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

The-most-common-jobs-held-by-immigrants-940x705

 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.

Advertisements

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

5-5

 

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

Oxycodone

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

IMG_34951

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.

IMG_34921

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

fullsizerender

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

law-books-and-gavel

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