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Well, Halloween is casting a long shadow here in the First State and seeing as it is also Election day....well I thought I would blog about something as quirky (to put it kindly) as the political skirmishes here in DE. So how about a little tale in which defense attorney Dennis Menton of the Tybout Redfearn law firm takes on a lady in a wheelchair?
And yep, another "pee" case in DE in the space of a couple of weeks.
Written by Chief Hearing Officer Chris Baum sitting with the Board, this case presents a claim for disfigurement brought by the ever-genial Don Marston and involving a catastrophic injury. Claimant had been compensated for permanency at 12.5% lumbar, 35% thoracic, 80% right leg, 40% left leg, 24.5% bowel and 100% bladder. These injuries were the result of this 50 year old claimant lifting a trash bag that weighed 60 pounds.
Claimant cannot stand unsupported and does not walk. She testified at the hearing that she had a permanent Foley catheter placement and used a urine bag with a tube attached by a brace to her right leg. She wears dresses as the most physically convenient means of attire with the bag (arguably) concealed by her dress. The disfigurement award was as follows:
• Right foot droop when unsupported.......16 weeks
• Right leg swelling.......8 weeks
• Catheter tube and urine bag..........80 weeks
I really found this case to be a "grabber" because of the reiteration of the existing law-- how a medical assistive device, made a permanent part of the human body (such as a catheter, tracheotomy tube or colostomy bag) can qualify for a disfigurement award. I just love those mini-tutorials, as you have likely figured out by now. I also have to give props to Dennis Menton for the chutzpah to take on a "claimant in a wheelchair" and to advance the creative argument that since claimant testified that she dressed in such a manner to keep the urine bag and tube concealed, no award should follow under that legal prong: "Is it visible when the body is normally clothed?" Mr. Baum's reply to that: "As the Board has observed before, the fact that a claimant is embarrassed by a disfigurement and takes extraordinary steps to hide it is not a valid reason to deny disfigurement." As for the wheelchair, it sounds from the ruling like the claimant was gunning for an award there. Again some creative maneuvering on the part of her attorney, Don Marston. Since the IAB has ruled consistently that a wheelchair is not itself a bodily disfigurement, there was an attempt to collect under the "altered gait" theory....which would allow a recovery. The Board commented that "no gait" is not the same as an "altered gait". But you have got to love those lawyers and their ability to spin...it is how we earn our money and these guys both did it pretty well, I would say.
So in terms of the scoreboard, big disfigurement award for claimant. She did not, however, recover for the embarrassment of being in a wheelchair and thanks to the testimony of Dr. Edelsohn for the employer, benefits for a lace-like reddish discoloration on the right leg diagnosed as "livedo reticularis" were denied based on the doctor's inability to confirm any causal link between the "rash" and the work injury or its residual.
This little gem of a case is Ann Marie Henderson v. State of Delaware, IAB#1239289 (10/21/10).
I think I am done writing about urine for a while. But if anything intriguing about fecal matter or bowel impairment comes your way, send it my way with your comments. And on that note, make sure y'all get out and vote........so many choices, so few options.
Patriotically yours....and very grateful for women's suffrage,Cassandra Roberts
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
Hold the catheter bag upright, look at the urine level, and write down the number closest to the level of the urine in the bag. Alternatively, the urine can be drained from the catheter bag into a measuring cup.