Up the Appellate Ladder and Still No Section 2326 Permanency For Estate Of Injured Worker In DE Who Was Smothered In Grain

Up the Appellate Ladder and Still No Section 2326 Permanency For Estate Of Injured Worker In DE Who Was Smothered In Grain

You first read about this case in regard to my post of 2/28/12 (Body of Evidence) and also 4/17/12 (The Ultimate Soy Allergy).  This unfortunate claimant was crushed to death in a grain elevator.  The first post had to do with the claimant's counsel conducting an exhumation and autopsy on the down low  (shame, shame, shame on him).  The second post related to the merits hearing and the Board's decision denying a number of permanencies claimed in a circumstance where death was almost, but not quite, instantaneous.

So today we have John Ellis offering us copies of this case on appeal.  The Estate of Herbert Mitchell v. Allen,  CA #S12A-05-001RFS (Del. Super.) (11/29/12) and The Estate of Herbert Mitchell v. Allen, No. 634, 2012 (Del. Supr.)(March 20, 2013).   At the IAB Hearing, Dr. Stephen Rodgers testified that there was a 100% permanency to each lung.  Dr. Richard Callery testified that the failure of lung function would have then impacted the heart, kidneys, brain and digestive system to a degree of 100% permanent impairment.  Dr. Judith Tobin opined on behalf of the employer that the claimant died within several minutes of being submerged in grain and that the cause of death was asphyxiation due to an occlusion of the nose and mouth.  Dr. Michael Walkenstein agreed with Dr. Tobin as to cause of death and offered that there was no evidence of a physical injury to the lungs.  Suffocation causes all other bodily organs to fail.  Thus the IAB declined to award any permanency.

John Ellis had the following to say about his case:

"Speaking of Gary [Nitsche] and the Supreme Court, we received the Supreme Court Opinion in Estate of Mitchell v. Allen Family Foods. That was the case where the worker died and the Estate filed a petition for permanency to various body parts, seeking to expand the logic from the 2006 case of Estate of Watts. It was affirmed without additional comment. But bottom line, when a claimant dies at work, an estate is not automatically entitled to permanency benefits for every body part that ceased to function due to death."

In addition to this proposition offered by John, there is some interesting commentary in the Superior Court decision with regard to not assigning preferential credibility to live witnesses over testimony brought in by deposition.

I feel just a tad heavy-hearted blogging this one....... Nothing in this situation to tickle my usual sense of wit and whimsy.    That and I get just a little freaked out every time I read that crushed soy meal was present in the Decedent's mouth, throat, trachea and bronchi.  Makes me kind of hope that this one has no precedential value..... ever.

Cassandra Roberts

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