I Believe I Can Fly: A Song or a Theory of Compensability in Delaware?

I Believe I Can Fly: A Song or a Theory of Compensability in Delaware?

"I believe I can fly, I believe I can touch the sky......" R. Kelly

Talk about flying-- well today's post is about a lady who tripped and fell and "went flying" and to hear her tell it, I think she did indeed touch the sky.  And if she didn't touch the sky, her attorney Tim Lengkeek reached for the stars in this case and is now happily swinging from one of them. Lest you think I jest, take a look at the recent IAB ruling Barbara Shockley v. State of Delaware, IAB # 1351414 (9/7/11) where Tim took a claim that was compensable for the left shoulder and managed to successfully add on the right shoulder, the neck,  left knee and bilateral carpal tunnel syndrome ("CTS").  This case is a claimant lawyer's dream and frankly, now this lady can just sit back and retire on her permanency money.  Only in the First State.......

I am going to forever think of this case as "the Ezekiel Tutorial".  As in the song "Dem Dry Bones....", a little salute to Ezekiel 37:1-14.  Notwithstanding my sarcasm, this is a scholarly and well- written decision that reflects the ever-generous (and unabashedly claimant-oriented) state of Delaware work comp law as it relates to causation.

A few facts are in order:

The claimant, employed by Red Clay School District on January 29, 2010, caught her foot and tripped.  She reportedly "went flying".  At the time of this accident claimant was already scheduled to be evaluated by Dr. Sowa for bilateral CTS; she also had a prior work injury to her right shoulder, prior neck and shoulder complaints, a 2005 EMG and a 2006 EMG positive for bilateral CTS and a prior motor vehicle accident.  She treated in 2008 for the low back, knee and bilateral hips.  Following the January 2010 work accident, Dr. Sowa performed a left rotator cuff repair and the causality of that procedure to the work event was not disputed.

Why is this compensable as to all the additional body parts?  I will allow you to scrutinize this opinion for yourself.....but I have, in a nutshell, two words: Reese and Blake.  Meaning of course, Reese v. Home Budget Center, 619 A.2d 907 (Del. 1992) and Blake v. State, Del. Supr., No. 477 (2001) (March 12, 2001).

My thoughts?

*       That must have been a dilly of a trip and fall

*       I admire Tim's well-placed bravado

*       If you are a defense lawyer, and to borrow from my teenage daughter, "it sucks for you"......

*       Reese and Blake are the super- glue holds it all together-- and to borrow from Luke 1:37, like God, "with [them] nothing is impossible".......

Now I think Tim ought to go back and file for the low back and head....... :>)

Irreverently yours,
Cassandra Roberts, a/k/a Sassy Cassy

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

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