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Sweeney v. Wal-Mart

Superior Court of Delaware, New Castle

July 31, 2013

MICHAEL SWEENEY, Appellant,
v.
WAL-MART, Appellee

Submitted: June 7, 2013

Upon Appellant's Appeal from the Industrial Accident Board's Decision.

Michael D. Bednash, Esquire; Kimmel, Carter, Roman & Peltz. P.A., Attorney for Appellant Sweeney.

Delia A. Clark, Esquire; Rawle & Henderson, L.L.P., Attorney for Appellee Wal-Mart.

OPINION AND ORDER

M. JANE BRADY SUPERIOR COURT JUDGE

INTRODUCTION

This claim arises from a December 28, 2008 work accident in which Claimant/Appellant Michael Sweeney ("Sweeney") injured his leg while working for Employer/Appellee Wal-Mart.[1]The accident was caused when a Wal-Mart customer reversed her vehicle, striking Sweeney's right leg.[2] After a hearing on the merits on June 3, 2010, the Industrial Accident Board ("IAB", "the Board") determined that Sweeney developed reflex sympathetic dystrophy ("RSD") in his right lower leg as a result of the work accident.[3] The Board's opinion granting benefits was dated December 17, 2010.[4]

On August 9, 2011, Sweeney filed a Petition of Additional Compensation Due. In the petition, Sweeney alleged that he had developed RSD in his right upper extremity in addition to the leg injury that had already been recognized by the IAB.[5] Sweeney sought the acknowledgement of RSD in his right upper extremity, payment of outstanding medical expenses, and payment of temporary total disability benefits.[6] Wal-Mart denied that Sweeney had RSD in his right upper extremity and denied that Sweeney's right upper extremity symptoms were caused by the work injury.[7] Wal-Mart also contended that the medical treatment received by Sweeney for his right upper extremity symptoms was unreasonable and excessive and that, contrary to Sweeney's claim of total disability, Sweeney was capable of returning to full-time sedentary work.[8] Sweeney's petition was heard by the IAB on February 10, 2012.[9] The petition was denied by the IAB in a May 22, 2012 opinion.[10] Sweeney has appealed the denial to Superior Court.[11]

In his February 2012 testimony before the IAB, Sweeney explained that he developed symptoms of RSD in his right upper extremity approximately six months after the original work accident[12]. These symptoms included a burning sensation from his right shoulder blade down his right arm and into his right hand, sensations of pins and needles, his right hand getting colder than his left hand, and red discoloration and swelling in his right hand.[13]

Dr. Bruce Grossinger testified on Sweeney's behalf. Sweeney had been examined by Dr. Grossinger and had received numerous nerve block injections from Dr. Grossinger's associate, Dr. Brajer.[14] The nerve block injections were intended to address the patient's symptoms in both the right lower extremity and the right upper extremity.[15] Dr. Grossinger opined that Sweeney has RSD of both his right upper and lower extremities, [16] that the medical treatment received by Sweeney had been reasonable and necessary, [17] and that the need for this medical treatment was causally-related to the work accident.[18]

Dr. Grossinger suggested that some neck and right arm symptoms were present during his initial examination of Sweeney, but that the focus at the time was on Sweeney's leg and foot.[19]Dr. Grossinger further opined that Sweeney is totally disabled due to the severity of the RSD in both locations.[20] However, Dr. Grossinger subsequently clarified that Sweeney might be able to work at a part-time job of less than twenty hours per week, where he could change positions as needed, and where he would not be required to lift more than ten pounds.[21] Dr. Grossinger testified that he was not currently aware of such a job, but that he would consider returning Sweeney to work if such a job could be found.[22]

Two medical experts, Dr. John Townsend and Dr. Wilhelmina Korevaar, testified on behalf of Wal-Mart. After examining Sweeney and reviewing his medical records, Dr. Townsend concluded that Sweeney's medical treatments had exceeded what is reasonable or necessary.[23]He suggested that the locations in which the injections had been administered were inappropriate for the treatment of the patient's symptoms.[24] Dr. Townsend also opined that the treatments had been improperly monitored by Dr. Brajer.[25] According to Dr. Townsend, Delaware Worker's Compensation Practice Guidelines suggest that a patient be seen every three to four weeks between injections to determine whether the patient is experiencing functional gains.[26] In Dr. Townsend's opinion, Dr. Brajer had been administering the injections without the appropriate follow-up appointment or attempts to measure functional gains.[27] Dr. Townsend opined that it would be unreasonable to continue the injections when, as in Sweeney's case, a patient failed to show lasting improvement.[28]

As a result of his physical examination of Sweeney, Dr. Townsend found a two degree difference in temperature between Sweeney's arms and a mild difference in color between Sweeney's hands.[29] Dr. Townsend did not observe other symptoms of RSD in Sweeney's right arm such as allodynia, atrophy, differences in sweat, differences in hair growth, changes to the nail beds, shiny skin, or swelling.[30] Although Sweeney complained of allodynia in his right leg, Dr. Townsend found other RSD symptoms (e.g., hair growth difference, color differences, sweating differences, and temperature differences) noticeably absent in Sweeney's lower extremities.[31] Further, Dr. Townsend opined that while RSD can travel "horizontally" (i.e., from one side of the body to the other at the same level relative to the patient's spine), it is unlikely to travel "vertically" (i.e., over multiple levels, such as from the lower extremity to the upper extremity or vice versa).[32] Finally, Dr. Townsend's opined that Sweeney was capable of returning to sedentary work.[33]

Dr. Korevaar testified that Sweeney lacks the sufficient minimum symptoms to be diagnosed with RSD in the right upper extremity[34] and that Sweeney's upper extremity symptoms are not causally related to the work injury.[35] Dr. Korevaar testified that according to guidelines set by the American Medical Association, a patient would need to present with at least eight out of eleven specific symptoms in order to be diagnosed with RSD.[36] When Dr. Korevaar examined Sweeney, she found only three out of eleven symptoms in his right leg.[37] Dr. Korevaar further testified that she did not find evidence of any physical problem in Sweeney's upper extremities.[38] Dr. Korevaar also opined that RSD could not travel from the leg to the arm.[39] If RSD manifested in the leg first and then subsequently in the arm, the RSD of the arm would have to have been caused by a separate injury.[40] In light of the evidence, Dr. Korevaar agreed with ...


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