A Capehart Scatchard Blog

MRSA Claim Found Compensable Based on Timeline of Work Injury

By on August 13, 2014 in Compensability with 1 Comment

Kenneth Nichols worked for Midstates Packaging, Inc. as a mechanic. He was injured on April 7, 2008, while trying to take the transmission out of a Hyster forklift. While underneath the forklift, Nichols heard a pop in his shoulder when the forklift rolled off the blocks and over his left shoulder. He did not notice that his skin was broken by the fork lift; however, he reported the injury to his supervisor immediately and a co-worker drove him to Somerset Medical Center. An x-ray was taken but was negative for fracture, and petitioner was told he pulled a muscle.

Nichols returned to work but continued to feel pain, which he reported to his supervisor. Two weeks later he saw his family doctor, Dr. Berdini, who prescribed antibiotics and pain medication. One week later he saw an orthopedic surgeon, who said that if the pain did not get better, he might need surgery because he had an infection. Nichols developed a sore red lump on his collar bone. In May 2008, his doctor told him he would need to have an abscess drained but Nichols declined because he lacked insurance.

In June 2008, Nichols drove to Virginia for a family funeral, collapsing upon arrival. He was diagnosed in the hospital with liver failure, MRSA, a broken collar bone, some broken ribs and a herniated disc, spending 11 days in the hospital. He needed a PICC line to deliver antibiotics. On returning to New Jersey, he was advised that his job had been terminated.

Nichols denied any prior injuries to his lower back, ribs, clavicle or shoulder, and he denied any prior MRSA condition. He continued to see Dr. Berdini and also continued to develop new health issues, such as infections under his arms and on his scrotum, as well as numbness in his left toes. He had an MRI done at St. Luke’s Hospital which revealed a swollen spine. He was referred to a pain specialist, who noted that his right pinkie finger became completely rigid. He began taking OxyContin and Percocet three to four times a day as well as antibiotics and sleeping pills.

Respondent denied causation between petitioner’s injury and his MRSA condition. When petitioner went to Somerset Medical Center, the history said “pain, pop after lifting heavy object this am.” His Regional Manager testified that Nichols told him he was injured pushing a tow motor. The records from the hospital in Virginia said he had fallen from a forklift about two months ago, injuring his left shoulder.

The diagnosis differed among the experts in the case. Petitioner’s expert, Dr. Theodora Maio, diagnosed a fractured clavicle and fractured rib, although the x-rays of the left shoulder showed no fracture. She thought that the x-rays may not have included the clavicle portion.

Dr. Leonard Joachim, an internist for the petitioner, found that the blunt injury made the skin more vulnerable to MRSA, which he felt was probably contracted at Somerset Hospital Emergency Room.

Respondent produced Dr. Kenneth Peacock, an orthopedic surgeon, who did not believe that the injuries were consistent with the various descriptions of the accident. He noted that the x-rays showed no fracture while acknowledging that the x-rays did not show the medial clavicle. Dr. Peacock felt that it would have been very difficult for petitioner to have carried out daily activities with these fractures had they happened in early April.

Respondent’s internist, Dr. Monroe Karetzky, felt petitioner had MSSA (methicillin-susceptible staphylococcus aureus), not MRSA. He said that the scrotal testicular fistula could not be related to an incident that happened a year before the fistula manifested.

The Judge of Compensation found for petitioner. She said as follows:

Granted, petitioner’s history of the accident varies a little each time he relates it, but the general idea is constant. He hurt his shoulder at work and went to the hospital for treatment immediately. The MRSA infection correlates with the accident in time and area of the body affected as well as treatment in the hospital, a risk factor for MRSA. Unfortunately, petitioner is not the most articulate communicator, nor is he sophisticated as to medical causation. He described the accident as a shoulder injury. The hospital interpreted this to mean the shoulder joint and consequently x-rayed the joint.

The Appellate Division affirmed the ruling for petitioner, stating that the findings of the Judge were supported by credible evidence in the record. It noted that the standard is one of reasonable probability. While there were discrepancies in the petitioner’s history of the accident, the Appellate Division agreed that these were well evaluated by the Judge of Compensation and were found to be of little weight. The Court also noted that the petitioner was under the influence of morphine when he described the accident to the hospital staff in Virginia. The case can be found at Nichols v. Midstates Packaging, Inc., A-2445-12T2 (App. Div. August 1, 2014). It shows how complex MRSA claims can be in workers’ compensation and how important the timeline is in deciding compensability.

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John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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There is 1 Brilliant Comment

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  1. Avatar Kathern says:

    Is this truly a Real Story?? I know the amount can not be disclosed, but is Mr. Nichols really receiving some type of Compensation??

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