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Duque-Gomez v. BJ's Wholesale Club, Inc.

Superior Court of Delaware, New Castle

November 26, 2013

MARIA DUQUE-GOMEZ, Claimant-Appellant,
v.
BJ'S WHOLESALE CLUB, INC., Employer-Appellee.

Submitted: September 3, 2013

Upon Appeal from the Decision of the Industrial Accident Board.

Maria Duque-Gomez, pro se.

Christian G. McGarry, Esquire, Elzufon Austin Tarlov & Mondell, P.A., Wilmington, Delaware, Attorney for Employer-Appellee BJ's Wholesale Club.

OPINION AND ORDER

Paul R. Wallace, Judge

I. INTRODUCTION

Maria Duque-Gomez[1] appeals the February 1, 2013 decision of the Industrial Accident Board (the "Board").[2] The Board terminated Ms. Duque-Gomez's disability benefits, which were granted after a July 16, 2008 accident that caused her injuries (the "Accident"), upon BJ's Wholesale Club's ("BJ's") Petition for Termination of Total Disability Benefits (the "Petition"). Ms. Duque-Gomez alleges: (1) that the Board erroneously accepted the testimony of BJ's expert witness, Dr. Andrew J. Gelman, D.O., over the testimony of her own expert, Dr. Barry L. Bakst, D.O.; and (2) that BJ's negligence delayed her treatment, worsening her medical condition. BJ's claims that the Board's decision to credit Dr. Gelman over Dr. Bakst meets the substantial evidence standard of review. BJ's claims also that any new allegations of negligence must be considered waived as not raised before the Board below.

Because the Board relied on adequate evidence and did not abuse its discretion, its decision granting BJ's Wholesale Club's April 2012 Petition for Termination of Total Disability Benefits is hereby AFFIRMED.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Ms. Duque-Gomez's Relevant Background

Ms. Duque-Gomez is a forty-nine year-old[3] high-school graduate from Colombia who has lived in the United States since 2001. Since coming to the United States, Ms. Duque-Gomez took a Project Management course at Delaware Technical & Community College ("Del Tech"). And although Ms. Duque-Gomez's primary language is Spanish, she satisfactorily completed seven Del Tech continuing education classes; all were taught exclusively in English.

At the time of the Accident Ms. Duque-Gomez was employed by BJ's in the bakery and food court where she made food, took food orders, changed money, and cleaned the kitchen. Ms. Duque-Gomez no longer works at BJ's.

B. The Accident

On July 16, 2008, Ms. Duque-Gomez injured her cervical spine, lumbar spine, and right ankle while engaged in her work responsibilities in BJ's cafeteria area. Ms. Duque-Gomez was injured while pulling a cart loaded with muffin trays. The trays slid forward and hit Ms. Duque-Gomez in the face. She sustained a blow to the left side of her face and to her left upper arm. Ms. Duque-Gomez avoided a fall by grabbing a sink with her right hand.

C. Ms. Duque-Gomez's Medical Treatment[4]

Just after the Accident, Ms. Duque-Gomez was in pain but continued her work and completed her shift that day before going home. The next day, Ms. Duque-Gomez visited Dr. Tribuiani, her primary care physician, who noted some tenderness and bruising on the left side of her face and her left upper arm, where the muffin trays had hit. About one month later, on August 8, 2009, Ms. Duque-Gomez visited Dr. Barry L. Bakst. At that time Ms. Duque-Gomez reported to Dr. Bakst that she had received treatment immediately after the Accident and had been cleared to return to work the following week. Several exploratory procedures, including cervical and lumbar MR imaging and electrophysiologic testing, yielded normal results. After returning to work, however, Ms. Duque-Gomez complained ...


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