June 2021

It’s All in the Wrist – Evolving Trends in Carpal Tunnel Syndrome Favor the Defense
For many years, the common wisdom has held that carpal tunnel syndrome occurs through repetitive use of the hands and fingers; typing is often given as an example of what causes this malady. Consistent with this common wisdom, the Industrial Accident Board often found carpal tunnel syndrome to be related to one’s employment performing repetitive hand movements. However, the Board appears to be undergoing a paradigm shift in the compensability of allegedly work-related carpal tunnel syndrome, consistent with a growing body of scientific literature on the subject.
A recent Board Decision has adopted the most recent scientific literature on carpal tunnel syndrome. Specifically, the Board accepted the opinion of a medical expert that recent scientific studies were performed comparing keyboarding work with the general population and the occurrence of carpal tunnel syndrome; those studies showed no increased occurrences of carpal tunnel syndrome with individuals who performed regular keyboarding work. See Lewis v. State, 1481670 (Feb. 9, 2021). However, the expert in that case did note an increased occurrence of carpal tunnel syndrome in professions “with a forcible use of the wrist against resistance,” with examples of meat packing plants and work with vibrating tools.
It is also worth noting that carpal tunnel syndrome has been alleged as a consequence of acute trauma, whether to the shoulder, wrist, hand, or fingers. However, much of the same science applies. The Board has accepted a medical opinion, offered in the case of an alleged traumatically induced carpal tunnel syndrome, that “60 percent of CTS cases have an idiopathic, or unexplained, origin.” Woodie v. Malik’s Repair, Inc., IAB No. 1496417 (Nov. 13, 2020). The idiopathic nature of the condition can combine with testimony on a lack of direct trauma, and/or a delay in symptoms, to avoid compensability. See Gonzalez-Hernandez v. JT Hoover Concrete, IAB No. 1465912 (Sep. 6, 2019).
In sum, the Board is casting a more critical eye on allegations of carpal tunnel syndrome. For that reason, claims of carpal tunnel syndrome should be investigated thoroughly, with the goal of raising a vigorous defense where possible. Following these trends and the Board’s guidance on same, allegations of carpal tunnel syndrome from repetitive hand or finger movement should be scrutinized to a greater extent, while a diagnosis following trauma should be investigated for prior symptoms, delays in symptoms, and potential idiopathic or alternative causes of the condition and/or symptoms. A full investigation, supported by an expert examination, will help to continue this trend in favor of the defense.
If you should have any questions on this issue, then please contact any Attorney in our Workers’ Compensation Department.
Plaintiff’s Discrimination Claim Survives Motion to Dismiss
Plaintiff was employed as a manager by Defendant from October 21, 2001, until her termination on January 25, 2017. Plaintiff was told she was terminated because she closed Defendant’s food store a half an hour early without permission. Plaintiff denied she closed the store early and alleged that she was terminated based on her sex, claiming that two male assistant managers had closed their stores early in the past and were not disciplined. Plaintiff further alleged she was fired in retaliation for prior sexual discrimination complaints. Defendant filed motions to dismiss Plaintiff’s claims.
In order to prove discrimination, Plaintiff must establish that she is a member of a protected class; she was qualified for the position; she suffered an adverse employment action; and the action occurred under circumstances that could give rise to an inference of intentional discrimination.
Defendant argued that the Plaintiff failed to state a claim for sex discrimination because “she failed to allege facts sufficient to show that she was similarly situated with the male managers and thus would be asking the Court to assume that these two male managers were worthy of termination for their store closures.”  However, the Court noted that the Plaintiff only need to allege “enough factual matter (taken as true) to suggest the required elements, so the Court concluded that the Plaintiff’s factual allegations are adequate to state her claim. Therefore, the Court denied the Defendant’s motion regarding the sexual discrimination claims.
As for Plaintiff’s retaliation claim, she must prove that she engaged in a conduct protected by Title VII; the employer took adverse action against her; and there is a causal link between her protected conduct and the employer’s adverse action. However, the Court found that the Plaintiff did not sufficiently allege that she engaged in a protected activity, because she only alleged that she complained of a male manager being favorably treated. Therefore, the Court granted the Defendant’s motion to dismiss Plaintiff’s Complaint with respect to the retaliation claims.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Rodriguez v. Wendover, Inc, 2021 WL 2117205, at *1 (D.Del., 2021)
Ice Cream and Tastykakes
Like a cut scene from Willy Wonka & the Chocolate Factory, a cart full of Tastykakes collided with an electric shopping cart in a supermarket. Unfortunately, Charlie and Willy Wonka were nowhere to be found. Instead, the collision resulted in injuries alleged by the Plaintiff, who was operating the electric shopping cart.
Plaintiff sued the Supermarket and the Delivery Vendor alleging the entities acted negligently in proximately causing the collision and resulting injuries.
The Supermarket moved for summary judgment averring it had no duty, contractual or otherwise, to oversee the Delivery Vendor’s activities or employees. Further, that it provided no instruction, direction, or oversight regarding how the Delivery Vendor stocked its goods. In response, Plaintiff argued the Supermarket had a duty to protect its invitees with reasonable safety procedures.
The sole legal question for the Delaware Superior Court was what duty, if any, the Supermarket owed to Plaintiff with respect to its delivery vendors. For that, the Court looked to prior case precedent that involved a fall at a grocery store caused by condensation dripping from a vendor’s ice cream cart. The Court held the Supermarket owed a duty to act as a ‘reasonably prudent shopkeeper,’ which was a question for the jury. Therefore, the Supermarket’s Motion for Summary Judgment was denied.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Heine, et al. v. J B Inc., et al., 2021 WL 2228365 (Del. Super. Ct. June 2, 2021).
Lysa Kaminski, legal secretary , is very excited about the purchase of her new home in Elkton, Maryland. Despite the fact the cicada’s have also taken up residence. Congratulations, Lysa!
Charlean Baird, legal secretary and new mom-mom is happy to welcome Bailey Gray to the family. Baily was born on May 30th at 3 pm, weighing 7 lb 2 oz. Congratulations, Charlean!
Shiree Sibbley, paralegal, is happy to announce, her daughter Asiya Anderson graduated with honors from A.I High School. Shiree’s son Truth Anderson has also passed to the third grade. She is very proud of them both. Good work, Asiya and Truth!
Happy anniversary to Sandra Glackin and Nora Silpath who both celebrated their 10 year anniversary with the Firm. We are grateful for our preeminent staff!
While paralegal John Jackson was celebrating May the Fourth in Star Wars world. He had the fortunate luck of meeting Jon Favreau, creator of The Mandalorian. While they got talking about how big a Star Wars fans, Mr. Favreau offered John an extra spot on the upcoming season of the show. So, look for John Jackson in season three.
Please contact Page Chase, Firm Administrator, to submit exciting news including, promotions, adjuster updates, accolades, accomplishments, and the like. You may also submit ads for open positions.