A New Trend in Delaware? Tybout "Dream Team" Overcome DCD Petitions on Causation

A New Trend in Delaware? Tybout "Dream Team" Overcome DCD Petitions on Causation

It is a rare minority of Delaware IAB cases that yield a ruling in favor of the employer, especially on an original petition for benefits, in this jurisdiction called a Petition to Determine Compensation Due.  This week I am profiling two successful outcomes for the State of Delaware.  Both attorneys are with the law firm of Tybout, Redfearn & Pell.

Enter Stage One, Lauren McConnell with Nancy Baxter v. State of DE, IAB #1359222 (3/21/11), authored by Hearing Officer Julie Pezzner who sat as the adjudicator.  Claimant was seeking benefits under the theory of "cumulative detrimental effect" [CDE] for neck and right shoulder symptoms which her treating doctor, Dr. Arnold Glassman, diagnosed as cervicothoracic and myofascial pain syndrome. Dr. Glassman's specialty is physical medicine and rehabilitation.  The mechanism of injury was alleged to be repetitive use, although the doctor "acknowledged that other than typing and answering telephones, he could not specifically identify the clerical or other duties Claimant performed at work", taking the position that the claimant's physical demands must be viewed "globally" and on the basis of the "culmination of all activities" rather than any specific job description.

The State called Dr. Alan Fink (neurologist) as its expert.  Dr. Fink diagnosed the Claimant differently than Dr. Glassman, observing that the majority of the Claimant's pain was between the right occipital area and the upper part of the neck – he would endorse a diagnosis of right occipital neuralgia and right shoulder bursitis causally unrelated to work activity.  His understanding of the Claimant's job duties were that they involved typing, data entry, telephone use, and four hours of sitting; Dr. Fink reviewed a specific job description for the Claimant's job title of Judicial Case Processor II, provided by the State Human Resources Department.  In his opinion, the diagnoses of right occipital neuralgia and shoulder bursitis would not be negatively impacted by typing or the Claimant's other clerical activity.  Of note, he rejected the validity of a Functional Capacity Evaluation performed by a chiropractor within the same practice as Dr. Glassman.

In a tightly written decision, Hearing Officer Pezzner concluded that the Claimant had not met her burden of proof on a CDE claim.  Although it is implicit that the opinion of Dr. Fink was deemed more credible, her ruling focuses on the inadequacies of the Dr. Glassman's testimony.  There is a comment that he had failed to perform a complete review of the available medical records and that he was not "credible or convincing..."

An exceedingly rare outcome for the employer.  This case is worth reading for examples of the best and worst of evaluation on both the part of the treating doctor and the defense medical expert.  If I had to go out on a limb based on my review of the IAB decisions (over the last 15 years) on a CDE claim involving allegations of repetitive use, especially with an individual admittedly employed in a clerical capacity, I would venture that this sort of employer-favorable result occurs less than 5% of the time.  Awesome job, Lauren!

Lauren's colleague at Tybout Redfearn and Pell has the next employer winner under consideration, that case being Steven Long v. State of DE, IAB# 1353182 (3/24/11), with (former Hearing Officer) Natalie Palladino representing the State.  A ruling written by Hearing Officer Kimberly Wilson for Board Members John Daniello and Terrence Shannon denies benefits on another original DCD Petition, this one seeking benefits for a right thumb injury diagnosed by Dr. Douglas Palma as a dislocation.  This Hearing did not involve any defense medical evaluation and offered solely the testimony of fact witnesses from the State to impugn Claimant's credibility.  How did he injury his thumb?  Who knows for sure, but the Board reasoned that it did not occur at work.  Without a doubt, this Claimant was bitter in the hours prior to the alleged work event about being asked to cover the "on-call" the upcoming Memorial Day weekend, given his plans to host a graduation party for his son, a high school senior.  He was very vocal to a number of co-workers and supervisors about his dissatisfaction with this weekend assignment and that represented the demise of his credibility when he then reported a work injury.

What is instructive about this case, from the defense perspective, is that it reminds all of us how the burden of proof can be the crux of the case and that, lest we ever forget, the employer does not have to offer up an alternate theory of causation in the face of an admitted injury.  "To defend against a petition for benefits, it is sufficient for the employer merely to present evidence rebutting the claim that an injury was work-related." See Strawbridge & Clothier v. Campbell, 492 A.2d 853, 854 (Del. 1985); Alfree v. Johnson Controls, Inc., Del. Super., CA # 97A-04-005, Goldstein, J., 1997 WL 718669 (9/12/87)."

Well, I would say this rare and hard-fought employer success does not rise to the level of a "trend", notwithstanding my title.  These cases offer a tutorial in: how to render a credible expert, make the most of your medical record entries, and remind the Board who carries the burden of proof.  That is my two cents for what little it is worth-- but the juxtaposition of these two DCD combatants and the rare and enviable outcome if you represent employers and carriers is noteworthy.  Lauren and Natalie, you have my respect and to those in the claimant's bar – it is still your game to lose.

And speaking of games, we are winding down senior year with "Sweet Caroline" and the Ursuline Women's lacrosse team still has an enviable record (just like Lauren and Natalie).  Two losses and the rest victories.  Right now they have a lot in common with the claimant's bar.  And here below is a picture of my Caroline, poised in mid-check, in a rare loss to the unstoppable Cape Henlopen team.


One final comment with Memorial Day weekend and graduation for Carrie rapidly approaching-- I will not be working graduation weekend.  I will also exercise my best efforts not to be injured at work....:>)

Irreverently yours,
Cassandra Roberts

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Henry C. Davis
  • 04-20-2011

You do understand that Dr. Fink describes an injury that came from holding the phone to her ear with her shoulder while using a mouse and keyboard with her hands and trying to look at the screen, right? Maybe if the treating doctor had expressed a better understanding of what her daily work activities were at least that one would be different. BTW, a friend of mine makes elephant guns for amusement. (he does not shoot elephants with them) I can teach you how to shoot his elephant gun without causing you even a purple spot on the shoulder or cheek, let alone an injury like this. Talk about dragging in irrelevancies. ----Henry,