Alside Supply Center v. Bottomley ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ALSIDE SUPPLY CENTER, )
)
Employer-Below, Appellant, )
)
v. ) C.A. No. N20A-07-002 JRJ
)
JEREMY BOTTOMLEY, )
)
Claimant-Below, Appellee. )
)
MEMORANDUM OPINION
Submitted: January 26, 2021
Decided: March 29, 2021
Upon Alside Supply Center’s Appeal from Decision and Order of the Industrial
Accident Board: AFFIRMED.
Morgan Sack, Esquire, Cipriani & Werner, P.C., 1000 N. West Street, Suite 1200,
Wilmington, DE 19801, Attorney for Employer-Below, Appellant.
Nicholas M. Krayer, Esquire, Pratcher Krayer LLC, 1300 N. Grant Avenue, Suite
206, P.O. Box 591, Wilmington, Delaware 19899, Attorney for Claimant-Below,
Appellee.
Jurden, P.J.
I. INTRODUCTION
One morning, Jeremy Bottomley (“Claimant”) drove to work and parked in
the parking lot near the building occupied by his employer, Alside Supply Center
(“Alside”). As he exited his vehicle and headed toward the building, Claimant was
physically assaulted by three unknown males and suffered severe injuries as a result.
In the proceeding below, the Industrial Accident Board (the “Board”) found that the
injuries arose out of Claimant’s employment with Alside for purposes of the
Workers’ Compensation Act. Specifically, the Board found that the “conditions of
employment at Alside increased the likelihood of an attack by the unknown
assailants as Claimant arrived for work” and that “credible evidence exists of work-
related tension that could have led to Claimant[’s] being a target for the attack.”1 On
appeal, Alside argues that the Board’s conclusions were not supported by substantial
evidence. As explained below, the Court finds that substantial evidence supports
both conclusions. Accordingly, the Board’s Decision and Order is AFFIRMED.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Procedural History
1
Appellant-Employer, Alside Supply Center’s Opening Brief on Appeal of the Industrial Accident
Board’s Decision Dated June 19, 2019 (“Opening Brief”), Exhibit C (“Board Decision”), at 20
(Trans. ID. 66202604).
2
The assault and injury occurred on August 3, 2018.2 On August 27, 2018,
Claimant filed a Petition to Determine Compensation Due.3 The parties agreed to
split the resolution of Claimant’s Petition into two hearings.4 In the first hearing, the
Board would determine whether the injuries arose out of and occurred within the
scope of Claimant’s employment with Alside.5 If the Board determined that they
did, then the second hearing would focus on the extent of the benefits owed.6
On May 21, 2019, the Board held the first hearing.7 The parties did not dispute
that Claimant’s injuries occurred during course of employment, so the only issue
was whether the injuries arose out of Claimant’s employment.8 In its June 19, 2019
post-hearing decision, the Board concluded that they did.9 On July 10, 2019, Alside
appealed the Board’s decision, but, on November 5, 2019, the Board dismissed the
appeal as interlocutory because the second hearing had not taken place.10 On June
2, 2020, the Board held the second hearing, and it issued its second post-hearing
decision on June 9, 2020.11 Alside now appeals the Board’s first decision, arguing
2
Id. at 2.
3
Opening Brief, Exhibit A (Trans. ID. 66202604).
4
Opening Brief, at 1 (Trans. ID. 66202604); Appellee’s Answering Brief (“Answering Brief”), at
5 (Trans. ID. 66241463).
5
Opening Brief, at 1 (Trans. ID. 66202604); Answering Brief, at 5 (Trans. ID. 66241463).
6
Opening Brief, at 1 (Trans. ID. 66202604); Answering Brief, at 5 (Trans. ID. 66241463).
7
Opening Brief, Exhibit B (Trans. ID. 66202604).
8
See generally Board Decision (Trans. ID. 66202604).
9
Board Decision (Trans. ID. 66202604).
10
Opening Brief, Exhibit E (Trans. ID. 66202604).
11
The Board had miscalculated the benefits owed, so Claimant filed an unopposed Motion for
Reargument on June 16, 2020, and the Board granted it on June 18, 2020. Opening Brief, Exhibit
H, at 1 (Trans. ID. 66202604). See generally Opening Brief, Exhibit H (Trans. ID. 66202604).
3
that substantial evidence does not support the Board’s conclusion that Claimant’s
injuries arose out of his employment with Alside.12
B. Facts Presented
The Decision and Order at issue relies heavily on the testimony provided by
Detective Raymond Shatley.13 At the time of the assault, Detective Shatley was
assigned to the Major Crimes Unit of the Delaware State Police.14 He investigated
Claimant’s assault, and that investigation revealed the following.15
At about 6 a.m. on August 3, 2018, Claimant arrived at his usual parking
location—the parking lot on the left side of Alside’s building.16 When he arrived,
Claimant noticed that there was a silver van parked nearby.17 Claimant exited his
vehicle and headed toward the building.18 Moments later, Claimant was approached
by a masked man.19 Two more masked men soon approached Claimant, and all three
assaulted him with a baseball bat and a chain.20 The men said nothing during the
12
Notice of Appeal Pursuant to Rule 72 (Trans. ID. 65753845). See generally Opening Brief
(Trans. ID. 66202604); Appellant-Employer, Alside Supply Center’s Reply Brief on Appeal of the
Industrial Accident Board’s Decision Dated June 19, 2019 (“Reply Brief”) (Trans. ID. 66285895).
On December 21, 2020, Alside filed its Opening Brief. See generally Opening Brief (Trans. ID.
66202604). On January 11, 2021, Claimant filed his Answering Brief. See generally Answering
Brief (Trans. ID. 66241463). On January 26, 2021, Alside filed its Reply Brief. See generally
Reply Brief (Trans. ID. 66285895).
13
See generally Board Decision (Trans. ID. 66202604).
14
Id. at 3.
15
Id.
16
See id.
17
Id.
18
Id.
19
Id.
20
Id. at 3–4.
4
assault, and they did not rob Claimant of any of his personal belongings.21 After the
assault, the men drove away in the silver van.22 Although there were no security
cameras on the left side of Alside’s building, a nearby camera showed that the van
had pulled into the parking lot a few minutes before Claimant arrived.23 But the
camera did not reveal the van’s license plate, nor did it capture the images of the
assailants inside of the van.24 At the time of the assault, no one else was at Alside
except for one employee who was inside the building.25
In connection with his investigation, Detective Shatley conducted several
interviews.26 One of the people whom Detective Shatley interviewed was Natalie
Wamba, Claimant’s girlfriend.27 Wamba told Detective Shatley that Claimant had
been complaining about two co-workers: Steven Beachum and Eugene Lockhart.28
But she could not identify any non-work-related reason for the assault.29 Although
Wamba mentioned that Claimant had played the penny slots at Delaware Park,
Detective Shatley’s investigation did not reveal a gambling issue that could have led
to the assault.30 Detective Shatley also interviewed Michael Smulski, the branch
21
Id. at 4.
22
Id.
23
Id. at 4–5.
24
Id. at 4.
25
Id. at 3.
26
Opening Brief, Exhibit B, at 23:11–14 (Trans. ID. 66202604).
27
Board Decision, at 4 (Trans. ID. 66202604).
28
See id.
29
Id.
30
Id.
5
manager at Alside.31 Smulski confirmed that Claimant had been involved in several
arguments at work.32 Although Smulski did not believe that Beachum or Lockhart
had orchestrated the assault, he believed that Lockhart had the means and
connections to do so.33 Detective Shatley interviewed Bill Wilson, a co-worker of
Claimant’s.34 Wilson said that there had been work-related tension at Alside before
the assault, but that tension disappeared after Claimant left.35 He thought that the
assault was an “inside job” because Claimant did not get along with many of Alside’s
employees.36 Wilson believed that Lockhart was the person who was most likely to
organize an assault against another, but Wilson lacked direct knowledge that
Lockhart had done so in this instance.37 Lastly, Detective Shatley interviewed
Secdrick Pyatt, another co-worker of Claimant’s.38 Pyatt also believed that the
assault was an inside job, but he believed that Lockhart had arranged it.39
In addition to contributing the above information, Detective Shatley testified
that no one had direct evidence tying Lockhart to the assault.40 Detective Shatley
also explained that he did not find enough evidence to prove beyond a reasonable
31
Id.
32
Id.
33
Id.
34
Id.
35
Id.
36
Id.
37
Id.
38
Id.
39
Id.
40
Id.
6
doubt that Lockhart was behind the assault, so Lockhart was not arrested.41 Still,
Detective Shatley believed that there was enough evidence to conclude that, more
likely than not, Lockhart had conspired to assault Claimant.42 To Detective Shatley,
the assault was more than a random event; he thought that Claimant had been
targeted, noting that the assailants knew where Claimant parked and likely knew that
there were no cameras monitoring that area.43
Smulski testified about the relationship between Claimant and Lockhart.44
Smulski explained that Lockhart was Claimant’s direct supervisor and that the two
of them had been involved in numerous altercations before the assault.45 Smulski
recalled an episode that had occurred a few weeks before the assault in which
Claimant stood up for himself in a work-related confrontation with Lockhart.46 The
confrontation was merely verbal, not physical, and Lockhart later told Smulski that
he did not think it was a big deal.47
Pyatt confirmed that Lockhart was generally a confrontational person.48 As
noted above, Pyatt told Detective Shatley that if the assault were an inside job,
41
See id.
42
Id.
43
Id.
44
Id. at 6.
45
Id. at 6–7.
46
Id. at 7.
47
Id.
48
Id. at 9.
7
Lockhart would have likely been behind it.49 Pyatt also testified that he believed
that the assault was supposed to send a message.50 He pointed out that the assault
occurred at an early hour, where Claimant was known to park, and where there were
no cameras to capture the incident.51 Pyatt believed that only an Alside employee
could have put all of this together.52
Natalie Wamba testified that she believed that the assault was related to
problems at work, not problems in Claimant’s personal life.53 She explained that
Claimant led a mellow life outside of work, never getting involved in violence or
other conflicts.54 By contrast, Wamba knew that Claimant had a conflict-laden work
relationship with Lockhart.55
The only other testifying witness was Claimant himself. He estimated that he
had had fifteen to twenty work-related confrontations with Lockhart in less than two
years at Alside.56 In describing the confrontation that shortly preceded the assault,
Claimant explained that he and Lockhart stood face-to-face with each other, neither
willing to back down.57 After that incident, Claimant did not see much of Lockhart.58
49
Id.
50
Id.
51
Id.
52
Id.
53
Id. at 10.
54
Id.
55
Id.
56
Id.
57
Id. at 11.
58
Id.
8
Claimant believed that the incident motivated Lockhart to organize the assault
against him.59 Consistent with Pyatt’s testimony, Claimant explained that the
circumstances of the assault were such that the assault must have been planned by
someone with inside knowledge.60 In Claimant’s mind, that someone was Lockhart,
who was aware of Claimant’s habits.61 Claimant also recalled that Lockhart had
once talked about sending people to someone’s house for failing to pay Lockhart for
a side job that he had done.62 Since the assault, Claimant has not returned to Alside.63
C. The Board’s Decision
The issue before the Board was whether the injuries that Claimant suffered
“arose out of and in the course of his employment with Alside Supply Center.”64
The Board noted that “arising out of” and “in the course of” are independent
requirements, both of which must be satisfied for a claimant to be entitled to
compensation.65 In the case before it, only one requirement was in dispute: whether
the injuries arose out of Claimant’s employment with Alside.66 The Board explained
that in cases involving a physical attack, the question is whether the attack itself
59
Id. at 12.
60
Id.
61
Id.
62
Id.
63
Id. at 13.
64
Id. (citing Histed v. E. I. Du Pont de Nemours & Co., 621 A.2d 340, 343 (Del. 1993)).
65
See id. at 14 (citing Stevens v. State, 802 A.2d 939, 945 (Del. Super. Ct. 2002)).
66
Id. (“In the present case, there is no apparent dispute that Claimant was ‘in the course of
employment’ at the time of the assault.”); Id. at 15 (“Where the parties disagree is whether the
assault on Claimant can be said to have arisen out of his employment.”).
9
arose out of employment.67 The Board identified three fact patterns that guide this
determination: (1) personally motived assaults, (2) employment-related assaults,
and (3) neutral assaults.68
The Board noted that injuries resulting from personally motivated attacks are
generally not compensable.69 In one such case, a manager’s wife attacked an
employee because she “suspected an affair between the employee and the
manager.”70 In another case, assailants attacked a claimant after the claimant had
“accidentally bumped into them in a food court in the mall where she worked.”71
The Board contrasted personally motivated attacks with employment-related
assaults, which result in compensable injuries.72 The Board pointed to a case in
which “another employee stabbed the claimant as a result of antagonism connected
to work”; that antagonism “arose from a series of negative interactions in the
workplace” rather than from interactions “unconnected to work.”73
As an example of a compensable neutral assault, the Board cited the Court’s
decision in Rose v. Cadillac Fairview Shopping Center Properties, Inc., which
involved an employee who “was abducted from the parking lot adjacent to her
67
See id. at 15–16.
68
See id.
69
Id. at 16.
70
Id. (citing Brogan v. Value City Furniture, 2002 WL 499721 (Del. Super. Ct. Mar. 27, 2002)).
71
Id. (citing Lauria v. M.A.C., 2006 WL 1688118 (Del. Super. Ct. June 20, 2006)).
72
Id.73
Id. citing James v. Diamond State Warehouse and Distribution, No. 1377939, (Del. I.A.B. Sept.
25, 2013)).
10
workplace, as she arrived early for her scheduled work shift, and was raped by an
unknown assailant.”74 According to the Board, the Court “found a reasonable
relation between the attack and the claimant’s employment where claimant was
required to arrive early for work and park in a certain area of the parking lot, and the
conditions of her employment therefore increased the likelihood of an attack of this
nature.”75 The assault was “neutral,” the Board explained, because it was committed
by “an unknown assailant who assaulted claimant for no personal reason.”76
Applying the above framework to the facts before it, the Board found no
evidence to suggest that the assault on Claimant was personally motivated.77 More
significantly, the Board stated that it was “reluctant to find that . . . Lockhart likely
arranged for the attack on Claimant.”78 The Board ran through the evidence
presented about the relationship between Claimant and Lockhart, and the Board
reiterated Detective Shatley’s conclusion that, more likely than not, Lockhart had
arranged the assault.79 Yet the Board was swayed by “the lack of direct evidence of
74
Id. (citing Rose v. Cadillac Fairview Shopping Ctr. Properties, 668 A.2d 782 (Del. Super. Ct.
1995)).
75
Id. (citing Rose v. Cadillac Fairview Shopping Ctr. Properties, 668 A.2d 782, 790 (Del. Super.
Ct. 1995)).
76
Id. at 17 (citing Rose v. Cadillac Fairview Shopping Ctr. Properties, 668 A.2d 782, 790 (Del.
Super. Ct. 1995)).
77
See id. at 19–20.
78
Id. at 18.
79
Id.
11
Lockhart’s involvement in the attack and the absence of any testimony from
Lockhart at the hearing.”80
Nonetheless, the Board concluded that Claimant’s injuries arose out of his
employment with Alside—a conclusion that the Board drew for two independently
adequate reasons. First, the Board determined that “credible evidence exist[ed] of
work-related tension that could have led to Claimant[’s] being a target for the
attack.”81 Second, the Board found that “[t]he conditions of employment at Alside
increased the likelihood of an attack by the unknown assailants as Claimant arrived
for work.”82
The Board appeared to base its “work-related tension” theory on the testimony
describing the assault as an inside job.83 In support, the Board pointed to Bill
Wilson’s statement to Detective Shatley that he thought that the assault was an inside
job because people had trouble with Claimant.84 The Board also noted that
“Claimant admitted that there was some tension between him and another employee
at Alside.”85 If the assault were organized by an insider other than Lockhart, the
80
Id.
81
Id. at 20.
82
Id.
83
See id. at 19.
84
Id.
85
Id.
12
Board reasoned, that “would still provide the necessary nexus between the attack
and employment for Claimant’s injuries to be compensable.”86
After comparing Claimant’s case to Rose, the Board found that the conditions
of employment at Alside increased the likelihood of the assault.87 Specifically, the
Board noted that Claimant’s case was “similar to Rose in that the conditions of
Claimant’s employment increased the likelihood of an attack of this nature due to
the early hour of Claimant’s arrival at work, the relative isolation of the building in
an industrial park, and the absence of any security camera to deter crime in the
parking lot.”88 The Board also found that in both Claimant’s case and in Rose, the
assailants were unknown.89 Yet the Board acknowledged that the two cases were
not identical.90 As Detective Shatley explained, the circumstances surrounding
Claimant’s assault suggested that Claimant had been targeted by the assailants; by
contrast, the assault in Rose was “purely random or ‘neutral’ in motivation.”91
III. STANDARD OF REVIEW
“The review of an Industrial Accident Board’s decision is limited to an
examination of the record for errors of law and a determination of whether
substantial evidence exists to support the Board’s findings of fact and conclusions
86
Id.
87
Id.
88
Id.
89
Id.
90
Id.
91
Id.
13
of law.”92 “Substantial evidence” is less than a preponderance of the evidence but
more than a “mere scintilla.”93 Specifically, substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”94
The Court may not “weigh the evidence, determine questions of credibility, or make
its own factual findings.”95 The Court reviews questions of law de novo.96
IV. DISCUSSION
A. The Board’s conclusion that work-related tension could have led
to Claimant’s assault is supported by substantial evidence
The theory of work-related tension that the Board endorsed was that “the
attack was an ‘inside job’ arranged by an unknown person at Alside.”97 The Board’s
endorsement of this theory is significant for two reasons. First, it means that the
Board believed that there was substantial evidence to support the conclusion that the
assault was an inside job. Second, it means that the Board did not believe that there
92
Powell v. OTAC, Inc., 223 A.3d 864, 870 (Del. 2019) (internal quotations omitted) (quoting
Roos Foods v. Guardado, 152 A.3d 114, 118 (Del. 2016)).
93
State v. Dalton, 878 A.2d 451, 454 (Del. 2005) (citation omitted).
94
Washington v. Del. Transit Corp., 226 A.3d 202, 210 (Del. 2020) (internal quotation marks
omitted) (quoting Powell v. OTAC, Inc., 2019 WL 6521980, at *4 (Del. Dec. 4, 2019)).
95
Powell v. OTAC, Inc., 223 A.3d 864, 870 (Del. 2019) (internal quotation marks omitted)
(quoting Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009)).
96
Dep’t of Transp. v. Pearson, 2020 WL 2520632, at *3 (Del. Super. Ct. May 15, 2020) (citing
Avallone v. Dep’t of Health & Soc. Servs., 14 A.3d 566, 570 (Del. 2011)).
97
Board Decision, at 19 (Trans. ID. 66202604). The Board initially framed this theory as a
“possibility,” but the surrounding text makes clear that the Board adopted the theory. For example,
(1) the Board had just rejected Lockhart’s involvement; (2) the Board went on to cite evidence
supporting the “inside job” theory; and (3) the Board stated that “[i]f the attack [were] an ‘inside
job’ by someone other than Eugene Lockhart, this would still provide the necessary nexus between
the attack and employment for Claimant’s injuries to be compensable . . . .” Id. at 18–19.
14
was substantial evidence to pin the inside job on any particular Alside employee—
even Lockhart.98
In support of its conclusion that the assault was an inside job arranged by an
unknown person, the Board pointed to three pieces of evidence: (1) “Bill Wilson
told Detective Shatley that he thought the assault was an ‘inside job’ because people
did not get along with Claimant,” (2) “Claimant admitted that there was some tension
between him and another employee at Alside,” and (3) “Mike Smulski described
Alside as a rough place to work, suggesting an environment where tension was
common.”99 Additional evidence in the record supports the Board’s conclusion. For
example, Pyatt testified that only an insider would know where Claimant regularly
parked, when Claimant would arrive, and that there were no security cameras on the
left side of the building.100
Alside correctly points out that all of this evidence is circumstantial; there is
no direct evidence to show the existence of an inside job or to identify the person
98
Id. at 18 (emphasis added) (“Given this lack of direct evidence of Lockhart’s involvement in the
attack and the absence of any testimony from Lockhart at the hearing, the Board is reluctant to
find that Eugene Lockhart likely arranged for the attack on Claimant.”); see id. at 19 (emphasis
added) (“If the attack [were] an ‘inside job’ by someone other than Lockhart, this would still
provide the necessary nexus between the attack and employment for Claimant’s injuries to be
compensable.”). The Court need only ensure that “substantial evidence exists to support the
Board’s findings of fact and conclusions of law.” Powell v. OTAC, Inc., 223 A.3d 864, 870 (Del.
2019) (internal quotations omitted) (quoting Roos Foods v. Guardado, 152 A.3d 114, 118 (Del.
2016)). Because the Board did not find or conclude that Lockhart was behind the assault, the Court
need not address Alside’s argument that “[a]ny testimony suggesting that Lockhart orchestrated
the physical attack on Claimant is purely speculative.” Reply Brief, at 5 (Trans. ID. 66285895).
99
Board Decision, at 19 (Trans. ID. 66202604).
100
Id. at 9.
15
behind it.101 But there is more than a “mere scintilla of evidence” to support a
reasonable inference that someone on the inside arranged the assault, which provides
“the necessary nexus between the attack and employment for Claimant’s injuries to
be compensable.”102 Accordingly, the Court finds that the Board’s conclusion that
work-related tension could have led to Claimant’s assault is supported by substantial
evidence.
B. The Board’s conclusion that the conditions of employment at
Alside increased the likelihood of Claimant’s assault is supported
by substantial evidence
As for the second issue in this appeal, there is no dispute that Rose is the
proper starting point. Indeed, Alside does not “deny[] the similarities to Rose in that
the conditions of Claimant’s employment increased the likelihood of an attack of
this nature due to the early hour of Claimant’s arrival at work, the relative isolation
of the building in an industrial park, and the absence of any security cameras to deter
crime in the parking lot.”103 Alside argues, however, that all of this is irrelevant
unless the assault was neutral.104 According to Alside, the Board could not have
found that the assault was neutral because it acknowledged that Claimant had
apparently been targeted.105
101
Reply Brief, at 3–4 (Trans. ID. 66285895).
102
State v. Dalton, 878 A.2d 451, 454 (Del. 2005) (citation omitted); Board Decision, at 19 (Trans.
ID. 66202604).
103
Reply Brief, at 6 (Trans. ID. 66285895).
104
Id. at 7.
105
Opening Brief, at 16–17 (Trans. ID. 66202604); Reply Brief, at 6–7 Trans. ID. 66285895).
16
Thus, Alside’s understanding of Rose is that a claimant can recover only if (1)
the conditions of employment make the assault more likely and (2) the assault is
neutral in motivation.106 But the Court has never read Rose to require both elements.
For example, in Delaware Transit Corporation v. Hamilton, the Court explained that
the Court in Rose “found that the attack arose out of employment because the
conditions of employment created an increased likelihood of attack.”107 The Court
in Hamilton did not mention the neutral nature of the attack. In Lauria v. M.A.C.,
the Court noted that because the employee in Rose “was assaulted ‘for no personal
reason to her,’ [the assault] was ‘neutral’ and not ‘personal.’ Therefore, it arose out
of the employment.”108 The Court in Lauria did not mention the conditions of
employment. Thus, the Court has read Rose to require one element or the other, but
never both.
Regardless, both elements are present here. First, as noted above, Alside
concedes that “the conditions of Claimant’s employment increased the likelihood of
106
See Opening Brief at 17 (quoting Board Decision, at 20 (Trans. ID. 66202604)) (“The
conclusion by the Board that ‘[t]he conditions of employment at Alside increased the likelihood
of an attack by the unknown assailants as Claimant arrived for work” is irrelevant and in error as
the substantial evidence shows that this simply was not a purely random or “neutral” attack.”).
107
Del. Transit Corp. v. Hamilton, 2001 WL 1448239, at *2 (Del. Super. Ct. Oct. 31, 2001).
108
Lauria v. M.A.C., 2006 WL 1688118, at *3 (Del. Super. Ct. June 20, 2006) (ellipses omitted)
(quoting Rose v. Cadillac Fairview Shopping Ctr. Properties, 668 A.2d 782, 785, 790 (Del. Super.
Ct. 1995)).
17
an attack” for a number of reasons.109 Second, following Rose, the assault on
Claimant was neutral in motivation. The Court in Rose wrote:
There is no dispute of fact that the attack on the plaintiff was by an
unknown assailant, who assaulted her [the employee] for no reason
personal to her. She did not know this perpetrator prior to the attack.
Thus, the attack was of the “neutral” category that brings it within the
realm of worker’s compensation . . . .110
So the Rose analysis is twofold: (1) whether the assailant is unknown and (2)
whether the employee was attacked for no reason personal to the employee.111 Here,
as Alside notes, the “substantial evidence shows . . . that the identities of Claimant’s
attackers remain unknown.”112 And, as discussed above, there is no evidence to
suggest that Claimant was assaulted for a reason personal to him (e.g., a gambling
debt). Thus, under Rose the assault on Claimant was neutral in motivation.
The Board correctly identified Rose’s twofold definition of a neutral
assault.113 Yet the Board went on to comment that “this case differs from Rose in
that evidence suggests the attackers in the current case specifically targeted Claimant
109
Reply Brief, at 6 (Trans. ID. 66285895).
110
Rose v. Cadillac Fairview Shopping Ctr. Properties, 668 A.2d 782, 790 (Del. Super. Ct. 1995).
111
See Lauria v. M.A.C., 2006 WL 1688118, at *3 (Del. Super. Ct. June 20, 2006) (quoting Rose,
668 A.2d at 785, 790) (“In Rose v. Cadillac Fairview Shopping Center Properties, . . . [t]he court
found because the employee was assaulted ‘. . . for no personal reason to her,’ it was ‘neutral’ and
not ‘personal.’ Therefore, it arose out of the employment.”).
112
Opening Brief, at 18 (Trans. ID. 66202604).
113
Board Decision, at 7 (citing Rose, 668 A.2d at 790) (“The Court [in Rose] noted that the assault
was by an unknown assailant who assaulted claimant for no personal reason, thereby placing the
attack in the ‘neutral' category.”) (Trans. ID. 66202604).
18
rather than the attack being purely random or ‘neutral’ in motivation.”114 Despite
this apparent inconsistency, the Board ultimately found in favor of Claimant on the
ground that the conditions of his employment with Alside made the assault more
likely. The Board may not have thought that the compensability of Claimant’s
injuries turned on whether the assault was neutral. As noted above, this is how the
Court in Hamilton read Rose. Regardless, Alside does not dispute the Board’s actual
conclusion in this case—that the conditions of employment at Alside increased the
likelihood of Claimant’s assault. The Court finds that this conclusion is supported
by substantial evidence.
V. CONCLUSION
The Board concluded that Claimant’s injuries arose out of employment
because work-related tension could have caused the assault and because the
conditions of employment at Alside made the assault more likely. Both conclusions
are supported by substantial evidence. Accordingly, the Board’s Decision and Order
is AFFIRMED.
IT IS SO ORDERED.
Jan R. Jurden
Jan R. Jurden, President Judge
cc: Prothonotary
114
Id.
19