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Workers' Compensation

Chicken Impossible: Second Time’s a Charm for Avian Flu Case in Delaware

Marshmallow Peeps Candy

While it is not yet Easter, tis the season where my thoughts turn to the Easter Basket-and ever since I was a toddler, my favorite has always been the marshmallow peeps.  I love peeps and could easily eat a box of 12 in one sitting.   The Queen Mother's favorite baby picture of me is one in which a peep has been shoved into my mouth.  Even now the thought of it is simply delicious...... Which brings me to today's post.

You may recall my post of 3/4/11-Pride & Prejudice? Delaware Supreme Court rules that Hearing Officer recusal is necessary where Hearing Officer has an interview pending with defense law firm.  The substantive work comp case involved an occupational disease claim with a diagnosis of mycobacterium avium intracellulare ("MAI") or avian flu.  Surely you must recall-Dr. Bandera, that ever-popular go-to guy for all things related to total disability, making a cameo appearance as a pulmonologist.  Right-that's the one......

Per my prior post the Delaware Supreme Court reversed and remanded due to perceived potential bias on the part of the Hearing Officer (now an associate at the defense's law firm).  The case was adjudicated once more on January 26, 2012 and a decision issued February 7, 2012.  David Ebersole v. Evan's Builders, IAB#1322310 (2/7/12).  So this time claimant's counsel Brian Lutness had the intuitive genius to actually call a pulmonologist to testify...a real one, that is.  Dr. Bandera (apparently now the go-to guy for all things relating to lung function) testified once more, but in tandem with Dr. John Penek, an internist and pulmonologist form Pompton Lakes, NJ.  Dr. Albert Rizzo testified for the employer, apparently not persuasively.

This time a much different outcome, although I would alert you that this case is on appeal to the Superior Court.  Where the last Hearing resulted in a decision for the employer, this time the Board awarded benefits (and a lung removal was part of the medical exposure).  They found the claimant credible as to the extent of his job duties that would bring him into contact with chickens, and they rejected the opinion of Dr. Rizzo in favor of Dr. Penek. They also applied a "but for" standard of causation under Reese v. Home Budget, noting that there was an extensive pre-existing history of lung ailment.

I deemed this case blog-worthy in that we do not see all that many occupational disease cases and this is perhaps the only avian flu case I have ever stumbled across.  It has Dr. Penek, and that is perhaps another first.  I trust defense counsel Joe Klusman will keep us posted as to the outcome of the appeal.  You will recall Joe from my post of 10/14/09 which is where the first trial of this case is discussed (Just Say No!)  He is part of the "Tybout Dream Team" of occupational disease defense.

So what do you hope to see in your Easter basket?

Irreverently yours,
Cassandra Roberts

Delaware Detour & Frolic   Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts

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