Appeal from a Decision of the Industrial Accident Board.
Kristen S. Swift, Esq. and Francis X. Nardo, Esq., 750
Shipyard Drive, Suite 400, Wilmington, DE 19801, Attorneys
G. Green, Esq., 28412 Dupont Boulevard, Suite 104, Millsboro,
DE 19966, Attorney for Appellee.
Richard F. Stokes, Judge.
appeal from the Industrial Accident Board
("Board"). Appellant Perdue Farms, Inc.
("Employer") appeals from the June 26, 2019 Board
decision, awarding John Atkinson ("Atkinson") total
disability benefits. For the reasons stated herein, the
Board's decision is AFFIRMED.
FACTUAL AND PROCEDURAL HISTORY
alleged that he suffered an injury while working for Employer
on September 10, 2018. Atkinson had worked for Employer for
approximately one year at the time of the alleged work
accident. He had worked as a jack driver for two to three
weeks when the accident occurred. Atkinson's job duties
included moving tanks filled with poultry wings. On September
10, 2018, while moving tanks, Atkinson struck his head on a
piece of pipe. He was wearing his hard hat when he struck the
bar. The strike caused his head to "jolt
back." Following the incident, Atkinson reported
pain and vibration from his right ear to his right shoulder.
reported the incident to his supervisor and continued
working. On September 11, 2018, upon completing his shift,
Atkinson sought treatment at Beebe Medical Center. Atkinson
also completed a report of the incident at Employer's
Wellness Center which is required for all accidents that
occur on Employer's premises. He saw a doctor at the
Wellness Center on September 24, 2018 and reported pain in
his ear and shoulder and tingling in his fingers. Atkinson
was referred to a neurologist. Treatment records indicated
that, in October, 2018, Claimant treated with a neurologist
and was found to have abnormal skin sensation, night pain,
pins and needles, and tingling sensation on the right neck,
shoulder and right arm. In December, 2018, Atkinson had a neck
MRI and, based on those results, Atkinson's primary care
provider took him out of work and referred him to Dr.
cross-examination, Atkinson further provided that he went to
the hospital in December after another neck injury sustained
while working at home. Atkinson testified that he experienced
muscle pain to his neck when he was looking up while painting
his wall. Both medical experts were unaware of this
subsequent injury. Atkinson did not report the subsequent
injury, claiming it was a muscle strain.
Bohman, testifying on behalf of Atkinson, concluded that
Atkinson's work restrictions were reasonable and
necessary and related to the work injury that occurred in
September, 2018. Dr. Bohman testified that he was unaware
of any prior or subsequent neck injury. Both Atkinson and Dr.
Bohman testified that Atkinson's symptoms began following
the work accident and progressively worsened until Atkinson
had surgery in January, 2019. Dr. Bohman placed Atkinson on a
no work restriction on January 10, 2019.
also provided medical expert testimony at the Board hearing.
Dr. Rushton, testifying on behalf of Employer, determined
that Atkinson had sustained a cervical spine sprain or strain
as a result of the work injury. Both Dr. Rushton and Dr.
Bohman agreed that Atkinson's treatment records did not
indicate cervical spine complaints prior to the work
accident. However, Dr. Rushton claimed that the neck symptoms
were outside of the expected time frame
post-injury. Dr. Rushton further claimed that
Atkinson's progressively worsening symptoms are
inconsistent with a conclusion of a cervical spine strain or
sprain as a result of the work injury.
the testimony of both medical experts and the testimony of
Atkinson, the Board determined that Atkinson was entitled to
compensation for the work injury. The Board concluded that
Atkinson's treatment history, since the work accident,
indicated continued and progressively worsening cervical
spine symptoms. The Board found Dr. Bohman's testimony
persuasive and concluded that Atkinson had proven that his
alleged work injuries were causally related to his work
activities, therefore, he was entitled to total disability
benefits. The Board explained:
Claimant's treating surgeon, Dr. Bohman, is in a better
position to evaluate Claimant's symptoms and assess his
need for treatment and the Board finds his testimony
persuasive. Furthermore, as detailed above, Claimant's
treatment history since the work accident indicates continued
and progressively worsening cervical spine symptoms, ...