I reported on one of the pre-trial motions in this case in my post of 2/28/12 titled "Body of Evidence". Interesting case about where an autopsy was performed on the down low in a case involving a catastrophic and posthumous claim for permanent impairment. Prior to that, there was a Motion to Dismiss, which I did not report, that dealt with whether there could be a viable Section 2326 claim in a case such as this where death was almost instantaneous. Motion to Dismiss denied with the Board commenting that "some factual dispute existed as to whether or not Claimant's lungs were impaired and would not have functioned normally had Claimant survived the suffocation event."
As stated, the covert autopsy is discussed in my Body of Evidence post. The Board held pursuant to that Motion Day hearing that "an adverse inference would be applied so that all reasonable doubts concerning the autopsy evidence would be resolved in Employer's favor...." The Claimant filed a Motion for Re-Argument on that ruling and the Board decided defer its decision until the merits Hearing, which was convened on March 14, 2012. Props to Hearing Officer Angela Fowler for issuing a 43 page decision in the space of a month. Members John Daniello and Harold Barber sat for the Board.
The Background?On June 4, 2008 the Claimant was crushed to death by soy meal inside a grain silo. At least two co-worker witnesses were on the scene and testified that for a period of a few minutes the Claimant was able to speak. Initially the claimant was discovered buried up to his waist in grain, and reportedly commented that his feet were caught up on some chains, preventing him from any attempt to free himself from the avalanche of soy meal. Within the space of a few minutes the Claimant's head was buried and his airways thus occluded, with death by asphyxiation following shortly thereafter. It took approximately 4 to 5 hours to extricate the body. Death benefits pursuant to 19 Del. Code Section 2330 were paid without issue to the widow and children.
The Claims?Initially this matter was filed as a DACD claim for 100% impairment to each lung. Following the covert autopsy that was the subject of the prior Board Motion day ruling, Dr. Richard Callery, State Medical Examiner, issued a report allowing for 100% impairment to each lung, 100% to the left and right kidney, and 100% each to the brain, heart and digestive system. Both Dr. Callery and Dr. Stephen Rodgers testified as to these impairments. Dr. Judith Tobin, now-retired Assistant State Medical Examiner and the physician who signed off on the Claimant's death certificate, testified with Dr. Michael Walkenstein on behalf of the Employer. Dr. Walkenstein is board certified in internal medicine, pulmonary medicine and critical care medicine.
The Outcome?The Board initially stated that it was in a position to decide the DACD without making a specific ruling on the Motion for Re-Argument. The Board articulated the issue as being whether "Claimant's lungs sustained an anatomical permanent impairment prior to death as opposed to because of it." It determined that the issue presented by the Motion for Re-Argument was rendered moot because "with or without the application of any inference related to autopsy findings, Claimant's Estate has failed to demonstrate that it is more likely than not that Claimant suffered permanent impairment to his lungs or any of the other organs or bodily systems that have since been alleged as part of the Estate's permanent impairment claim." Of note to the outcome:
• The Estate failed to demonstrate that the Claimant's lungs and other organs were permanently injured independently of their failure as a result of death.
• While the opinions of Drs. Rodgers and Callery were deemed "instructive in facilitating the Board's decision", Drs. Tobin and Walkenstein were more persuasive.
• According to Dr. Rodgers, the Guides do not address permanency ratings in the event of immediate death.
• Both Dr. Tobin and Dr. Walkenstein testified that there was no evidence that Claimant's lungs were damaged prior to his death (Claimant could well have survived the engulfment had he not lost access to oxygen").
• "Clearly, Dr. Walkenstein's expertise surpasses that of Dr. Callery in the area of pulmonary care."
This is a complex case on a remarkable issue and it is well worth reading the 43 pages, which is largely medical testimony. The Board expressly declined to craft a rule of law that permanency is foreclosed in all cases that offer a similar scenario. All of the permanency claims at issue here were denied.
Anthony Frabizzio achieved this remarkable result for the Employer and we applaud his victory. Always good to know who to call when an expert is needed in a case of this nature (and this case presented 4 such experts). Sad beyond words that such intriguing and complicated legal issues have to arise out of such unspeakable tragedy.
The case is Estate of Herbert Mitchell v. Allen, IAB# 1322082 (4/12/12).
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