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Today's post is a salute to my lack of ego. Yep, I am going to break my own rule and post about one of my cases....and take it a step further and tell y'all about a case I recently lost to Matt Bartkowski of Kimmel, Carter, Roman & Peltz. I so wanted to just file this one away in my drawer, but that small still voice kept screaming "this one has something to offer".......
So I give you Alfonso Smith v. United Water Delaware, IAB# 1387093 (1/23/13). This little gem is a succinct tutorial on a few varied issues of course and scope, capably authored by Hearing Officer (and fashion icon) Julie Pezzner, who adjudicated the case.
So what are the take-aways?
• Just because the injured worker drives 4 miles past the employer's premises at the almost-end of his work day in search of a car wash (passing 3-4 other car washes in the process) does not mean he is on a detour and frolic. The claimant's testimony that he was en route to the Five Points Car Wash because their vacuum has killer suction was deemed credible. So I guess you could say that in this case the author of The Detour & Frolic couldn't prove a frolic and detour. Go figure......
• This decision has a tightly written little gem of an analysis of "Idiopathic versus Unexplained Falls." The claimant passed out for reasons which will never be known (the belief is that he may have nodded off) and struck a telephone pole. But absolutely no nexus to the work activity, that little escape into a lack of consciousness. What was pivotal was that the injuries occurred as a result of driving (the vehicle struck a telephone pole) and as such "the conditions and obligations of claimant's employment placed claimant in a position where he was injured; the employment served as a substantial contributing factor to the injury."
• Last but not least was my forfeiture defense of failure to use a safety device, 19 Del. Code Section 2353(b). Claimant was not wearing a seatbelt when this all went down. And after 30 years of practice, I was actually bested by young Matt who knows a little something that I did not. The Seat Belt Safety Act, 21 Del. Code Section 4802(i) which says that failure to use a seat belt is not admissible as evidence in a civil trial or insurance adjudication. Now that one hurt......
Hopefully I will not lose a case again anytime soon, although I have a whopper on an issue awaiting decision on another Hearing Officer's desk. It involves Matt's partner Mike Bednash....don't know what it is about those Kimmel, Carter men.......:>)
Irreverently yours,Cassandra Roberts
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
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