Less is More—A Study in Comparative Permanency Ratings in Delaware

Less is More—A Study in Comparative Permanency Ratings in Delaware

Young Conaway Stargatt & Taylor, LLP

First and foremost, please enjoy (above) the view of our new offices.  A whole lotta white marble going on, and it's a look I can get used to.  In fact, I am kind of coveting the white marble conference room tables as something that would really have eye appeal in my dining room.

Today's post is a short and sweet Motion Day ruling.  Brief in words and powerful in impact.  And it answers a conundrum that was discussed among a few of us lawyers before it was put to the Board.

Here is the issue:
Claimant is rated by (none other than) Dr. Bandera at a 17% lower extremity permanency in 2009 and prior to surgery.  The case was litigated (because no one puts anything over on Joe Klusman) and the Board awarded 7%, rejecting Dr. Bandera (another "way to go, Joe" case).  In any event, claimant has a surgery in early 2011 and Dr. Bandera now rates the permanency at 10%.  So what do we do with this?

Employer's argument:
Dr. Bandera's prior rating of 17% was rejected by the Board and now his opinion is 10%, so that "as a matter of law" claimant cannot pursue an increase in permanency.  Because per Dr. Bandera, the permanency actually decreased (or maybe he just forgot about his prior rating).

The resolution:
So says the Board: "The Board cannot use this prior finding [that Bandera's rating was "inaccurate"] as a basis to conclude as a matter of law that Dr. Bandera's current or future ratings are inaccurate.  If as a factual matter his current rating should turn out to be accurate, then it would constitute an increase over the previously found impairment."  The Board further commented that the claimant's intervening surgery at least presented an indicia of an increase.  And the Board relied on the age-old standard from the Delaware Supreme Court, Poor Richard Inn v. Lister.

The case?  Kim Williams v. United Distributors, IAB # 1320716 (5/29/12)(ORDER).

Just in case this issue was keeping you up at night....LOL!!

Irreverently yours,
Sassy Cassy

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

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