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Hardy v. Eastern Quality Vending

Superior Court of Delaware, Sussex

May 12, 2015

Hardy
v.
Eastern Quality Vending

Michael G. Owen Morris James LLP Attorney for Claimant-Appellant

John J Ellis Heckler & Frabizzio Attorney for Employer-Appellee

Dear Counsel:

Before the Court is claimant Shawn Hardy's ("Claimant") appeal from the Industrial Accident Board ("IAB" or alternatively "Board"). Specifically, an IAB hearing officer determined Claimant did not carry his burden of proving a "work injury" while employed with Eastern Quality Vending, Inc. ("Employer"). The Court has reviewed the parties' briefs, the hearing officer's decision, and the record. For the following reasons, the decision of the IAB is AFFIRMED.

FACTS

Claimant is a 50 year-old man currently living in Harrington, Delaware, where he lives with his fiancée, her two children, and his mother. At the tim e of the injury, Claimant was a unit manager in Employer's Selbyville, Delaware facility ("Selbyville facility"). He began working for Employer in November of 2012. As a unit manager, Claimant was "in charge of the scheduling, the hiring of the staff, training of the staff, quality of the food preparation, . . . inventory, [and] cost control."[1] His shifts were approximately ten to twelve hours long.

Claimant maintains that on February 14, 2013, [2] he suffered an injury while working at Employer's Millsboro, Delaware facility ("Millsboro facility").[3] Claimant described how his alleged work-accident occurred as follows:

There's three separate rooms to the cafeteria. There's a back prep room, has some tables and some prep area and has a swinging door which leads you then to the work area or what we call the worker's line, the cooks line and you go through that. And there's another doorway which takes you to the serving line. I was in the back prep room putting desserts on trays, carrying the desserts so we can have them ready. And I would take the full tray from the prep room through to the other room, put it on a rack that was laid in the door between the serving line and the cafeteria.
As I was going from the prep room walking through the service line I slipped and fell on the floor, dropped the tray, kind of landed in the doorway on my buttocks and my back[4] at an angle and the desserts went flying.[5]

Claimant believes he slipped on grease since he and his co-workers were changing the facility's fryer at the time. After his fall, Claimant got up on his own, noting that he was sore from the fall, but was more embarrassed than anything.

Claimant attested that several people witnessed, or were at least present, when the accident occurred. Specifically, Claimant asserts that Kelly Huff[6] and Darren Roe[7] witnessed the actual fall, or were in his immediate proximity when it occurred. Claimant also maintains John Speake, Linda Rogers, [8] and Dean Roe, [9] were in the cafeteria of the Millsboro facility, and that after the fall, he sat down with them and had a soda to "gather[] [his] wits."[10] Claimant stated he finished his shift at the Millsboro facility on February 14, 2013, despite being sore.

The next day, February 15, 2013, Claimant woke up sore but went to work anyway. He testified that Rogers came by that afternoon to check on him, telling him that if his pain got worse, to go to the emergency room ("ER"). Claimant finished his shift on February 15, 2013, but felt really sore. According to Claimant, Rogers did not ask Claimant to fill out documentation regarding his alleged February 14, 2013 slip and fall.

The following day, February 16, 2013, Claimant was so sore that he could not get out of bed. His fiancée helped him to the car and took him to the ER at Kent General Hospital. There, Claimant complained of bruising, with pain in his lower back and left hip. At this point, Claimant started what would become a litany of procedures, spanning over a year, that included treatment from several doctors.

At Kent General's ER, physicians took x-rays, prescribed Claimant crutches, and referred him to occupational health. Claimant attended occupational health on two occasions, February 18 and 26 of 2013. While there, occupational health examined Claimant and "tried to do some ...


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