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Simon v. Croda, Inc.

Superior Court of Delaware, New Castle

May 5, 2014

JOHN R. SIMON, Claimant-Below/Appellant,
CRODA, INC., Employer-Below/Appellee.

Submitted: January 24, 2014

Corrected [*] : May 19, 2014

On Appeal from a Decision of the Industrial Accident Board of the State of Delaware.

Kenneth F. Carmine, Esquire, Potter, Carmine & Associates, P.A., Wilmington, DE, Attorney for Claimant-Below/Appellant John R. Simon

Maris Paris Newill, Esquire, Heckler & Frabizzio, Wilmington, DE, Attorney for Employer-Below/Appellee Croda, Inc.


Diane Clarke Streett, Judge


On December 18, 2008, Appellant John R. Simon (the "Appellant") sustained injuries to his right wrist, right shoulder, cervical spine, left thigh, and head when he slipped and fell from a 5 ½-foot metal platform while working for Appellee Croda, Inc. (the "Employer"). Appellant received a period of total disability compensation for his injuries and compensation for a 33% impairment of his cervical spine.[1]

On April 2, 2012, Appellant filed a Petition to Determine Additional Compensation Due with the Industrial Accident Board (the "Board"). He sought a determination as to the "[r]elationship of left shoulder injury to work accident."[2]On October 10, 2012, Appellant filed a second Petition to Determine Additional Compensation Due seeking compensation for medical expenses related to left shoulder surgery.[3]

On June 7, 2013, the Board found that Appellant did not meet his burden of proving, by a preponderance of evidence, that his left shoulder injuries (impingement and cartilage damage[4]) were caused by the 2008 work accident. The Board also denied the Petition that sought "payment of medical expenses related to left shoulder surgery."[5]

For the reasons set forth below, the Board's decision is hereby affirmed.

Factual and Procedural Background

On March 26, 2013, a hearing before the Board was held.

There was testimony that Appellant was seen by eight medical providers from 2001 through the date of the hearing before the Board; Dr. Jeffrey West, P. Michael Glowacki, M.D. ("Dr. Glowacki") (of Total Care Physicians), Dr. Noyes (of First State Orthopedics), Dr. Sardo[6] (of Concentra), Michael John Pushkarewicz, M.D., F.A.C.S. ("Dr. Pushkarewicz") (of First State Orthopedics), Dr. Rastogi (of Delaware Neurosurgical Group), Dr. Glassman, and John Barratt Townsend, III, M.D. ("Dr. Townsend").

At the hearing, Appellant testified that he was 64 years old and that he had worked for the Employer as a security officer for approximately eight years before he was injured in the 2008 work accident.[7]

Appellant initially denied any injury to his shoulder or treatment for his left shoulder prior to the work accident.[8] However, when confronted with a 2001 chiropractor's report concerning left shoulder pain and a neck twinge in 2001, Appellant admitted that he lost "his balance, caught a wall and felt a twinge in his left shoulder and neck" while wallpapering in October 2001.[9]

The 2001 report, from the chiropractor (Dr. West) to Appellant's family physician (Dr. Glowacki) noted that Appellant had pain in the glenohumeral joint of his left shoulder, numbness throughout his left arm, difficulty moving his left arm, and Appellant's symptoms worsened at night.[10] Appellant treated his left arm symptoms with ice and heat, a ventilator, sleeping pills, and Xanex, none of which provided him with relief.[11]

Appellant testified that he did not recall Dr. West's report until his attorney presented him with a copy at the hearing.[12]

Appellant further testified that he did not follow up with any physicians or receive treatment for his left shoulder after his visit to Dr. West.[13] However, Appellant conceded that his medical records show that he was treated by Dr. Noyes of First State Orthopedics in November 2001 for left shoulder pain, decreased range of motion, and neck pain that started shortly after the wallpapering accident in October 2011.

Dr. Noyes' report characterized Appellant's left shoulder pain "as a classic impingement arch from 100 to 140 . . . when it actually gets better when [Appellant's] arm is up over his head" and that an x-ray of Appellant's left shoulder showed "narrow humeral acromial distant type three acromion, unremarkable."[14] Dr. Noyes' report also said that Appellant had received a cortisone shot to treat his left shoulder on November 13, 2001. Appellant said that he did not return to Dr. Noyes for further treatment because "whatever the problem was [Dr. Noyes] had taken care of it."[15]

On the date of the work accident (December 18, 2008), Appellant testified that he worked a 12-hour shift from 6:00 p.m. to 6:00 a.m.[16] Appellant's duties included changing the safety message on a large marquee in front of a 5 ½-foot metal platform located at the entrance to his work site.[17]

Appellant testified that he climbed five wooden steps that led to a platform, removed the plastic 5-inch letters from the existing message, "stoop[ed] down, " and his left leg "shot out from under [him]" as he stood up because he did not notice the frost that had formed on the top step.[18] Appellant said that he "went up in the air" and "fell onto the platform" on his side or back.[19] Because his mid-back hung over the platform and he felt his body slipping over the side of the platform, he "turned with [his] right hand and tried to grab the marquee sign."[20] Appellant "barely went off the board on [his] left side, " but he was unable to testify with certainty whether he struck his left shoulder.[21] Appellant jammed his right thumb, "hit the ground" head first, and ended up flat on his back.[22] After one minute, Appellant sat up, discovered that he had broken his glasses and the clip on his handset, and went to the guard shack to report the fall to his supervisor by radio.[23]Appellant testified that he fell at 12:25 a.m.[24]

Appellant thought that he had broken his neck because he "felt bones crack all the way down [his] back."[25] Appellant's right hand was swollen, he sustained a 4-inch abrasion to his left thigh, and he had "aches and pains all over" his neck, arms, and legs.[26] Appellant treated his left leg injury with a first aid kit, put an ice pack on his right hand, and took "some Excedrins."[27]

Appellant further testified that his supervisor wrote a slip for him to go to Concentra or Christiana Hospital. However, because Appellant did not have anyone to relieve him and he knew Concentra did not open until 7:00 a.m., he stayed in the office until his shift ended at 6:00 a.m.[28]

Appellant then went to Concentra on the morning of the work accident.[29]On the patient questionnaire that Appellant completed and signed, Appellant reported that he "slipped, fell on head first, injured right hand, right temple, . . . neck, and left upper thigh."[30] Appellant asserted that he reported a problem with his shoulders and that "they didn't write it down."[31] Appellant also testified that Dr. Sardo (at Concentra) physically examined him and requested an ambulance to take him to Christiana Hospital because she thought that he might have broken his neck.[32] However, Appellant drove himself to the emergency room (located across the street from Concentra).[33]

The following day (December 19, 2008), Appellant went to First State Orthopedics and saw Dr. Pushkarewicz (a specialist in orthopedic surgery) for treatment of his right wrist.[34]

Appellant testified that he "was still having problems with the neck, the hands, [and] the shoulders" at the end of December 2008.[35] He said that it was difficult to sleep on his left side because the "shoulder pain would just feel like someone was stabbing [him]" and that he would get "needles and pins" down his hands.[36] Appellant said that he told Dr. Pushkarewicz that he was unable to sleep on his left side, but Dr. Pushkarewicz "would constantly tell [him]" that he thought that Appellant's "left shoulder problems" were coming from Appellant's neck.[37]

Appellant testified that his family physician (Dr. Glowacki) referred him to Dr. Rastogi to treat his neck injury.[38] Dr. Rastogi operated on Appellant's neck over a year after the work accident.[39] According to Appellant, the neck surgery "somewhat" improved Appellant's neck pain, but "not to the point where it's better."[40] Appellant also testified that the surgery did not relieve Appellant's left shoulder and arm symptoms.[41]

On November 30, 2011, Dr. Pushkarewicz performed surgery on Appellant's left shoulder. Following the left shoulder surgery, Appellant said that he continued to "feel the pain, " but it was "not as severe, " and that he "still can't sleep on [his left] side."[42]

Appellant denied any injuries to his left shoulder between the 2008 work accident and the date of his left shoulder surgery at the end of 2011.[43]

In addition, Appellant presented expert deposition testimony from Dr. Pushkarewicz. However, Dr. Pushkarewicz did not review Appellant's pre- and post-work accident medical records but "just reviewed what was in [his] chart on [Appellant]" and the report of Dr. Townsend (the Employer's expert) in preparation for his deposition.[44]

Dr. Pushkarewicz testified that he does not treat the spine and that Appellant was referred to him for the treatment of Appellant's right hand and wrist.[45]

During the initial visit on December 19, 2008 (the day after the work accident), Appellant "did not relate anything of significance" other than the history of the work accident."[46] Appellant reported to Dr. Pushkarewicz that he slipped at work, "struck his head rather forcefully, " broke his glasses, and later realized that he hurt his right hand.[47] Appellant also reported that he had a CT scan of his neck at Concentra, an x-ray of his hand and thumb at Christiana Hospital, his hand was "splinted, " and he was given Percocet.[48] Dr. Pushkarewicz physically examined Appellant, whose main complaints were "his right hand and wrist and about his neck, " and ordered an MRI of Appellant's right wrist.[49]

Dr. Pushkarewicz next saw Appellant eleven days later, on December 30, 2008. At that time, Dr. Pushkarewicz focused on treating Appellant's right wrist.[50]Although there is no indication that Appellant complained to Dr. Pushkarewicz of any left shoulder symptoms on December 30, 2008, Dr. Pushkarewicz testified that a note from Concentra, dated that same day (December 30, 2008), stated that Appellant's "[n]eck, back and shoulders [were] giving him pain as well in the morning."[51]

Dr. Pushkarewicz testified that Dr. Sardo (from Concentra) called him in January 2009 and asked that he "look at [Appellant's] shoulders."[52] On January 23, 2009 (the next office visit), Appellant told Dr. Pushkarewicz that "he felt that there was something wrong with his neck and his shoulders."[53] He did not relate any pre-work accident history of shoulder problems to Dr. Pushkarewicz.[54] Dr. Pushkarewicz examined Appellant's shoulders and did not detect "any significant tenderness about the [left] shoulder."[55] He testified that he was able to flex Appellant's left shoulder 160 degrees (which is "a little shy of perfect") and abduct it 90 degrees (which is normal), but this caused Appellant to have pain in his neck.[56] Although Appellant was able to lift his left arm ...

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