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Simmons v. Nemours

Superior Court of Delaware, New Castle

June 4, 2014

CHERYL SIMMONS, Claimant-Below, Appellant,
v.
NEMOURS, Employer-Below, Appellee.

Date Submitted: March 3, 2014

On Appeal from the Industrial Accident Board.

Michel L. Sensor, Esq., Perry & Sensor Attorney for Appellant.

Robert W. Ralston, Esq. Attorney for Appellee.

ORDER

Calvin L. Scott Judge.

Introduction

Before the Court is Appellant Cheryl Simmons' ("Appellant") appeal of the decision of the Industrial Accident Board (the "Board"), denying Appellant's Petition to Determine Compensation Due and finding that Appellant failed to show that she suffered an injury was causally related to her employment. The Court has reviewed the parties' submissions and the record below. For following reasons, the Board's decision is AFFIRMED.

Background

On September 22, 2011, Appellant received an influenza vaccination as part of her employment as a registered nurse with Nemours ("Employer") at the A.I. du Pont Hospital for Children. When the flu injection was administered, Appellant felt an intense pain. A few days later, Appellant repacked approximately ten boxes in her garage. The next morning, Appellant experienced "soreness in [her] muscles bilaterally."[1] However, Appellant no longer felt that bilateral soreness after about three days.

On February 15, 2012, Appellant saw her family care doctor, Dr. David Maleh, and complained of a sore left arm. Dr. Maleh noted that Appellant reported a "sore left arm since October." He also noted that there was "[n]o clear injury" and that she "[d]id have a flu shot in that arm."[2] He stated that Appellant had "[p]ain with abduction more than 70 degrees", which was "relieved by rest, " and "[p]ain with rotation."[3] Dr. Maleh initially believed that Appellant had a rotator cuff injury and ultimately ordered an x-ray and prescribed physical therapy. Physical therapy provided some help with Appellant's restricted range of motion. Thereafter, Dr. Maleh ordered an MRI and referred Appellant to Dr. David Sowa, a board-certified orthopedic surgeon who holds a certificate of added qualifications in surgery of the hand.

On April 18, 2013, Appellant filed a Petition to Determine Compensation Due. The Board held a hearing on August 14, 2013. Appellant appeared and presented Dr. Sowa's deposition testimony and the Employer presented the deposition testimony of Dr. Errol Ger, who is also a board-certified orthopedic surgeon with a subspecialty of the hand.

At the hearing, Appellant testified that she worked at the A.I. du Pont Hospital for Children for about four years. She stated that, when she received the September 22, 2011 flu shot, it was unusual to her in that "the pain was intense" and "[i]t seemed to be worse than the flu shots that [she had] received in the past."[4] Appellant "felt that it was given higher than what [she] normally received" and she "didn't feel it going into the muscle area[, ] it just felt different and more painful and the pain continued."[5] Appellant gave testimony explaining the difference between the pain from the September 2011 injection and the pain that she experienced after moving the boxes. She stated:

The pain from the injection was sharp, severe. It felt like something was there. I would say it felt as if it had hit a bone except I didn't feel it hit any bone. But it did not feel like it was in what I would consider my muscle areas; whereas, the soreness was definitely muscle soreness from the boxes.[6]

Appellant also explained that she did not see Dr. Maleh until February 15, 2012 because she "was waiting for [the pain] to go away…[she] just sort of ignored it [and] continued with [] the things that [she] needed to do life… and [she] was distracted by other things…"[7] However, she stated, that the pain "progressed to the point [she] was having trouble sleeping[, ]" and she could manage throughout the day "until it got ...


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