Gurney v. Mercy Hospital and VNA Home Health Hospice

Insurance Company

ESIS and Cross Insurance

Date Decided

March 1, 2019

Panel Members

Glen Goodnough

David Hirtle

Mike Stovall


Gradual Injury


Arm Multiple Injuries Recovery from Injury Back Derrig v. Fels IME§312 Eck v. Verso Paper Second Gradual Injury

File Size

179 KB


Summary from the Troubh Heisler Attorneys

Gurney had a gradual work injury to her arms in 2011 from repeatedly lifting a patient at Mercy. Her condition improved 90% and she returned to regular duty without restrictions, except to be careful. In 2012, she had an acute bilateral arm injury at Mercy lifting a patient but "recovered almost fully" from that injury.

In 2014, while working for VNA, she developed arm pain and upper back pain from using a "draw sheet repeatedly to lift a patient" upright in bed. Gurney filed petitions on all three dates of injury. Dr. Guernelli’s IME found a new, gradual 2014 injury, and Judge Jerome adopted his opinion. VNA appealed, arguing that under the Maine Supreme Court's 1999 decision in Derrig v. Fels, Gurney could have only one gradual arm injury to her arms.

The Appellate Division affirmed the decision, finding that the facts of the case supported Judge Jerome's decision. Citing the Appellate Division’s 2016 decision in Eck v. Verso Paper, the panel held that an employee may prove a second gradual injury where "both the severity and nature of the employee's symptoms changed over time to such an extent as to produce a legitimate second injury." The panel also found the §312 IME opinion to be competent evidence supporting the decision.

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