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The summer release of IAB decisions includes two recent rulings that deal with closed head injury and claims for permanent impairment pursuant to 19 Del. Code Section 2326. Both are claimant-friendly rulings worth sharing.
Case #1:Charles Buckman v. Matrix Services, IAB#1342204 (6/13/12). Claimant, relying upon the testimony of Dr. Jeffrey Meyers, sought the following: 32% to the brain, 47% for hearing loss, 100% loss of smell, 13% for vertigo based on injury to Cranial Nerve VIII (the vestibulocochlear nerve) and 5% for migraine headache. Other impairments were claimed but the aforementioned ratings were specifically the result of the closed head injury. These ratings were challenged by Dr. Marc Scharfman, a Florida neurologist and Dr. Chowallur Chacko, a Florida psychiatrist.
The Board awarded 32% to the brain and commented that "while Delaware case law does not permit a separate permanency rating for psychological injury, the Board is not aware of case law prohibiting the consideration of psychological conditions or symptoms as part of the brain impairment rating for an identified traumatic brain injury." Thus the Board rejected the 50/50% allocation of Drs. Scharfman and Chacko distinguishing between cognitive and psychogenic sources of the impairment.
Also awarded were 47% hearing loss (based on 75 weeks), 100% olfactory impairment (based on 175 weeks), 13% for Cranial Nerve VIII (based on 300 weeks), and 5% for migraine (based on 300 weeks).
This is a great case to review in reply to that age-old question-"How many different impairments can be awarded out of a single head trauma?" Props to attorney Matt Bartkowski and his experts for making the most of it.
Case #2:James Ryan v. Verizon Delaware, IAB#1330123 (7/10/12). In this one, another closed head injury victim sought permanency benefits, supported by the expert opinion of Dr. John Townsend making a cameo appearance on behalf of the claimant. Seems folks always sit up and take notice when a doctor who has distinguished himself as a defense expert comes in and testifies for the injured worker. Of note, Dr. Meyers, the claimant expert in case #1, testified for the defense along with Dr. Andrew Gelman.
As in Case #1, this decision refers to the proposition that permanency is not available for strict psychogenic overlay. The ratings of Dr. Townsend took into consideration an impairment based on chronic headache as well as an impairment based on the organic part of the brain, injury to which had produced memory loss and seizures. The claimant was awarded a 10% impairment to the head, and a 50% impairment to the olfactory nerve, both in reliance upon Dr. Townsend. Steve Morrow successfully represented the claimant.
Parting thoughts:These two cases read together provide a mini-treatise on closed head injury claims under Section 2326, what to look for, and how to maximize the recovery. You have defense docs acting on behalf of the claimant, one doc switching sides, and a whole lotta claimant-love going on in terms of the outcome. That and the real tickle-Doc Rodgers was nowhere to be found in either case....now what's with that?
Irreverently yours,Cassandra Roberts
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
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