March 2015

WORKERS’ COMPENSATION REPORTS

THE WRIST BONE’S CONNECTED TO THE . . . ULNAR AND MEDIAN NERVES?  BOARD DIFFERENTIATES BETWEEN PARTS OF THE WRIST TO FIND SURGERY NOT WORK-RELATED

Claimant sustained a compensable work injury when he felt a pop in his left wrist
with immediate onset of pain, numbness, and tingling.  Diagnostic testing confirmed
extensive disruption of the triangular fibrocartilage complex (TFCC), one of the
supporting structures on the ulnar side of the wrist.  Claimant continued to complain
of numbness in the fourth and fifth fingers, but EMG testing was normal for ulnar
and median nerve function.  Dr. Osterman’s assessment was mechanical derangement
of the left wrist with injury to the triangular fibrocartilage and possibly the
lunotriquetral ligament.

Dr. Osterman performed surgeries in April of 2011 to debride the tears and in October
of 2012 to shorten the ulna bone in order to stabilize the ligaments.  Claimant
recovered from surgery despite some ongoing pain and stiffness, but was released
from active treatment and to medium-duty work in March of 2013.  Claimant returned
to Dr. Osterman in September of 2013 reporting new onset of pain, numbness, and
tingling in the dorsum of the left wrist.  Dr. Osterman testified that the work
injury and subsequent surgeries caused a progression in symptoms to the median and
ulnar nerves eventually requiring surgery for carpal tunnel and ulnar nerve release.

Dr. Crain testified on behalf of the Employer and differentiated the various anatomic
structures of the wrist.  Dr. Crain testified that the work injury was a clear and
distinct injury/TFCC tear, without injury to the carpal tunnel or cubital tunnel.
Dr. Crain highlighted the office notes of Dr. Osterman, which did not indicate
symptoms or findings consistent with carpal tunnel or cubital tunnel syndrome until
after claimant had been released post-surgery and returned to work performing labor-intensive
activities.

Claimant then presented with new symptoms, changes in his neurologic examination,
and new findings on repeat neurologic testing, which only occurred after his post-surgery
release. Therefore, the Board found that the disputed surgery for carpal tunnel
release and cubital tunnel release was not related to the left wrist work injury.

PRACTICE POINTER

When referring cases for surveillance investigation, make sure the investigators
are licensed in Delaware and that the licenses remain valid during the entire period
of surveillance.

LITIGATION CASE LAW UPDATE

PLAINTIFFS “STRAIN” DELAWARE NOTICE PLEADINGS STANDARD IN HOTEL BATHTUB SLIP-AND-FALL SUIT

The Superior Court denied Defendants’ Rodeway Inn & Choice Hotels International,
Inc.’s Motion to Dismiss upholding Delaware’s notice pleading standard’s “traditional
low threshold,” as Plaintiffs had “in a meager manner, pled the requisite elements
for their negligence suit.”

The suit arises out of an alleged slip-and-fall at Rodeway Inn in Dover, Delaware
where Plaintiff John F. Wood slipped while trying to use the bathtub.  The Defendants
moved for the Court to dismiss the suit on the basis that the Complaint failed to
state a claim upon which relief can be granted and that the Complaint failed to
state the conditions of the negligence of the Defendants with “particularity.”

The Defendants cited Brown v. Dover Downs, Inc. and argued that Brown determined
that innkeepers do not have the duty to warn about the dangers of using hotel bathtubs.
However, the Court ruled that Defendants’ interpretation of Brown is too broad,
and that Brown is “limited to circumstances involving bathmats.” The portion of
Defendants’ argument that was contingent on Brown was dismissed by the Court as
it did not apply to the instant matter.

The Court did, however, take interest in Defendants’ other argument regarding the
vagueness of the Complaint, as it was noted that only in Plaintiffs’ Response to
the Motion to Dismiss, and not their Complaint, did they indicate that there was
some foreign substance that caused the alleged slip-and-fall. The Defendants, arguing
about the vagueness of the Complaint, led the Court to consider the issue of “particularity”
in the Complaint.

The Court outlined the 5 elements that a Plaintiff must detail in a negligence suit:
“1) duty; 2) breach of duty; 3) who breached the duty; 4) what act or failure to
act caused the breach; and 5) the purportedly offending party.”

The Court denied Defendants’ Motion with some reservations, as the Complaint “just
barely” pled all 5 elements. However, the Court requested that the “Plaintiffs should
provide a more detailed account of their allegations going forward, and not to continue
to strain the outermost boundaries of the notice pleading standard.”

For further discussion of this issue, and specifically, what to do if you are served
with a vague negligence Complaint, please feel free to contact one of our Liability
Department Attorneys.

John F. Wood & M. Kristina Wood v. Rodeway Inn, et al. (March 4, 2015)

EMPLOYMENT LAW UPDATE

BUSINESSES MUST NOW HAVE ATTORNEY REPRESENTATION AT UNEMPLOYMENT INSURANCE PROCEEDINGS

The Delaware Department of Labor Division of Unemployment Insurance has provided
guidance regarding Delaware Superior Court cases Marshall-Steele v. Nanticoke Memorial
Hospital and Caldwell Staffing Services v. Unemployment Insurance Appeal Board,
as well as Title 19 of the Delaware Code.

The Division of Unemployment Insurance now requires that an Employer that is incorporated
have a licensed attorney for legal representation before the Unemployment Insurance
Appeal Referee and the Unemployment Insurance Appeal Board. The attorneys of the
Employment Law Department at Heckler & Frabizzio are available to represent your
Corporate Employer interests in these Unemployment Insurance proceedings.

Attorneys at Heckler & Frabizzio are available if you need assistance on any Employment
Law related matters.  Please feel free to call John Gilbert, 302-573-4803

ANNOUNCEMENTS

Community Involvement

Liability Department associate attorney Michael J. Logullo served as coach of the
Mount Pleasant High School mock trial team that participated in the Delaware High
School Mock Trial Competition, which was held at the New Castle County Courthouse
on February 27th and 28th.

Anniversary

Heckler & Frabizzio is very happy to celebrate Betty O’Shields’ 25th anniversary
with the firm. Betty works in the billing department and is an integral part of
our billing team. Thank you for all of your hard work and dedication Betty!