delaware. Having gotten to know him, this was not surprising to me in the least. He was able to use his own personal knowledge of the legalities since he had previously set up a charity himself.  I have a great deal of respect for Mike, particularly for his knowledge and capabilities as an attorney, but most importantly, as an individual. The best descriptive term I can think of is that Mike was a prince.”  Dennis Menton
“I met Mike during my third year in law school at a Moe Levine Trial Advocacy Honor Society competition in Pittsburgh.  He was very friendly and left a strong positive impression on me.  I had not really seen him again until I became a Hearing Officer at which time he was truly welcoming of me to the workers’ comp world.  Every time I saw him, he greeted me with a welcoming, caring and soothing smile.  He was always so nice to me and a true joy to see.  I will tremendously miss him.  This is so sad. “  Julie Pezzner
“It was with a sad, sad heart that I, like so many of us in our small community, heard the news of Mike’s passing.  Anyone who knew Mike knew him as a kind, gentle man. In the many years I knew Mike and in the many cases we had against each other I cannot recall a cross word or a conversation that ended with anything other than a smile and a kind word.  Mike was so well respected by so many and it is easy to understand why.  He embodied the ‘Delaware Way.’  An excellent lawyer with a great understanding of the issues and the law, along with the highest caliber of integrity and civility.  Mike was a creative thinker and generously volunteered his time to others as evidenced by the years he served as an editor and contributor to In Re: , The Journal of the DSBA.   There is no doubt that Mike is looking down on us right now with his usual smile and preparing another wonderful article for all of us to enjoy when we meet again. He was in every way one of the good guys.”   Scott Mondell
“This has not yet sunk in over here. Kinda surreal.  I had lunch with Mike last week. He rarely spoke of himself, mostly spoke about his children.  He has a kind, gentle soul. He was a true Gentleman and a most competent Attorney. He had an easy way about him.  A true friend. “  Frank Nardo
“We will miss our good, generous friend. He exemplified the best in client dedication, uniform courtesy, and ethical practice. Our comfort in addition to his fond memory he left us rests upon the assurance we all have available that he knew the Lord. God bless and comfort his family….”  Clayton Bunting
“My memory of Mike will always be how smart he was.  He was one of the attorneys I would call and say “hey Mike, I’ve got this weird legal issue, can you help me think my way through it?”, and he would stop what he was doing and talk through the problem with me.  Every. Single. Time.  He had a stunning knowledge base in so many areas: procedure, equity, and contracts were just a few in addition to workers comp and personal injury.  And I can’t count how many times we would be discussing an issue at the firm and someone would say I think Mike Sensor posted something about that in DTLA, and you look it up and it would be dead on point, thorough and accurate.  I never stumped him, and I certainly tried.  Always a gentleman, always a representative of the best aspects of the Delaware Bar.”   Cynthia Pruitt
“This makes me very, very sad—Mike was a good man; a good husband; a good father; and a good lawyer.”  Fred Freibott
“The one thing I will always remember about Mike is that he was always positive and upbeat.  I never saw him down or without a smile on his face. “  Chris Logullo
“Mike was a family man and good lawyer – such a tragedy.”  Mike Owen
“Oh my God. He just posted an Easter greeting/video yesterday morning. He  was a good man and devoted dad.”   Sheldon Saints
“I can’t believe this, I just had a deposition with him last week, and we talked about our kids for 10 minutes afterwards, such a nice man, this is devastating….”  Tara Bustard

To add to this beautiful chorus of tribute for Mike, and I don’t even know where to begin.  To know Mike was to know that beyond his immeasurable love for Keti and Clara, his heart beat for one woman, his wife Trish.  My prayer is that my friendship with her will endure, knowing that I will be the better for it.  Mike had this quirky thing going on for Balkan music and the Republic of Georgia—keeping that in mind in case we ever create our own version of Work Comp Trivial Pursuit.  He was a native son of Erie, PA and proud of it.  And he ended a distinguished legal career as Senior Counsel at Tybout, Redfearn & Pell– which is a pretty fine departure point if you are going to leave the earth and meet Jesus, if you ask me…………….he spent his last days among peers who valued him, respected his prowess, and held him in the highest affection.  Danielle Yearick captured that sentiment best when she referred to his hiring as  “a coup.”  Suffice it to say he was well-loved at work as he was among his family.

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So why is this post titled “Cinderella”?  There is a song by Christian recording artist Steven Curtis Chapman and it brings Mike and his daughters to mind…….I just can’t get it out of my head…… I urge you to listen to it on YouTube (unless, like me, you own the CD).  But let me end with the chorus:

So I will dance with Cinderella
While she is here in my arms
‘Cause I know something the Prince never knew–
Oh, I will dance with Cinderella
I don’t wanna miss even one song
‘Cause all too soon the clock will strike midnight
And she’ll be gone.

Go gently into that good night, my friend.  Knowing that absent in the body, you are present with The Lord.

2 Corinthians 5:6-8.

Supreme Cuisine………Holland Inn Cookbook a smorgasbord of good eats

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So there you have it above. Justice Randy J. Holland presenting his BFF Supreme Court Justice Ruth Bader Ginsburg with the inaugural copy of the Holland Inn cookbook last month. For those of you who don’t know– Supreme Cuisine……A Collection of Our Most Appealing Recipes— is the fundraiser cookbook that the Inn took on as its altruism venture for 2016.   Sold 500 books in 2 weeks (selling out) , raising approximately $10,000.00 in funds, a large portion of which will go to create a DE chapter of Kids Chance America, a charitable entity whose purpose is to raise funds to provide scholarship assistance to the children of workers killed on the job. The cookbook contains approximately 594 recipes from the Bench , Bar and Board, with approximately 90 amateur chefs participating.

A special few have a signed copy of the cookbook, as Justice Holland graciously autographed books at our December Holland Inn holiday event, this year hosted by Tybout, Redfearn & Pell. Of note, next year’s Holland Inn holiday party will be hosted by Judge Cooch at his residence, scheduled for December 6, 2017.

As for the cookbook, a re-print is in the works and additional copies of the book will be on sale at the Joint Inn of Court meeting in March. A Volume II is planned for 2018, to be titled Supreme Cuisine…..on Remand.

I just love this photo of Justice Ginsburg rocking those tights and pumps. She is….. indeed……Fashion’s Plaything.

Cassandra Roberts

CaseLaw Update Updated…….all the news that’s fit to print

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Per my promise of last week, here you have it, my friends.  The CaseLaw Updates of 2016 all hanging out in one place for your research pleasure.  Going forward, we will maintain a CaseLaw Update Archives for you to refer back to.

What we have here is as follows:

A January 2017 CaseLaw Update will be posted to roughly coincide with the DSBA Workers’ Comp Section Annual Breakfast Seminar scheduled for January 18, 2017 at the Chase Center at the Riverfront.    If you have not already registered for this event, please consider doing so.  That seminar always proves to be a worthy program with relevant topics.

Moving forward, the blog will be the sole means of distribution and access for any CaseLaw Updates.

And remember, The Detour & Frolic is your blog,  as well as mine.  I am always open to accepting cases for discussion, with or without your commentary.

Cassandra Roberts

The Discovery Channel…..and a Merry Christmas to All!

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I love Motion Day.  I know y’all are tired of hearing me say “The best law comes out of those Motion Day decisions.”  And I love it when esteemed practitioners share their outcomes with me for the betterment of the group.  Today’s post is courtesy of Joe Andrews,  a man whose face is synonymous with “Rule to Show Cause” and  “Motion to Compel.”   Let’s just say our friend Joe is no stranger to the IAB Legal Hearing.    J

One of these days, perhaps in my retirement (which is not coming any time soon), I am going to put together a book of IAB practice and procedure and it will be annotated with a veritable hit parade of Motion Day rulings.  At least…….that is my dream.  And I am thinking my dear one, Chris Baum,  might join me as co-author.  You know Chris…..the one whose decisions are mini-treatises and so precious that long ago, I nicknamed them the “Chris Baum Cherishables.”  Yes, that one.  The one person who might be worthy to undertake this case law adventure with me.

I digress  (lost in the reverie of a case law undertaking with Chris Baum).  So back to Joe Andrews.   I was complaining about representing an employer and sending the DOL a blanket request for any and all IAB documents regarding any and all IAB proceedings, work injuries, etc.  Darn if that DOL didn’t send me back a letter telling me I needed the claimant to sign a release.  So Joe kindly sent me a copy of Thomas Speakman v. John E. Steele, IAB #1438211 (5/5/16)(ORDER) which stands for the proposition that “when no petition is filed, only Board decisions and Board orders may be released as they are public documents; however once a petition is filed against an employer, then the employer becomes a defendant entitled to full discovery into prior accidents and as such, the defendant is entitled to reply upon the employee’s petition against it to access the rest of the IA file materials.”

So bottom line- if no petition, all you get are IAB decisions and orders, and if a petition is pending you can demand the entire file contents .  I kind of love how there is a little admonishment in there by the IAB slapping the hands of the DOL as to the release of this information.  In this age of the serial claimant, this kind of discovery is both urgent and relevant and in some extreme cases, quite necessary to prevent fraud (along with Facebook).

Okay,  so this next decision is a keeper.  If I ever write a second book,  titled “The Best of Joe Andrews”, this one will definitely merit a prominent place in the discussion.  Succinctly stated by Joe:  “ Employers can require claimants to complete Statements of Facts on Term Petitions or other Employer Petitions and the Board also adopts Superior Court Rule 33 to require Claimants to sign the Statement of Facts themselves instead of letting attorneys provide little to no information only to have the claimant at trial say he never saw that.”   I like this one …….immensely.   I have often been frustrated at the paucity of information and disclosure when dealing with any Petition other than an initial DCD .   I am thinking that this ruling can also be used to compel a claimant to complete an updated Statement of Facts on a DACD as well as a Review Term.  The case is K&S Iron Works v. Jorge Nevarez, IAB #1287991 (9/1/16(ORDER).  There is so little pre-hearing discovery in workers comp………….we owe it to ourselves to preserve what few rights we have.

So as we head into the holiday weekend,  let’s all reflect on the reason for the season……and let’s enter 2017 with renewed fervor to practice law with a spirit of candor, disclosure,  and with all the civility that uniquely defines us as workers comp lawyers.

Merry Christmas!  Happy Hanukkah!  And God bless us, everyone!

Cassandra Roberts

 

Feliz Navidad y Propsero Ano……..and Greetings from the Supreme Court

I am back.  And you are likely thinking “it’s about time.”

Yes, I have been sidelined for the last 8 months by a sweet little ditty that I fondly refer to as “the cardiac event.” Slowed me down, but it didn’t kill me, praise God,  and I am back with a vengeance.  Blog has been silent too long.  Someone needs to speak up and stir the pot.

So to herald my return,  a case of epic proportions.  As you all likely know (unless you’ve been living under a rock) , the Supremes decided the Guardado v. Roos Foods case a few weeks ago.    The case that had the potential to create a new class of displaced worker.  To render a work accident the wage loss motherlode for the “No habla Ingles” population.

First let me say that I share in the pleasure and pride of my colleagues at Elzufon Austin Tarlov & Mondell  at the remarkable outcome obtained through their efforts.  This decision in Roos Foods is a testament to their skilled advocacy (this means you, Andy Carmine, Elissa Greenberg, Gary Baker).  Frankly, pretty much everyone in town thought this case would be affirmed, or otherwise disposed of by the Court in a manner that would be unfavorable, if not punitive,  where employers are concerned.

Huge victory finding that illegals are not prima facie displaced.

Huge victory as well in ruling that an employer does not need to produce a labor market survey of jobs that would require testimony of illegal/illicit hiring practices but can instead introduce this “reliable market evidence that employment within the worker’s capabilities is available to undocumented workers”.

Now all that said, and not disrespecting any of the benefit achieved by the defense in this case,  I will feel better when I see this played out a few times.  Why?

  • From the Supreme Court’s mouth to the Board’s ears—one really has to keep an open mind as to what the Board will do with this pronouncement in terms of practical application.  The good news is that the IAB decisions are written by law-trained hearing officers who will hopefully exercise their due diligence to put legal theory into practical application.
  • Illegal alien status is still a factor in the rebuttal of the displaced worker allegation.  And a pesky one at that.
  • Thirdly, this “reliable market evidence” of jobs realistically available to illegals.  How is that testimony going to play out if someone has a significant injury and sedentary limitations?  Obviously there is going to be an “education curve” as to those trades and vocations that typically draw from our illegal population—but the concern is that those jobs consist very specifically of vocations such as: landscaping,  dry-wall, roofing, food service-  and I harbor concerns that there is a paucity of sedentary jobs out there and will hold that concern until enlightened otherwise.  And will the term “reliable market evidence” itself be subject to debate as to exactly what that means.  It is certainly going to put the onus on these vocational rehab/labor market experts to do their jobs in a manner that has not been done before (and are they up to it?)

So that is my spin on the outcome of this case.  Again, huge props to Scott Mondell and his team for working what many consider a near-miracle.

So I would normally sign off “irreverently yours.”  But having literally come back from the dead,  I don’t think I will ever regard anything with irreverence again.  That is so not where I am at in this phase of life, cherished life……So all I will say is  “ it’s a beautiful day to be alive.”  🙂

Warmest holiday regards!

Cassandra Roberts

Curtain Call on Illegals in Delaware: The Superior Court Affirms a New Class of Displaced Worker

Today I bring you what Walt Schmittinger affectionately calls “Act 2 of what I presume will be a 3 Act play.”  It is the appeal decision in the Guardado case that we have all been waiting for.  For the back story, check my blog entry of 4/10/15 titled “Everybody Loves Pedro….”, a little ditty which is about as entertaining as a root canal if you are a defense attorney.  The case at the Board level is Magdalena Guardado v. Roos Foods and it does two things: (1) creates a special class of displacement for undocumented workers, and (2) establishes as a matter of law that a traditional labor market survey cannot be used to demonstrate the requisite burden of proof of job availability since the jobs identified are, of course, not available to illegals.

Yesterday the Superior Court affirmed the Board’s decision in Guardado.  An appeal to the Delaware Supreme Court is inevitable.  Check out  Roos Foods v Magdalena Guardado Superior CT DE, CA No. S1A-05-002-ESB (January 26, 2016).

Now in fairness, a closer examination of Judge Bradley’s decision is in order.  He broke the IAB ruling down into three propositions:

   That Ms. Guardado was medically employable – the IAB so ruled and this aspect of the case was undisputed.
   That Ms. Guardado was a displaced worker – this premise was based on 7 factors and not solely on her undocumented status (factors of age, being unskilled, illiterate as to written or spoken English, being limited to the use of one hand, level of education, length of time in the workplace prior to injury, and finally being an illegal alien).  As stated by the Judge, “There is no doubt that Guardado, with her capabilities and limitations, is going to have a very difficult time finding a job.”
   That the labor market survey relied upon by the employer was not a valid showing of available employment.

Of note, the Superior Court in Guardado took much the same approach as our Supreme Court in Campos v. Daisy Construction, 107 A. 3d 570, 572 (Del.2014), specifically that federal laws prohibit hiring undocumented workers and that the difficulty of showing job availability following a work accident is “appropriately borne by the employer who must take the employee as it hired her.”  Bottom line, if you want to avoid this behemoth of an obstacle in the pursuit of a Termination Petition, check immigration status before offering that job.

I did not solicit comments from the attorneys involved in this matter, given that an appeal is anticipated.  For my part, I won’t be eating refried beans any time soon.

Irreverently yours,

 Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts