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Workers' Compensation

Rating the Gait: A New Take on Permanency in Delaware?

Today’s selection is from Don Marston of Doroshow Pasquale et al.  Here is what Don has to say:

Here is what I believe to be the latest entry in the battle of low back perm vs. lower extremity perm.

There are a couple of interesting aspects to this case.

There was no offer because the carrier relied upon Dr. Gelman's opinion that a separate rating for the lower extremity is not allowed when there has been a rating for the low back which took into account the radiculopathy in the lower extremity. The Board rejected this position.

The lower extremity perm (37%) was far greater than the low back perm (13.5%).

There was significant objective evidence of impairment to the lower extremity in addition to the typical symptoms of radiculopathy.

This case is to be cherished by those representing injured workers.  Given the fairly benign level of permanency paid for a low back injury that was post op times one (single level decompression at L4-5 with neurologic residuals), the award to the leg is magnanimous, to say the least……actually almost 3 times the rating for the lumbar.  And pretty much the equivalent of what a total knee replacement would command.

Of note, the injured worker was able to perform maintenance work that included roofing and climbing ladders.  That fact alone might have accounted for the lack of an offer from the defense.  The rating, per Dr. Rodgers, was driven in very large part by the fact that claimant required a molded ankle and foot orthotic to be able to do his work duties.  And there is much discussion of gait derangement.

And that’s the other quirky part of this case.  Claimant was also seeking an award of disfigurement for altered gait.  And his disfigurement included left calf atrophy and a sideways outward posture to the left foot plus what the Board called a “mild” limp.  So after all that ballyhoo on the permanency award, the Board comes in on the cheap for the disfigurement—10 weeks.

Go figure………the case is Daniel Goffredo v. The Galman Group, IAB#1382302 (9/22/15).

Irreverently yours,



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


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