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Gutierrez v. Jamestown Painting

Superior Court of Delaware

February 26, 2019

EZEQUIEL GUTIERREZ, Employee/Appellant,
JAMESTOWN PAINTING, Employer/Appellee.

          Submitted: January 24, 2019

         On Appeal from the Industrial Accident Board. AFFIRMED.

          Heather A. Long, Esquire, Kimmel, Carter, Roman, Peltz & O'Neill P.A., Newark, Delaware, Attorney for Appellant Ezequiel Gutierrez.

          Nathan V. Gin, Esquire, Esquire, Elzufon Austin & Mondell, P.A., Wilmington, Delaware, Attorney for Appellee Jamestown Painting.


          RICHARD R. COOCH, R.J.


         This is Ezequiel Gutierrez' ("Employee" or "Appellant") appeal from an October 3, 2018, decision of the Industrial Accident Board ("Board") denying Employee's Petition to Determine Additional Compensation Due. Employee had sought additional compensation for a right shoulder injury and a cervical spine injury allegedly related to a work accident in which Employee's right hand was crushed by a large steel elevator door. Employee argues that the Board's decision to deny his Petition is not supported by substantial evidence, and could not have been fairly and reasonably reached in light of the evidence Employee presented. Further, Employee contends that the Board abused its discretion because the Board did not accord Employee's treating physicians substantial weight.

         Jamestown Painting ("Employer" or "Appellee")[1] argues that the Board's decision is supported by substantial evidence, that the Board did not abuse its discretion when it found Employer's expert more persuasive than Employee's experts, and that the Board did not otherwise err as a matter of law.

         After review of the parties' contentions and the record, the Court concludes that the Board's decision was supported by substantial evidence and that the Board otherwise committed no error of law. Accordingly, the decision of the Board is affirmed.


         On December 2, 2016, Employee was working for Employer when Employee suffered a crush injury to his right hand and wrist.[2] Employee was standing in an elevator door frame helping a coworker install a large, oversized steel elevator control door, when the coworker dropped the steel door. The door fell towards Employee. In quick succession, Employee flung his arms out to avoid being completely crushed and caught the steel door falling towards him, but the steel door forced his right arm in between the door and the doorframe, crushing his wrist and hand. After Employee was dislodged from the doorframe, Employee's supervisor advised Employee to apply ice to the injury. Experiencing continued pain, Employee requested medical attention. On December 30, 2016, Employee presented to Work Pro for medical treatment.

         At his initial Work Pro appointments, Employee complained of pain in his right hand and wrist, and indicated upper extremity numbness. At a subsequent visit, Employee reasserted his previous complaints, and added a complaint of weakness in his right upper extremity. On February 4, 2017, Work Pro transferred Employee to the care of Dr. Peter Townsend. An injection into Employee's right wrist failed to alleviate the pain. Dr. Townsend then performed a wrist fusion surgery on May 4, 2017, "wherein Dr. Townsend removed a bone from the wrist and fused it. Dr. Townsend also moved one of [Employee's] thumb tendons and performed a cleanup around one of the nerves in the wrist."[3]

         In the days following the wrist surgery, Employee was rushed to the emergency room twice because of "uncontrollable... 10 out of 10" pain.[4] At this time, six months post-accident, Employee complained of a sharp, burning, electrical shoulder pain that extended to his fingers; of a separate shoulder pain with spasms in his right bicep; and of neck pain that radiated down into the shoulder. Over the next few days Employee received treatment at Christiana Care where he eventually underwent a right axillary nerve block to stymie the neck and shoulder pain. After discharge from Christiana Hospital, Employee continued treatment with Dr. Townsend from May 26, 2017 until August 8, 2017. Employee continued to complain of pain and stiffness in his neck and right shoulder. At some point thereafter, [5] Employee formally indicated to Employer that he would seek additional compensation for the cervical spine and right shoulder pain, alleging that the pain was related to the work accident.

         On December 28, 2017, Employer filed a Petition to Terminate Benefits, alleging Employee was no longer totally disabled from the work accident. In connection with this petition, Employer tasked Dr. Eric Schwartz, an orthopedic surgeon, to examine Employee and to review Employee's prior medical records. Dr. Schwartz' review of Employee's prior medical records revealed that Employee has been treated "for approximately 15 years for pain management of the neck and back."[6] However, when Employee spoke with Dr. Schwartz, Employee denied prior treatment to his neck or right shoulder, contrary to his medical records.[7] From his evaluation Dr. Schwartz opined that the specific mechanism of the injury, a crush injury to the right wrist, could not cause the pain in Employee's right shoulder and cervical spine. According to Dr. Schwartz, there was no evidence of a fall or twist, no complaints of neck or shoulder pain at the initial medical examinations after the injury, and the initial medical examinations noted "normal sensation to light touch and normal" reflexes of the upper extremities.[8]

         In January 2018, Employee began treatment with Dr. Joseph Mesa, an orthopedic surgeon, and Dr. Mark Eskander, an orthopedic surgeon. Employee underwent an MRI of his right shoulder for further diagnosis. According to Dr. Mesa, the MRI showed a superior labral tear in the right shoulder with a small cyst. Dr. Mesa opined that the tear was related to the work injury. Dr. Eskander's separate examination and treatment of Employee led Dr. Eskander to opine that Employee suffered from cervical disc herniation with spinal cord compression and nerve root compression, caused by the work accident. Dr. Eskander was of the opinion that the wrist injury was severe enough to be a "distracting injury" from the shoulder and cervical spine injuries. Dr. Schwartz disagreed with Drs. Mesa and Eskander that the wrist injury would be a distracting injury, and opined that if the work accident caused a neck or shoulder injury Employee would have indicated pain immediately. Therefore, Dr. Schwartz opined, it was not possible to relate Employee's neck and shoulder pain to the work accident.

         By March 15, 2018, Drs. Mesa and Eskander released Employee to work full-time in a sedentary capacity. On July 9, 2018, the Board heard testimony from Employee, Dr. Mesa, Dr. Eskander, Dr. Schwartz, and various witnesses regarding Employee's skills and future employability. The Board ultimately found Employee lacked credibility, especially in regards to his prior pain medication use. The Board further found Dr. Schwartz more persuasive than Employee's treating physicians, primarily because the Board found that Dr. Schwartz reviewed Employee's prior medical records in a more comprehensive manner than had the other doctors.

         The Board by decision dated October 4, 2018 denied Employee's Petition for Additional Compensation and granted Employer's Petition for Termination of Benefits. Based on the persuasiveness of the experts' opinions and the extent of medical records reviewed, the Board found that Employee failed to establish that his neck and shoulder injuries were related to the work accident. Further, the Board found that Employee's wrist injury no longer warranted total disability benefits of "$689.45 per week."[9] The Board terminated Employee's total disability status.[10] The Board placed Employee on partial disability status, based on the then existing disabling effect of Employee's wrist injury, with compensation at the rate of "$466.55 per week."[11] Employee was also awarded payment of his medical witness fees in accordance with 19 Del. C 2322(e).[12] This appeal followed.


         A. Employee's Contentions

         First, [13] Employee contends that the Board abused its discretion by concluding that Employee's right shoulder and cervical spine injuries were unrelated to the work injury. Employee argues that the Board improperly ignored the testimony of Dr. Eskander and Dr. Mesa, and relied exclusively on Dr. Schwartz' opinions. Employee argues that the Board "exceeded the bounds of reason"[14] and acted contrary to Delaware law because it did not accord Employee's treating physicians with "substantial weight."[15]

         Second, Employee argues that the Board's decision finding his cervical spine and right shoulder injuries were unrelated to the work accident is not supported by substantial evidence. Employee contends that the Board "relied exclusively on the testimony of Dr. Schwartz" while essentially ignoring the testimony of Dr. Eskander and Dr. Mesa.[16] Employee argues that there is an "exceeding amount of evidence" to support a finding that the neck and shoulder injuries were related to the work accident.[17] Essentially, Employee contends that the total weight of all the evidence presented to the Board weighed in favor of his petition, and thus the Board's contrary decision cannot be supported by substantial evidence.

         B. Employer's Contentions

         Employer argues that the Board was permitted to reject the testimony of Employee, Dr. Mesa, and Dr. Eskander on the basis of credibility. Employer contends that the Board, in its discretion as trier of fact, gave more weight to certain evidence presented by Employer than the Board gave to evidence presented by Employee. As such, the issue is wholly factual in nature. Employer argues that Dr. Schwartz' credible testimony is substantial evidence which supports the Board's conclusions.

         IV. ...

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