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State v. Reid

Superior Court of Delaware

January 9, 2019

STATE OF DELAWARE/DART, Employer-Appellant,
v.
LYNETTE REID, Claimant-Appellee.

          Submitted: October 30, 2018

         On Appeal from the Industrial Accident Board AFFIRMED

          ORDER

          THE HONORABLE ANDREA L. ROCANELLI JUDGE.

         This is an appeal from the Industrial Accident Board ("IAB"). Upon consideration of the facts, arguments, and legal authorities set forth by the parties; statutory and decisional law; and the entire record in this case, the Court hereby finds as follows:

         1. Claimant-Appellee, Lynette Reid ("Claimant") sustained an injury to her right shoulder on August 10, 2017, while working as a bus cleaner for Appellant-Employer, the State of Delaware/DART ("Employer"). Claimant sustained the injury when she lifted a trash bag out of a garbage bin.

         2. Following the incident, Claimant was taken to Wilmington Hospital for tests and X-rays. Claimant was instructed to follow up with an orthopedist.

         3. On August 11, 2017, Claimant sought treatment with Michael Pushkarewicz, M.D. ("Dr. Pushkarewicz"), an orthopedic surgeon. Dr. Pushkarewicz placed Claimant on total disability pending a diagnosis for Claimant's injury. An MRI on August 24, 2017 revealed tearing in the labrum and tendon of Claimant's right shoulder. The treatment recommended by Dr. Pushkarewicz was cortisone injections and physical therapy.

         4. Claimant received an injection in her right shoulder on September 7, 2017. Dr. Pushkarewicz released Claimant to light duty work that same day.

         5. After leaving from her appointment with Dr. Pushkarewicz on September 7, 2017, Claimant was involved in a motor vehicle accident. As a result of the accident, Claimant experienced body aches, back aches, and an aggravation of her right shoulder injury. Dr. Pushkarewicz's treatment recommendations for Claimant's work-related injury did not change after the accident. Due to the motor vehicle accident, Claimant did not return to work until November 25, 2017.

         6. Claimant received a second cortisone injection on January 8, 2018.

         7. On September 28, 2017, Claimant filed a Petition to Determine Compensation Due ("Petition") with the IAB, seeking acknowledgement of the accident and injury, medical expenses, and a closed period oftotal disability benefits from August 11, 2017 through September 7, 2017.

         8. Employer disputes that an accident or injury occurred at the workplace on August 10, 2017.

         9. A hearing was held on Claimant's Petition on February 1, 2018 ("Hearing"). During the Hearing, the IAB considered the testimony of(1) Claimant; (2) Claimant's expert, Dr. Pushkarewicz; and (3) Employer's expert, Gregory Tadduni, M.D. ("Dr. Tadduni"), an orthopedic surgeon who evaluated Claimant on December 7, 2017 at Employer's request. The IAB also considered video surveillance footage from Employer's facility taken on August 10, 2017.

         10. Claimant's expert, Dr. Pushkarewicz, opined that Claimant sustained an injury as a result of the August 10, 2017 work incident. Claimant reported to Dr. Pushkarewicz that she was in immediate pain and Dr. Pushkarewicz considers this to be strong evidence of an injury. Dr. Pushkarewicz testified that the tears shown on Claimant's August 24, 2017 MRI are normally degenerative, caused by "falling on your outstretched arm," or by "trying to lift something which is too heavy." Although Claimant's prior medical records revealed a history of neck pain across Claimant's shoulder blades, in Dr. Pushkarewicz's opinion, these references are symptoms emanating from a cervical spine condition. Claimant had never been diagnosed with a shoulder joint condition before August 10, 2017. Dr. Pushkarewicz opined ...


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