It has long been understood in Delaware that permanency is a battle between two experts, each with their own rating, and supported or supplemented by factual and medical evidence. Under well-settled law, the Board can only fashion its own alternative rating when supported by and based upon the evidentiary record. Turbitt v. Blue Hen Lines, Inc. 711 A.2d 1214 (Del. 1998). Despite this possibility, permanency is overwhelmingly approached and argued as an either/or proposition – a choice between the claimant’s expert rating and the defense expert’s rating.
However, a growing trend has been emerging in this area. Faced with a high rating from claimant’s expert and a 0% rating from the defense expert, the Board is beginning to find claimants failed to meet the burden of proof as to the precise permanency rating. This results in the Board denying the Petition but not affirmatively finding there is no permanent impairment.
Three recent cases are illustrative. In St. James v. State of Delaware, IAB No. 1490378 (May 18, 2021), the Board rejected a 14% right upper extremity impairment rating, noting the claimant’s lack of disclosure of prior injury to the body part raises an issue of possible apportionment, which the claimant’s expert did not address. As such, the Petition for permanent impairment benefits was denied. In DeBenedictis-Bayne v. State of Delaware, IAB No. 1482162 (Apr. 13, 2021), the Board noted concerns with Dr. Rodgers’ rating of 20% cervical spine impairment. Dr. Rodgers’ examination findings did not support the elevated rating, and while the Board declined to find 0% permanency, it denied the Petition, as the claimant failed to meet her burden of proof. In a similar Decision, in Shipmon v. State of Delaware, IAB No. 1461921 (Jan. 6, 2020), the Board found Dr. Rodgers’ 22% cervical spine impairment rating to be “highly inflated.” Again, the Board did not specifically find a 0% impairment rating, but it denied the Petition. Claimant appealed, and the Superior Court recently affirmed the Board’s denial of the Petition (see Shipmon v. State of Delaware, C.A. No. N20A-01-007 DCS, Jul. 30, 2021).
It is possible these claimants will obtain new, reduced permanency ratings and will re-file for permanency. In that instance, it will of course be our position that the prior litigation outcomes would preclude re-filed permanency allegations as a matter of law, but if this argument is rejected by the Board, then the prior hearing record would at a minimum be of assistance in challenging the re-filed claims on their merits. Hopefully, the mere costs of re-filing with a new permanency opinion would dissuade claimants. Going forward, these outcomes should be considered at the time of the 30-Day Rule deadline in similar matters.