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Workers' Compensation

Dan in Real Life…….and the Denial of a Stress Claim in Delaware

Today I violate my usual rule of "do not blog about thyself."  For months I have been telling my opponent Mike Bednash that, for better or worse, this case was headed for the blog.  And it's a stress claim-so who doesn't want to read about one of those?

Here is the gist:

Claimant is employed as an investment analyst for Delaware Community Investment Corp. ("DCIC").  Barred in New Jersey, he failed the Delaware Bar two times, possibly three..... but who's counting.  From 2008 to 2011 he reported to an individual whom everyone involved agreed was "the boss from hell."  The individual's conduct was so egregious that in March 2011 she was forcibly removed from her position as President of DCIC by its Board of Directors.

So far sounds pretty good for the claimant, right?

Accounts vary as to exactly what the claimant brought to the table.  Representatives of the employer would say little, while the claimant saw himself as a veritable Hercules...carrying the rest of the office on his back.  And I actually thought the claimant made a pretty credible witness, all things considered.

So where's the rub?

The boss from hell is fired in early 2011.  The claimant has a meltdown at work in mid-January 2012......approximately 8 months after her removal.  At the time in question, claimant had dropped the ball (and not the first time for such) on a deadline and was forced to stay late to complete it by the next day.  In his own words, during that evening he "froze up" and reached the point where he was paralyzed as far as work was concerned.  That was the last day he ever worked for DCIC, as immediately thereafter he went out on a psychiatrically-driven medical leave.

During the litigation, the following is discovered as the result of two in-patient hospital stays in the July-August 2012 time frame:

·   Claimant is bi-polar

·   Claimant is an alcoholic, drinking daily for the past year

·   Claimant has cannabis dependence, using it daily for the past year

·   Claimant has benzodiazepine abuse

·   Claimant's wife has asked for a divorce

·   Claimant is being investigated by ODC for the unauthorized practice of law

And the experts?

Dr. Samuel Romirowsky testified for the claimant and Dr. David Raskin for the employer-and both appeared live at the hearing.  At the risk of over-simplifying the opinions, Romirowsky thought the workplace fueled the bi-polar causing it to become manifest in claimant's behavior-Raskin opined that the bi-polarity (and substance abuse) fueled the claimant's reaction to the workplace.  Raskin strenuously disagreed with Romirowsky as to a diagnosis of generalized anxiety disorder fueled by workplace stress, commenting that "it is not appropriate to make an anxiety diagnosis once bipolarity is present".....according to the Diagnostic and Statistical Manual of Mental Disorders.

The outcome?

I read the decision with great trepidation, and rightfully so.  The Hearing Officer did find in claimant's favor of the issue of being able to objectively demonstrate workplace stress (way to go, Mike!).  Where his claim fell short was on the second prong of the Cephas test-establishing the causal link between the stress and the disability....and it's a "substantial cause" test, folks.  Thus, decision in favor of DCIC. Dan Pelletier v. DCIC, IAB Hrg. #1380379 (2/13/13).

The case is an interesting read if you want to learn more about the interplay between bipolarity and substance abuse.  Or wish to point to an example of a case where the personal baggage so far overtakes anything that happened at work so as to render the likelihood of an award non-existent.

Props to Mike Bednash......he and I had discussed this case at length during the course of the litigation and we both felt the employer would likely win.  But Mike took a bad case, made it colorable if not credible, and allowed the claimant his day in court.  For my part, I am simply relieved I didn't screw it up.

And as for the claimant, I like to think of him and visualize that one Facebook post...."out in the Beemer on 82 and just livin' the dream...."

Irreverently yours,
Cassandra Roberts

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

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