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Perdue Farms, Inc. v. Atkinson

Superior Court of Delaware

December 30, 2019

PERDUE FARMS, INC., Appellant,

          Submitted: 11/18/2019

          On 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 for Appellant.

          Andrea G. Green, Esq., 28412 Dupont Boulevard, Suite 104, Millsboro, DE 19966, Attorney for Appellee.


          Richard F. Stokes, Judge.


         This an 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.


         Atkinson 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."[1] Following the incident, Atkinson reported pain and vibration from his right ear to his right shoulder.

         Atkinson 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.[2] 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. Bohman.[3]

         On 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.[4] Both medical experts were unaware of this subsequent injury. Atkinson did not report the subsequent injury, claiming it was a muscle strain.[5]

         Dr. 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.[6] 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.

         Employer 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.[7] 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.

         Considering 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.[8] 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.[9] 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, ...

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