Submitted: December 31, 2018
Consideration of Appellant's Appeal from the Industrial
Dale Bowers, Esquire, Law Office of A. Dale Bowers, P.A.,
Attorney for Appellant.
J. Klusman, Esquire, Tybout Redfearn & Pell, Attorney for
January 2, 2017, Reginald Murphy sustained an injury to his
cervical spine and right shoulder due to a work accident. For
this injury, Murphy received total disability benefits based
on his average weekly wage at the time of the work accident.
On September 5, 2017, Murphy filed a petition with the
Industrial Accident Board for additional compensation due
alleging he sustained a brachial plexus injury at the time of
the accident. Murphy's employer, Delaware Transit Corp.,
disputes the compensability of this injury and related
medical expenses as to causation. On May 14, 2018, The Board
denied Murphy's petition. Before the Court is
Murphy's appeal from that decision.
Board's Finding of Fact
Board determined that Murphy failed to meet his burden of
proof to support the finding for any compensable brachial
plexus injury related to Murphy's January 2017 accident.
Board found the opinion of Dr. Tadduni, the Defense medical
expert, to be more convincing than that of Murphy's
treating chiropractor. The Board agreed with the Defense
medical expert that Murphy's subjective complaints did
not comport with the objective findings of two clinical
examinations. Dr. Tadduni performed two defense medical
examinations of Murphy in May and November 2017. Dr. Tadduni
found that Murphy's subjective complaints did not comport
with the objective findings of the examination. Dr. Tadduni
believed that Murphy's injury caused a strain of his
bicep at or near the elbow.
his second examination of Murphy, and upon review of an EMG
study performed by another doctor, Dr. Tadduni's opinion
remained that objective examination results did not support
the diagnosis of a brachial plexus injury. Dr. Tadduni opined
that EMG studies have a subjective aspect as to how the test
is performed, and that standing alone, the results will not
be diagnostic of the injury complained.
Board determined that the video showing the incident causing
injury did not show the type of traumatic, abnormal movement
which would typically cause a brachial plexus
injury. The Board noted that typical brachial
plexus injuries are caused when the head or shoulder go in
one direction and the arm in the other direction. The Board
noted that the video evidence showed Murphy using his arm
after the incident, taking notes, fastening his seatbelt, and
dislodging something from the side of the bus.
Board did not find the causation opinion of Dr. DiCola to be
convincing as to any brachial plexus injury related to the
January 2017 accident. The Board also determined Dr.
DiCola's testimony to be inconsistent. Dr. DiCola treated
Murphy from January 2017 to September 2017 for his work
injury. This treatment included 75 visits, treating a
cervical disk problem and glenohumeral shoulder compromise.
Only after an EMG study several months after treatment began
did Dr. DiCola diagnose the brachial plexus injury, opining
such an injury could result from any trauma or injury to the
lower cervical spine roots. This opinion was inconsistent
with the Defense medical expert. The Board noted that Dr.
DiCola did not change Murphy's chiropractic treatment
after the EMG study, eventually discharging Murphy from his
care "for the work injury."
the Board did not find Murphy's own testimony to be
wholly reliable to support his claimed brachial plexus injury
related to the January 2017 injury. The Board noted
Murphy's complaints of worsening pain were based on
diffuse and multiple subjective complaints. The Board relied
on Murphy's lack of credibility in discounting the
testimony of Dr. ...