Merged Claim for Taste and Smell Impairment in Delaware Doesn't Pass the Sniff Test!

Merged Claim for Taste and Smell Impairment in Delaware Doesn't Pass the Sniff Test!

You have to hand it to my partner, Natalie Wolf.  She is not timid nor does she hesitate to try to break new ground.  Case in point-- William Meyer v. ITT Flight Operations, IAB # 1297955 ( 9/21/10 ).  On a claim for 100% loss of smell where there is a concomitant loss of taste that is the direct result of the olfactory loss, Natalie was willing to go against the grain of the existing case law and again argue that the inability to enjoy the simple pleasures of, for example, a pumpkin cheesecake or raspberry jalapeno pepper jelly should result in a substantial pecuniary award.  And yours truly, the Queen of Cheesecake...would wholeheartedly agree.  And did I mention that my talents include Starbucks Cheesecake, Eggnog Cheesecake, Banana Cream Pie go without such confections.....can we even put a price on this?

But getting back to Natalie, because this post is meant to be all about her, the Board held fast to the prior case law which stands for the proposition that  if there is no neurologic injury to nerve system affecting taste, or to the taste buds,  then they are not going to show you the money.  Natalie offered the deposition of Richard L. Doty, Ph.D. of the Smell and Taste Center of the University of Pennsylvania School of Medicine; the defense called upon Alan Fink, M.D., a local neurologist.  Dr. Doty testified that claimant sustained a permanent and total loss of smell as a result of striking the back of his head.  Taste was also impaired, as being dependent on the sense of smell.  Dr. Stephen Rodgers also testified for the claimant, and he disagreed with Dr. Fink's rating of 3% whole person for the loss of smell and stepped up for a 100% loss to the olfactory nerve.  He also explained that without the sense of smell, food is tasteless, and that further, there is no treatment for loss of smell.

So how did they rule?

Well no surprises here.  First of all, a 100% total loss of smell deserves to be compensated as such and the Board awarded it based on 100% olfactory loss, which is worth 175 weeks.  The Board did not get bogged down in dr. Fink's 3% "whole body" impairment rating and was pretty dismissive of it.....And by the way, shouldn't someone perhaps enlighten Dr. Fink to the fact that Delaware is a regional impairment rating and not a "whole body" jurisdiction?

On the issue of whether taste should be compensated, however, you can have your cheesecake..... you just can't taste it, too.  Nor will anyone pay you under workers' comp for the sorry fact that you cannot smell the cinnamon, nutmeg or pumpkin in the oven, nor can you enjoy the delightful bounty of Cassandra's Confections, which are at their finest in the harvest season.

But give Natalie a call and invite her to lunch-- she is wonderful company and a better comp lawyer you will not find.  Of course I am a little biased....:>)

The Queen of Cheesecake,
Cassandra Roberts

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