Lemuel Shipmon v. State of Delaware, (C.A. No. N20A-01-007 DCS - Decided July 30, 2021)

Superior Court affirms Board’s denial of permanency petition where the Board finds the claimant credible as having some level of permanency, but not the amount alleged in the petition.

The claimant was employed as a constable, and his job duties included serving as a liaison for staff and students to ensure safety. On August 3, 2017, the claimant was attempting to sit on an adjustable height stool and fell, sustaining injuries to his cervical spine. The evidence showed a prior motor vehicle accident resulting in a pinched nerve in his neck. Surgery was discussed with the claimant, although he received conservative treatment that consisted of physical therapy, medications and pain management. The claimant returned to his regular duty job with the employer on January 30, 2018, with physical capacities that were now more limited, along with pain and weakness.

The claimant filed a DACD petition, alleging he had sustained a 22% permanency to the cervical spine. Dr. Rodgers, a well-known permanency expert, testified on behalf of the claimant that he placed the claimant in DRE Category III due to bilateral radicular complaints and cervical radiculopathy confirmed by diagnostic studies. He opined the claimant had a 22% permanency to the cervical spine resulting from the work injury. Dr. Rodgers was aware of the claimant’s prior treatment to the cervical spine, but indicated it did not rise to the level of reaching a permanent impairment rating. The doctor conceded that he was not aware of the claimant’s specific job duties and if he had any restrictions after his return to work.

Dr. Fedder testified as the employer’s expert, and in his opinion, the claimant’s work-related neck injury had resolved by the time of his evaluation, and he did not believe the claimant had sustained any permanent impairment to the cervical spine. Dr. Fedder also indicated that the claimant’s ability to perform his job and exercise regimen, which included walking two hours daily and being actively engaged in physical conditioning of his upper extremities, was not consistent with a 22% permanency. 

The Board denied the claimant’s petition despite finding the claimant to be highly credible with some permanent limited function. The Board found that Dr. Rodgers was not credible and rejected his permanency rating.

On appeal, the claimant argued that the Board erred in finding he had permanent but limited function and a 0% permanent impairment. The court rejected the claimant’s argument and commented that the Board had not, in fact, found that the claimant had a 0% permanency. Instead, the Board had correctly ruled that the claimant had the burden of proving he had a permanent impairment of 22% as alleged in the petition and had failed to prove this element. The court reasoned that the Board was entitled to reject the testimony of Dr. Rodgers as not credible. On this point, the Board articulated that it rejected Dr. Rodgers’ testimony, since he relied on a diagnostic study done before the work injury but ignored such a study after the injury and testified he was unwilling to place the claimant in a less severe permanency category, even if the evidence were to establish that the claimant could function at a higher level than was represented. Therefore, the court concluded that the Board committed no error in denying the petition since they had sufficient evidence to find that the claimant failed to meet his burden of proving the degree of permanency as alleged in the petition.

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