DE Supreme Court affirms Board’s decision that the claimant failed to meet his burden to prove he sustained a permanent impairment to the cervical spine that was causally related to an accepted work accident.

On August 3, 2017, Mr. Shipmon sustained compensable injuries when he fell off a stool while employed as a constable at Delaware Technical Community College. He later filed a DACD petition that alleged that he sustained a 22% permanent impairment to the cervical spine as a result of the work accident, based on the opinions of Dr. Stephen Rodgers. In defense, the employer relied on the opinions of Dr. Stephen Fedder, who testified that Mr. Shipmon did not sustain any permanent impairment as a result of the work accident.

Following a hearing, the Industrial Accident Board issued a decision that concluded the claimant failed to meet his burden to prove that he sustained a permanent impairment of his neck. The Board reasoned that Dr. Rodgers’ opinion was not credible or consistent with the claimant’s actual level of function for several reasons, including that Dr. Rodgers did not review the only post-accident MRI study; the doctor refused to consider any apportionment of permanency to acknowledged preexisting issues without a legitimate rationale; Mr. Shipmon’s own testimony regarding his function was inconsistent with such a high rating; and Dr. Rodgers testified he would not provide a lower permanency rating even if he learned that the claimant was doing “cartwheels and handstands.”

Importantly, the Board suggested that, although it did not believe the claimant qualified for a zero percent rating (consistent with the opinion of the employer’s expert, Dr. Fedder), it would not award permanency benefits because Dr. Rodgers’ testimony failed to carry the burden to prove his 22% rating. The Superior Court affirmed the Board’s decision, and that judgment was appealed again to the Delaware Supreme Court.

On appeal, the claimant’s primary contention was that the Board erred as a matter of law when it declined to award him permanent impairment benefits while simultaneously finding that he “suffered permanent limited function.” The Supreme Court rejected the claimant’s argument that the Board is permitted to unilaterally assign a specific degree of permanent partial impairment in the absence of any supporting evidence. The court explained that the Board “should not . . . make a determination that a permanent partial impairment is of a certain degree when there is no evidence in the record to support that finding.” The court further determined that there was substantial evidence in the record to support the Board’s decision. The judgment of the Superior Court was affirmed.
 

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