The Freibott Law Firm was recently successful in prosecuting a claim on behalf of one of our clients. Our client is a 53 year old RN who worked in the emergency room at Bayhealth Medical Center. On October 9, 2016, she was a healthy nurse and while attempting to treat a combative patient, the patient pulled our client across a stretcher injuring her neck; shoulder; and back. Our client immediately reported the injury to the charge nurse and our client went to the emergency room.
Our client did not follow up for any formal treatment until January of 2017 because she was told by the emergency room personnel that she should self-treat and take over-the-counter medication. Our client’s injuries became progressively worse necessitating the formal treatment in January.
At the Industrial Accident Board hearing, we secured testimony from the charge nurse and a physician’s assistant who knew our client very well in the past and who were present at the scene the day of the injury. Our client’s husband also testified on her behalf. All witnesses on behalf of our client testified that prior to the assault in the emergency room on October 9, 2016, our client was healthy and was not treating for any type of problems associated with her neck or back, despite the defense claim that our client had “ongoing” neck and back problems; this bore out to be untrue. Our client was pain free, symptom free, and treatment free as of October 9, 2016 and had not sought any treatment for any problems with her neck for approximately four years. All witnesses, similarly, testified that after the assault, that our client began to deteriorate in terms of pain in her neck and radicular pain down her arm. An MRI finding showed that our client had sustained a herniated disc in her neck.
Our witnesses further testified that between the October 9, 2016 assault at work and her formalized treatment in January of 2017, our client was in pain despite her attempts to self-treat. The Industrial Accident Board found that all of our client’s witnesses, including our client herself, were credible in their explanation of our client’s health before and after the assault at work. The Industrial Accident Board also found that our client’s treating medical expert, Dr. Mavrakakis, was more credible in her testimony than that of Dr. Gelman, the employer’s medical expert. Our client alleged that Dr. Gelman, at her Defense Medical Exam, actually injured her when he performed his physical examination. Dr. Gelman’s explanation for his treatment of our client, and her reaction to same, was that she was not being honest about her preexisting health and that she became anxious when questioned about her preexisting health which made her cry. The Industrial Accident Board did not find that testimony at all credible.
The Industrial Accident Board found that our client did, in fact, injure herself at work on October 9, 2016. The Industrial Accident Board held that our client’s treatment to date, and her future treatment plan, was reasonable, necessary, and related to the original work accident. The Industrial Accident Board ordered the employer, and its insurance company, to reimburse our firm for the medical expert fee of Dr. Mavrakakis and further ordered the employer to pay an attorney’s fee. (Cessna v. Bayhealth Medical Center,Hearing No.: 1448611Date of Decision: August 22, 2017)