The Board grants the motion to dismiss the claimant’s DACD petition seeking compensation for permanency on the basis that a prior Board decision had determined that, while the claimant sustained injuries to those body parts, they had resolved.

This case came before the Board on July 9, 2020, on the claimant’s DACD petition, seeking compensation for alleged permanency of 31% to the cervical spine and 14% from a concussion. The employer filed a motion seeking dismissal of the claimant’s petition based on a prior decision from the Board in the same case.

The previous hearing had taken place before the Board on October 27, 2017, when it was established that the claimant did sustain a compensable work injury, including “a concussion and left shoulder, arm and hand sprain/stain injuries.” In that litigation, the claimant had alleged that she had additional injuries to the head, neck and left leg, as well as a traumatic brain injury. The evidence presented to the Board included two medical experts on behalf of the employer whose testimony indicated that, while the claimant may have sustained a strain and sprain injury to the neck in the work injury, it had since resolved. As far as the head injury and the alleged traumatic brain injury, the employer’s medical evidence showed that the claimant had sustained only a mild concussion and contusion to the back of the head. The claimant had appealed the prior Board decision to the Superior Court, which affirmed, and then to the Supreme Court, which summarily affirmed on the basis of the Superior Court’s decision.

In addressing the employer’s motion to dismiss, the Board stated that certain findings were final based on the prior decision. Specifically, the Board had found as a factual matter that the claimant may have sustained a strain/sprain injury to the neck but that condition had resolved. The Board had further found that the claimant had only sustained a mild concussion in the work injury but that the mild concussion had, in fact, resolved.

The claimant argued that the litigation on the alleged permanencies should be permitted to go forward, relying on the recent decision in Washington v. Delaware Transit Corp., 226 A.3d 202 (Del. 2020). In that case, the Supreme Court reversed the lower court and found that a permanency petition could proceed and was not precluded by a prior Board decision, which had found that the claimant’s injury had resolved and there had been no recurrence of total disability. The reasoning by the court in that case was that work capacity is not the same issue as alleged permanency to a body part.

The Board in this case reasoned that the Washington case was distinguishable in that it would be completely inconsistent and contradictory for the Board to have found in one decision that the claimant had no ongoing compensable injury but then in a later decision to find that the claimant had a permanent impairment due to a no longer-existing injury.

The Board’s well-written decision contained legal reasoning that there would hardly ever be an end to workers’ compensation litigation if a claimant could first file a petition seeking to find a compensable injury and then, having lost that petition, being able to file a second petition alleging total disability and relying on the argument that total disability was not an issue in the prior decision. The Board emphasized a claimant could then file a third petition for permanent impairment and argue that benefit had not been part of the prior two petitions. Therefore, the Board held that the claimant’s petition alleging permanencies to the cervical spine and to the head from a concussion must be dismissed. The Board found that once they make a finding that a compensable injury resulting from a work accident either does not exist or has subsequently resolved, there can simply be no further entitlement to benefits with respect to that injury.

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