Workers' Compensation

The Whitman Sampler—a Little Permanency Ruling Round-Up in Delaware

Thank God it's Friday.  I have read a wealth of case law this week and for once the theme was not Utilization Review appeals and how many ways can the Board tell UR it got it wrong.  This week is a salute to permanent impairment.  And the cases are all over the place, which makes life in The First State so very interesting.  Just when you think you should settle that DACD petition because you know what the Board is likely to do, they throw you a few curve balls.  Or in this case a few slightly melted chocolates, in keeping with my theme.


So here is my "sampler"......enjoy!  Preferably with a cup of Starbucks.

David Smith v. Peninsula Oil and Propane, IAB# 1236322 (9/13/11)  On a DACD seeking an award of 30% impairment to the lumbar spine based on the opinion of Dr/ Rodgers, the Board awards 16% based on the opinion of defense medical expert Dr. Mattern.  Both docs employed the AMA Guides, Fifth Edition.  Claimant ahad been released to medium duty work and the Board felt that the 16% rating was more in keeping with his demonstrated level of function.  Props to attorney John Morgan of Heckler & Frabizzio for showing us that Dr. Rodgers doesn't always carry the day.

Elmer Godwin v. MCI Services, IAB#1143655 (9/26/11)   Permanency denied for claims to the urethra, penis (sex function) and ano rectal impairment where the impairment issues arise out of a leg injury for which the claimant was already compensated.  Of note, these various body parts and bodily systems were not themselves injured in the work accident.  They were indeed functional.  The claim involved pain that accompanied the use of these members specific to the leg and not the members themselves.  Dr. Meyers testified for the claimant and Dr. John Townsend testified for the employer.  Natalie Palladino of Tybout, Redfearn and Pell enjoys the spoils of victory in this decision.

Jennifer Sellers v. St. George Academy, IAB#1321766 (9/28/11) Claimant was seeking an award of 36% to the brain as the result of a concussion.  The medical experts in this matter were not on the same page, or even in the same book, as it happened.  Dr. Sommers for the employer testified that there was no impairment in contrast to the 36% rating of Dr. Fink.  There was a memorandum of law submitted by the parties post-hearing that was inapplicable to the issue.  The defense apparently struggles with the difference between a recovery for a post-concussive cognitive dysfunction and an award (not allowed in this jurisdiction) for diagnoses relating to psychosis, depression, personality disorder or other neuroses.  Bill Peltz of Kimmel, Carter, Roman & Peltz did a masterful job for the claimant.

Sara England v. Wal-Mart, IAB#1325736 (8/29/11)  This ruling is a little bit of a hybrid.  Claimant was advancing a 35% impairment to the low back based on the irrepressible Dr. Rodgers, with a nod to the Fifth Edition of the AMA Guides.  Dr. Piccioni weighed in as the defense medical expert with a rating of 9% in reliance on the AMA Sixth Edition.  Read the decision and find out how the Board came up with a rating of 28%-- but be aware that it was the Fifth Edition of the Guides that reigned supreme.  Jeanie Boyle and Natalie Palladino may not agree on who was the victor in this case.

Fawn Mirabella v. Christiana Care, IAB#1336744 (8/26/11)   Dr. Ger was found the more credible as the Board rejected Dr. Rodgers rating of 75% for the upper extremity for a diagnosis of complex regional pain syndrome.  Dr. Ger utilized the Fifth Edition of the Guide and the Board acknowledged his "vast clinical experience with RSD/CRPS patients" based on which he placed claimant in the moderate range of impairment.  Be aware that in this case an FCE played a role in the Board's deliberations.  We bow to you, Maria Newill, in smacking down that 75% rating to a 42% award.

Teri Overstreet v. State of DE, IAB#1336135 (8/31/11)  In this case Dr. Swaminathan makes a cameo appearance as a physician trying to be conversant with the AMA Guides.  He rated impairments to the cervical spine, thoracic spine and lumbar spine, based on the Fifth Edition of the Guides.  He has never offered a permanency rating under the Sixth Edition and was of the impression that "delaware law requires him to sue the Fifth Edition of the Guides."  Oh snap! Has he never read the Narbor Santos v. Citisteel case and its progeny?  Does he not read my blog?  Shame, shame, shame on you Dr. Swami! Dr. Stephens and the Sixth Edition of the Guide wins this battle, along with Anthony Frabizzio, noting that not only didn't Dr. Swaminathan know how the IAB feels about a rule of preference for the Fifth Edition (notwithstanding the fact that they bow to it every chance they get), but he also used the wrong conversion factors.....  Don't you just hate it when that happens?

Cameron Dorsey v. City of Wilmington, IAB#1335530 (3/23/11)  This case is a lovely little tutorial on burn injuries and involved claims of both permanency and disfigurement.  The Board embraced Dr. Bandera and his testimony regarding a 10% impairment to the skin of the left lower extremity based on skin graft donor sites.  Another 10% was awarded to the skin of the left ear.  Dr. Senu-Oke was employed as the defense medical expert....and that's about all I have to say about that.  Gary Nitsche reprsented the claimant and Bill Rimmer deserves some props here as defense counsel-- simply for trying to row a boat without any oars....He gets the chutzpah award in my book.

There you have it.  Permanency on parade.   For those of you who don't embrace the concept that "splitting the difference is always the answer...."

Irreverently yours,
Cassandra Roberts

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

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