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Workers' Compensation

Where Do Broken Hearts Go? Not to the Delaware IAB, That’s for Sure!

The title of this post is a salute to the late great Whitney Houston. This week we have a guest blogger, Wil Davis, of the New Castle County Law Department.  Wil is one of two guest bloggers who will be featured on The Detour & Frolic this week.  I am grateful to Wil for highlighting a recent IAB decision on one of my favorite topics, the heart.......

Here is what young Wil had to say:


It was suggested that I forward you a decision I just received from the IAB, where a claimant tried to connect an open heart surgery and a long period of disability to a work incident that occurred while he was employed with New Castle County.

Claimant was a New Castle County police officer. While investigating a burglary he had a stressful and physically taxing event, and he experienced left sided chest discomfort, excessive sweating, and lightheadedness. He went home and rested for a few days and the symptoms subsided, but then he experienced the same symptoms while at home when he lifted a laundry basket. He went to his PCP, who sent him to a cardiologist. The cardiologist performed a diagnostic catheterization which demonstrated severe coronary artery disease, and Claimant immediately underwent multi-vessel bypass surgery.

Claimant argued a "but for" causation standard under Reese, while Employer argued "substantial factor" under Steen. The Board found that Claimant had not met his burden of proof under either standard, and ultimately determined that Claimant had not suffered a work injury. The Board's decision focused primarily on the fact that Claimant's symptoms had subsided with rest, and that they had recurred while he was at home. It was only after the incident at home that he contacted his PCP. The Board found that this belied Claimant's expert's opinion that but for the work incident Claimant would not have had the symptoms that had resulted in the need for heart surgery, since Claimant had not established a connection to the work incident and the flare up at home. The Board agreed with Employer's expert that Claimant's preexisting coronary artery disease "was the key factor in determining whether Claimant needed the surgery, not the work incident."


The case under review is Edward Sommers v. New Castle County, IAB# 1369952 (3/12/12). Of note, Dr. Alan Micklin testified for the claimant and Dr. Joseph Pennington III served as the defense medical expert.  Mike Freebery represented the claimant and following the last post, he has assured me that his robe is not purple and did not come from Wal-Mart-it is reportedly blue cashmere, to match his eyes.  Excellent commentary offered by the Board in this decision about the how and why of the selected standard of causation.

Having had a wonderful weekend, with the opportunity to see the "Cake Boss" Buddy Valastro live at the DuPont Theatre, I am approaching my week much inspired.  The problem is I am much more motivated to pick up my pastry bag than my dictaphone.....thankfully we will have another guest blogger, James Donovan, later this week.


Post Script: No sooner had I sent this one off, I heard from claimant's counsel Mike Freebery:

"If your heart attack case is Ed Sommers v NCC, please note it is now on appeal to the Superior Court. This one will most likely be reversed. I'll bet my purple robe on it. "


Irreverently yours,
Cassandra Roberts

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

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