Quaile v. TBC Corporation

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
RICHARD QUAILE, )
Claimant-Below/Appellant,
V. C.A. No. N20A-05-003 JRJ
TBC CORPORATION,
Employee-Below/Appellee. ,
)
MEMORANDUM OPINION
Submitted: October 7, 2020
Decided: November 10, 2020
Upon Richard Quaile’s Appeal from Decision and Order of the Industrial Accident
Board: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
IN PART.
Adam F. Wasserman, Esquire, Ciconte Scerba, LLC, 1300 North King Street,
Wilmington, Delaware 19801, Attorney for Claimant-Below/Appellant.
Paul V. Tatlow, Esquire, Marshall Dennehey Warner Coleman & Goggin, P.C., 1007
North Orange Street, Suite 600, P.O. Box 8888, Wilmington, Delaware 19801,
Attorney for Employer-Below/Appellee.
Jurden, P.J.
I. INTRODUCTION
Richard Quaile (“Claimant”) was injured while working for his employer,
TBC Corporation a/k/a National Tire and Battery (“Employer”).! Seeking
acknowledgment of his injuries, Claimant filed a Petition to Determine Additional
Compensation Due with the Industrial Accident Board (the “Board”).”_ The Board
granted Claimant’s petition in full.? Subsequent medical issues prompted Claimant
to file a Petition for Disfigurement and another Petition to Determine Additional
Compensation Due on February 7, 2020.4 The Board granted Claimant’s petitions
in large part.° But the Board (1) refused to award permanent impairment benefits
for Claimant’s rectal issues and (2) ordered Employer to compensate Claimant for
his medical expenses according to the fee schedule outlined in 19 Del. C. § 2322B
(the “fee schedule”).© Seeking to challenge these two aspects of the Board’s
decision, Claimant filed a Motion for Reargument with the Board.’ The Board
denied the motion in an order issued on April 29, 2020.8 Claimant now appeals.’
' Decision on Petition to Determine Compensation Due, at 2 (A2) (Trans. 65927833). Citations
to pages Al through A134 refer to the pages of the Appendix to Claimant-Below Appellant’s
Opening Brief (Trans. 65927833).
? Decision on Petition to Determine Compensation Due, at 2 (A2).
3 Decision on Petition to Determine Compensation Due, at 32 (A32).
* See Decision on Petition for Determination of Additional Compensation Due (“Decision on
DACD Petition”), at 2 (A87).
> See generally DACD Petition (A86—A118).
6 Id. at 27 & n.13 (A112).
7 See generally Claimant’s Motion for Reargument of Board Decision (A119-A125).
8 See generally Order on Claimant’s Motion for Reargument (A126—A134).
° See generally Notice of Appeal (Trans. ID. 65617166). On September 15, 2020, Claimant filed
his Opening Brief. Claimant-Below Appellant’s Opening Brief on Appeal (‘Opening Brief”)
2
As explained below, the Board’s decision and order are AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED IN PART.
Ii. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Although Claimant’s appeal is limited to two aspects of the Board’s February
7, 2020 decision (which the Board affirmed in its April 29, 2020 order), the events
leading up to the February 7, 2020 decision serve as important context. The Court
will briefly discuss those events before moving onto the issues in this appeal.
A. The February 7, 2020 Decision
1. Background to the February 7, 2020 Decision
On August 31, 2015, Claimant was working for Employer when he fell from
a ladder and suffered injuries.'!° On October 20, 2015, Claimant filed a Petition to
Determine Compensation Due with the Board, seeking acknowledgement of injuries
to his right foot, right leg, and low back.!! On January 29, 2016, Claimant and
Employer entered into an agreement for temporary total disability.'* In the
agreement, Employer recognized injuries only to Claimant’s right foot and right
(Trans. ID. 65927833). On October 5, 2020, Employer filed is Answering Brief. Answering Brief
of Employer-Below/Appellee on Appeal (“Answering Brief”) (Trans. ID. 65990099). And on
October 7, 2020, Claimant filed his Reply Brief. Claimant-Below Appellant’s Rely Brief on
Appeal (“Reply Brief”) (Trans. ID. 65999362).
10 Decision on Petition to Determine Compensation Due, at 2, 6 (A2, A6). “At the time of the
work accident, Claimant’s average weekly wage was $2,073.14, yielding a weekly compensation
rate of $679.63.” Id. at 2 (A2).
'! Decision on Petition to Determine Compensation Due, at 2 (A2).
12 Id.
3
ankle.'? After the parties entered into the agreement, Claimant withdrew his
petition.'*
On July 20, 2016, Employer filed a Petition for Review, seeking to end
Claimant’s total disability benefits.'° On August 9, 2016, Claimant filed a Petition
to Determine Additional Compensation Due, seeking acknowledgement of injuries
to his right knee and lumbar spine—injuries that Employer did not deem
compensable in the parties’ agreement.’® The parties later resolved Employer’s
petition, so the Board considered only Claimant’s petition at the March 23, 2017
hearing.!”
On August 15, 2017, the Board issued its post-hearing decision.'® It found
that the work accident had caused Claimant’s right knee and lumbar spine injuries.!9
One of the Board’s findings was that Claimant’s work accident had, among other
things, “aggravated Claimant’s preexisting lumbar spine condition to include the L3-
4 herniated disk and the extruded fragment.””° The Board concluded that Claimant
was entitled to compensation for medical expenses.7!
13 Id.
14 Td
15 Id.
16 Id.
17 Td.
18 Td at 32 (A32).
19 Id.
20 Td.
21 Id.
Before the Board issued its August 15, 2017 decision, Claimant had lumbar
fusion surgery (which turned out to be compensable).” After that surgery, new
medical issues arose. These developments prompted Claimant to file two more
petitions, which he did on April 4, 2019.
2. Claimant’s April 4, 2019 Petitions
The petitions in question were a Petition for Disfigurement and another
Petition for Determination of Additional Compensation Due.” In his petitions,
Claimant sought, among other things, “an acknowledgement of the compensability
of injuries/ongoing conditions involving the rectum” and “permanent impairment
benefits regarding the .. . rectum.”** On September 27, 2019, the Board held a
hearing on Claimant’s petitions.”°
With respect to Claimant’s rectal and bowel issues, the Board relied on
testimony from the following sources: (1) Dr. Peter Bandera, a physician board
certified in physical medicine and rehabilitation, who testified by deposition on
Claimant’s behalf; (2) Dr. Michael Sugarman, a neurosurgeon who testified by
deposition on Claimant’s behalf; (3) Claimant, who testified on his own behalf; and
22 Decision on Petition for DACD, at 4 (A89).
23 Id at 2 (A87).
24 Td. (footnote omitted).
25 Td.
(4) Dr. Jeffrey Meyers, a physician board certified in physical medicine and
rehabilitation who testified by deposition on Employer’s behalf.”
In the instant appeal, only certain portions of Dr. Bandera’s and Dr. Meyers’s
27 Consequently, the Court will not discuss portions of Dr.
testimony are at issue.
Bandera’s and Dr. Meyers’s testimony that the parties do not reference in their
briefing, and the Court will not discuss any of Dr. Sugarman’s or Claimant’s
testimony.”®
3. Dr. Bandera’s Testimony
The Board summarized Dr. Bandera’s testimony about Claimant’s rectal
issues as follows. On June 20, 2016, Claimant had lumbar fusion surgery at Riddle
Memorial Hospital.” He remained at the hospital until June 23, 2016, when he was
discharged.*? On June 24, 2016, Claimant returned to the hospital, and a report taken
that day stated that Claimant had made two bowel movements before arriving at the
hospital.2!_ While at the hospital, Claimant received a rectal exam, which turned up
positive for external hemorrhoids.*”
26 Td. at 3, 9, 15 (A88, A94, A100).
27 See generally Opening Brief (Trans. ID. 65927833); Answering Brief (Trans. ID. 65990099);
Reply Brief (Trans. ID. 65999362).
28 Indeed, the Court has not been provided with Dr. Sugarman’s or Claimant’s testimony.
29 Decision on Petition for DACD, at 4 (A89); Dr. Bandera Dep., at 28:15—22 (A40).
3° Decision on Petition for DACD, at 4 (A89); Dr. Bandera Dep., at 28:22—34 (A40).
31 Decision on Petition for DACD, at 4 (A89); Dr. Bandera Dep., at 34:10—-14, 35:9-13 (A42).
32 Decision on Petition for DACD, at 5 (A90); Dr. Bandera Dep., at 35:23-36:2 (A42).
6
On June 25, 2016, Claimant again returned to the Riddle Memorial Hospital.
A record dated that day noted that Claimant was experiencing rectal bleeding and
pain, constipation, nausea and cramping, and abdominal pain—symptoms that
Claimant had never experienced.** Later in the record, there is an entry stating that
Claimant had visited the emergency room the previous night (i.e., June 24, 2016)
and was told that he had a prolapsed rectum, which would require follow-up
surgery.*° A surgical note from Claimant’s June 25, 2016 hospital visit stated that
Claimant was referred because of a rectal prolapse.*° The subjective section of that
note stated that Claimant had experienced two days of rectal pain and blood spotting
from the rectum.*” Claimant experienced pain because he was straining to have
33 Decision on Petition for DACD, at 5 (A90); Dr. Bandera Dep., at 38:16-19 (A43).
34 Decision on Petition for DACD, at 5 (A90); Dr. Bandera Dep., at 38:19-39:6 (A43).
35 Decision on Petition for DACD, at 5 (A90); Dr. Bandera Dep., at 39:14-21 (A43).
3° The Board discusses this note in connection with Claimant’s June 26, 2016 visit to Jefferson
University Hospital. See Decision on Petition for DACD, at 5 (emphasis added) (“Claimant had
surgery on June 26, 2016. Under ‘reason for referral,’ the surgical note indicates ‘rectal
prolapse.’””) (A90). But according to Dr. Bandera’s deposition, the note appears to have been made
at Riddle Memorial Hospital on June 25, 2016. See Dr. Bandera Dep., at 38:16-18 (emphasis
added) (“Q. I would next like to turn to a record from . . . June 25, 2016, Riddle Memorial
Hospital.”) (A43); id. at 40:5-10 (emphasis added) (“Q. And I think I’ve tabbed off the next page
I want you to turn to from the same record. . . . Will you read what’s written under reason for
referral? A. Rectal prolapse.”) (A43). The June 26, 2016 surgery at Jefferson University Hospital
is not referenced until page 41 of the deposition. Dr. Bandera Dep., at 41:23-42:9 (emphasis
added) (“Q. The next record | want to turn to is from Jefferson Hospital. . . . [I]t shows an admission
date of June 26, 2016 and a discharge date of June 28, 2016. . .. And the discharge papers list the
problem as rectal prolapse and procedure as hemorrhoidectomy. Is that correct? A. Yes.”) (A44).
37 Decision on Petition for DACD, at 5 (A90); Dr. Bandera Dep., at 40:11-15 (A43).
7
bowel movements, and Preparation H did not help.** The surgical note reported that
Claimant had never had hemorrhoids or bowel movement issues prior to June 2016.°?
On June 26, 2016, Claimant had surgery at Jefferson University Hospital.”
The discharge paperwork identified Claimant’s problem as a rectal prolapse and the
procedure as a hemorrhoidectomy.*’ A month after the surgery, Claimant visited
Dr. Murphy, who prescribed Claimant a stool softener.”
During his testimony, Dr. Bandera discussed the causes of a rectal prolapse.
He stated that narcotic medications, anesthesia, and dehydration accompanying
surgery can slow down the intestine’s motility.** This slowing down may cause a
person to have to bear down harder during constipation.’ Relatedly, a person may
have to bear down harder when struggling to pass urine, as Claimant was.”
According to Dr. Bandera, all of this bearing down can cause a rectal prolapse.*© Dr.
Bandera opined that Claimant had to bear down very hard to produce 800 cubic
centimeters of urine upon request at his June 24, 2016 hospital visit.*”
38 Decision on Petition for DACD, at 5 (A90); Dr. Bandera Dep., at 40:15—20 (A43).
39 Decision on Petition for DACD, at 5 (A90); Dr. Bandera Dep., at 40:22-41:1 (A43—44).
40 Decision on Petition for DACD, at 5—6 (A90—A91); Dr. Bandera Dep., at 41:23—-42:9 (A44).
4! Decision on Petition for DACD, at 5—6 (A90—A91); Dr. Bandera Dep., at 42:5—9 (A44).
“2 Decision on Petition for DACD, at 6 (A91); Dr. Bandera Dep., at 43:22-44:1, 44:6-16 (A44).
43 Decision on Petition for DACD, at 6 (A91); Dr. Bandera Dep., at 46:21-47:10 (A45).
4 Decision on Petition for DACD, at 6 (A91); Dr. Bandera Dep., at 47:1—22 (A45).
45 Decision on Petition for DACD, at 5-6 (A90-A91); Dr. Bandera Dep., at 34:24-35:6, 48:24—
49:11 (A42, A45—A46).
46 Decision on Petition for DACD, at 6 (A91); Dr. Bandera Dep., at 47:20-23 (A45).
47 Decision on Petition for DACD, at 4-6 (A89-A91); Dr. Bandera Dep., at 34:10—-12, 35:16-18,
49:13—-16 (A42, A46).
8
On the issue of causation, Dr. Bandera concluded that Claimant’s work injury
caused the rectal issues.*® He based that conclusion partly on that fact that the rectal
issues developed close in time to the work injury. He also cited the known and
accepted reasons for rectal prolapse: anesthesia, narcotics, surgery, and urine
backup in the bladder—ail of which would have affected the rectum, making
Claimant have to bear down hard, and ultimately causing Claimant’s rectal wall to
collapse.°°
On the issue of permanency, Dr. Bandera assigned Claimant’s rectal issues a
35% permanent impairment rating using Table 6-4 of the Fifth Edition of the AMA
Guides to the Evaluation of Permanent Impairment (the “AMA Guides”).>! Dr.
Bandera concluded that Claimant’s rectal issues qualified for “Class [2] with
objective evidence of colon or rectal disease or anatomic loss or alteration.”° Dr.
Bandera based his conclusion on his visual diagnosis of Claimant and the fact that
Claimant had undergone surgery. Dr. Bandera also opined that Claimant satisfied
the other criteria listed in Class 2: much more than mild gastrointestinal symptoms,
48 Decision on Petition for DACD, at 6 (A91); Dr. Bandera Dep., at 50:13-16 (A46).
49 Decision on Petition for DACD, at 6 (A91); Dr. Bandera Dep., at 50:19-22 (A46).
°° Decision on Petition for DACD, at 6 (A91); Dr. Bandera Dep., at 50:23-51:8 (A46).
>! Decision on Petition for DACD, at 6 (A91); Dr. Bandera Dep., at 51:19-22 (A46). Claimant
attached a copy of Table 6-4 to his motion for reargument. See Claimant’s Motion for Reargument
of Board Decision, Exhibit 1 (A124).
52 Decision on Petition for DACD, at 6 (A91); Dr. Bandera Dep., at 51:23-52:3 (A46). The Courts
notes the spelling error in Dr. Bandera’s deposition transcript. Dr. Bandera Dep., at 52:3 (A46).
53 Decision on Petition for DACD, at 6 (A91); Dr. Bandera Dep., at 52:3-5 (A46).
9
ongoing problems with bowel functioning, minimal dietary restrictions, and mild
symptomatic therapy might have been necessary.**
On cross-examination, Dr. Bandera acknowledged that the Jefferson
University Hospital staff had diagnosed Claimant with hemorrhoids, performed a
hemorrhoidectomy, and referenced a rectal prolapse in their record of Claimant’s
visit.-> He also admitted that Claimant had not had any formal treatment for his
rectal prolapse since the Jefferson University Hospital hemorrhoidectomy.*© Dr.
Bandera opined that the hemorrhoidectomy had repaired Claimant’s rectal prolapse
but did not solve all of Claimant’s rectal and bowel issues.°’ When Dr. Bandera met
with Claimant, Claimant reported bowel movements of up to 12 times a day.°® With
respect to that issue, Dr. Bandera opined that dietary modification would be the
appropriate treatment.°’ Although Dr. Bandera did not know whether Claimant had
undergone that treatment, he knew that Claimant was not seeing a physician for the
60
excessive-bowel-movement issue.
4. Dr. Meyers’s Testimony
4 Decision on Petition for DACD, at 6-7 (A91—92); Dr. Bandera Dep., at 52:6-17 (A46).
5 Decision on Petition for DACD, at 8 (A93); Dr. Bandera Dep., at 66:16—67:3 (A50).
6 Decision on Petition for DACD, at 8 (A93); Dr. Bandera Dep., at 68:6-15 (A50).
57 Decision on Petition for DACD, at 8 (A93); Dr. Bandera Dep., at 67:4-13 (A50).
>8 Decision on Petition for DACD, at 8 (A93); Dr. Bandera Dep., at 67:4-10 (A50).
>? Decision on Petition for DACD, at 8 (A93); Dr. Bandera Dep., at 68:20-69:1 (A50—A51).
6° Decision on Petition for DACD, at 8 (A93); Dr. Bandera Dep., at 68:20-69:7 (A50-A51).
10
The Board summarized Dr. Meyers’s testimony about Claimant’s rectal issues
as follows. On December 5, 2018, Dr. Meyers examined Claimant.®! Claimant told
Dr. Meyers that he had problems with his anal sphincter and that he had been
experiencing diarrhea 10-12 times per day.©? Reviewing Claimant’s medical
records, Dr. Meyers noted that Dr. Murphy had seen Claimant before and after
Claimant’s work accident. According to Dr. Meyers, Dr. Murphy’s records from
around the time of Claimant’s rectal surgery did not reference any bowel issues.™
Nor did they indicate any positive findings for bowel issues when Dr. Murphy
conducted a review of systems.©
Although Dr. Murphy provided Claimant with Colace (a stool softener) to
address Claimant’s post-surgery constipation, there was no record that Claimant was
experiencing diarrhea or that he had any other bowel complaints after the
perioperative period.® In fact, Dr. Meyers observed, the records showed that
Claimant had not followed up with any medical professional about any rectal or
bowel issues outside of the first two months after surgery.’ Dr. Meyers noted that
6! Decision on Petition for DACD, at 15 (A100); Dr. Meyers Dep., at 8:14-18 (A61).
6 Decision on Petition for DACD, at 15 (A100); Dr. Meyers Dep., at 11:17-23 (A62).
63 Decision on Petition for DACD, at 16 (A101); Dr. Meyers Dep., at 20:23—21:2, 21:20-23 (A64—
A65).
64 Decision on Petition for DACD, at 16 (A101); Dr. Meyers Dep., at 22:4—-12 (A65).
65 Decision on Petition for DACD, at 16 (A101); Dr. Meyers Dep., at 22:13-16 (A65).
66 Decision on Petition for DACD, at 16 (A101); Dr. Meyers Dep., at 22:16-21 (A65).
67 Decision on Petition for DACD, at 16 (A101); Dr. Meyers Dep., at 24:7-10 (A65).
11
Claimant had actually denied a change in his bowel habits during a May 25, 2017
cardiology assessment.
On the issue of causation, Dr. Meyers concluded that the work accident did
not cause Claimant’s rectal issues. According to Dr. Meyers, a rectal prolapse does
not occur after one incident; it tends to develop gradually and is usually seen in older
patients and/or patients with chronic constipation or hemorrhoids.”” Despite
Claimant’s constipation—an expected side effect of narcotics and anesthesia—Dr.
Meyers opined that Claimant did not have the typical history of someone who
develops a rectal prolapse.’! Also, Dr. Meyers noted that Claimant was given a stool
softener after his surgery to help him make bowel movements; more recently,
however, Claimant complained of the opposite kind of issues: diarrhea and
excessive bowel movements.” To Dr. Meyers, this reversal suggested that
Claimant’s newer symptoms had some cause other than the work accident.”? Dr.
Meyers also observed that there were no medical documents reporting excessive
bowel movements, diarrhea, or dietary changes.’ Dr. Meyers further testified that
Claimant’s post-surgery constipation healed within the normal time frame—within
68 Decision on Petition for DACD, at 18 (A103); Dr. Meyers Dep., at 61:15—19 (A75).
69 Decision on Petition for DACD, at 18 (A103); Dr. Meyers Dep., at 37:11—15 (A69).
” Decision on Petition for DACD, at 18 (A103); Dr. Meyers Dep., at 37:15—24 (A69).
| Decision on Petition for DACD, at 18 (A103); Dr. Meyers Dep., at 38:1—11 (A69).
” Decision on Petition for DACD, at 18 (A103); Dr. Meyers Dep., at 40:4-13, 40:19-23 (A69).
® Decision on Petition for DACD, at 18 (A103); Dr. Meyers Dep., at 40:23-41:1 (A69—70).
74 Decision on Petition for DACD, at 18 (A103); Dr. Meyers Dep., at 41:22—42:1 (A70).
12
about a month.” Dr. Meyers opined that Claimant’s hemorrhoid and rectal prolapse
must have healed as well because there were no records of any follow-up treatment
after Claimant’s procedures.’
5. The Board’s Findings of Fact and Conclusions of Law
In its February 7, 2020 decision, the Board found that the work accident
caused Claimant’s rectal issues.’ The Board was persuaded by Dr. Bandera’s
opinion on this point.”* The Board also found that Claimant’s treatment for the rectal
issues waS compensable—including the June 26, 2016 _ rectal
prolapse/hemorrhoidectomy.” Yet the Board agreed with Dr. Meyers that
Claimant’s rectal issues were not ongoing, and for that reason, the Board refused to
award Claimant with permanent impairment benefits.*°
The Board did so because it was persuaded by three of Dr. Meyers’s
observations. First, Dr. Meyers noted that Claimant’s post-surgery medical records
contained no complaints about bowel or rectal issues and that, in one record,
81
Claimant actually denied change in his bowel habits.°' Second, Dr. Meyers found
no records showing any formal treatment for rectal issues after Claimant’s rectal
3 Decision on Petition for DACD, at 19 (A104); Dr. Meyers Dep., at 39:7-13 (A69).
7 Decision on Petition for DACD, at 19 (A104); Dr. Meyers Dep., at 39:13-21 (A69).
77 See Decision on Petition for DACD, at 24 (A109).
78 Id.
79 Id.
80 Td. at 24-25 (A109-A110).
8! Td. at 26-27 (A111—A112).
13
prolapse procedure.®” Dr. Meyers inferred from the lack of follow-up treatment that
Claimant’s rectal prolapse/hemorrhoids had resolved. And third, Dr. Meyers
testified that Claimant’s bowel issues appeared to reverse over time; whereas
Claimant experienced post-surgery constipation, his more recent issue was too many
bowel movements.** There was no indication that Claimant had sought to remedy
his bowel issues with dietary treatment, which would have been the appropriate
treatment.®
The Board thus concluded:
[A]ny such outstanding treatment for bowel/rectal issues for two
months following the June 20, 2016 [lumbar fusion] surgery is
compensable. This includes the June 26, 2016 rectal
prolapse/hemorrhoidectomy procedure(s). However, any treatment
after that period of time is not found to casually relate to the August
2015 work incident. Further, having not found an ongoing condition in
terms of causation in this regard, the Board also declines to grant
permanent impairment benefits regarding the rectum/bowels.®©
Importantly for this appeal, the Board also dropped a footnote stating that
Claimant’s compensable medical expenses “shall be paid by Employer
according to the fee schedule under title 19 of the Delaware Code, section
2322B.”8’
82 Id. at 26 (A111).
83 Id.
84 Id.
85 Id.
86 Tq. at 27 (A112) (footnotes omitted).
87 Td. at 27 n.13 (A112).
14
B. The Board’s April 29, 2020 Order
1. Claimant Moves for Reargument
On March 2, 2020, Claimant moved for reargument on two aspects of
the Board’s February 7, 2020 decision: (1) the Board’s refusal to award
permanent impairment benefits for Claimant’s rectal issues and (2) the
Board’s requirement that Employer compensate Claimant for his medical
expenses according to the fee schedule.**
As for the first issue, Claimant noted that Dr. Bandera and Dr. Meyers
had each found some degree of permanent impairment—35% and 13%,
respectively—using the Table 6-4 of the AMA Guides. So, Claimant
argued, the Board also had to find some degree of permanent impairment, and
that finding had to accord with the experts’ findings.°? Claimant suggested
that the Board should adopt Dr. Bandera’s rating because the Board favored
Dr. Bandera’s opinion on causation.”!
Claimant also argued that the Delaware Workers’ Compensation Act
entitled him to permanent impairment benefits.” He noted that 19 Del. C. §
88 Claimant’s Motion for Reargument of Board Decision, at ff 4, 9 (A119, A121).
89 Id. at Jf 4-5 (A119-A120) (citations and footnotes omitted). In its February 7, 2020 decision,
the Board did not reference the 13% impairment rating that Dr. Meyers assigned to Claimant’s
rectal issues, so the Court did not do so above.
90 Id.
| Td. at ¥7 (A120).
92 Id. at 45 n.2 (A120).
15
2326(g) provides for “proper and equitable compensation for the loss of any
member or part of the body.”?? Claimant thus concluded that he was entitled
to permanent impairment damages simply because he suffered anatomic loss
or alteration—and despite the Board’s finding that his rectal symptoms were
not ongoing.”*
Lastly, Claimant argued that whether he had ongoing symptoms was
similarly irrelevant under Class 2 in Table 6-4 of the AMA Guides.” This
was so, Claimant contended, because Class 2 is “largely a surgical category””®
whose primary criteria is “objective evidence of colonic or rectal disease or
anatomic loss or alteration.””’ He noted that both experts agreed that Claimant
qualified for Class 2.8
Claimant then moved onto the fee schedule issue. He began by noting
that Employer had denied the compensability of nearly all of his injuries and
medical treatment.’ For that reason, Claimant had to pay for most of his
treatment using spouse’s health insurance, which costed him much more than
%3 Id. (emphasis supplied by Claimant) (quoting 19 Del. C. § 2326(g)).
4 See id. at § 5 (A120) (footnote and citations omitted).
5 Id. at | 8 (A120).
%6 Td. Claimant borrows “surgical category” from Dr. Bandera’s testimony: “But again I want to
highlight this issue that since he already completed surgery, that well qualifies him for [Class 2] .
... That is a surgical category.” Dr. Bandera Dep., at 74:20—75:1 (emphasis added) (A52).
°7 Id. at | 8 (quoting Class 2, Table 6-4 of the AMA Guides (A124)) (A120).
98 Id
9 Id. J 9 (citations and footnote omitted) (A121).
16
he was going to receive under the fee schedule.'°° Claimant conceded that he
had not raised this issue before the Board.’ Still, Claimant maintained that
it was appropriate to raise it on reargument because he believed that the
Board’s February 7, 2020 decision contained language limiting his recovery
rights against Employer.'”
Claimant’s argument for additional compensation invoked the
collateral source rule and 19 Del. C. § 2322(b).' Claimant asserted that
Delaware had adopted the collateral source rule and had applied it in workers’
104 According to Claimant, the collateral source rule
compensation cases.
prevents an employer from mitigating the amount it owes a claimant simply
because the claimant received compensation from an independent source.!”
Claimant further argued that, pursuant to § 2322(b), when an employer knows
of a claimant’s injuries in advance, it must reimburse the claimant for all
compensable medical expenses that claimant incurred to treat the injuries.
Claimant asked the Board to modify its decision to accord with these rules—
or at least to omit any reference to the fee schedule.'®”
100 Td. at 993, 10 (A119, A121).
101 Id. at § 11 (A121).
102 Td. (citing 19 Del. C. § 2322B).
103 See id. at Ff 12-15 (citations omitted).
104 Td. at JF 12-13 (citations omitted).
105 Td. (citations omitted).
106 Td. at { 14 (citations omitted).
107 Id. at $17 & n.6 (A122).
17
2. Employer’s Response
Regarding the permanent impairment issue, Employer asserted that the
Board has the ultimate authority to decide whether permanent impairment
exists.!°8 No other authority can bind the Board’s decision.!”
Regarding the fee schedule issue, Employer noted that Claimant did not
present the issue at the hearing.'’? Also, Employer argued that because the
work accident occurred in 2015, the fee schedule governs the payment of any
compensable medical expenses. !'!'
3. The Board’s Order
As for the first issue, the Board summarized Claimant’s argument as follows:
the Board must assign a permanent impairment rating between 13% and 35%
because (1) both Dr. Bandera and Dr. Meyers agreed that a permanent impairment
rating was due and (2) Claimant’s anatomy had been permanently altered by the
rectal prolapse surgery.''? Ultimately, the Board affirmed its previous decision to
deny Claimant any permanent impairment benefits. '
108 Order on Claimant’s Motion for Reargument, at 3 (A128).
109 See id.
110 Tq. (footnote omitted).
Wg
2 Td at 3-4 (A128-A129).
13 Tq. at 4 (A129).
18
To begin, the Board disputed Claimant’s assertion that Dr. Bandera based his
rating on the sole fact that Claimant had surgery.''* According to the Board, Dr.
Bandera also took into account the other criteria listed in Class 2 of Table 6-4.'!
Those criteria were Claimant’s gastrointestinal complaints of ongoing bowel issues,
Claimant’s diet restrictions, and the possibility that Claimant might have needed
mild therapy.!!°
Yet the Board was persuaded that Dr. Meyers’s observations undermined Dr.
Bandera’s analysis of these criteria.'!'7 The Board again listed those observations:
(1) Claimant’s work accident-related rectal issues had apparently resolved,'!® (2)
Claimant’s more recent bowel were the opposite of Claimant’s post-surgery bowel
issues,!!? and (3) nothing in the medical records showed any follow-up treatment or
subsequent complaints about rectal or bowel issues.'?? Concluding that Dr. Meyers’s
testimony had negated Dr. Banderas’s findings of ongoing symptoms, the Board
declared that Claimant had “to show something beyond just having had a surgical
114 Id.
"5 Tq. (footnote omitted). The Board noted that even if a medical expert were to assign a rating
based solely on surgical alteration (i.e., without also considering ongoing conditions or symptoms),
“to the Board, Claimant’s symptoms and experiences as a result of the rectal condition are of the
utmost significance in making a determination as to whether a permanent impairment award is
due.” Id. at 4 n.6 (emphasis added) (A129).
116 Tq at 45 (A129-A130).
"7 Td. at 5 (A130).
118 Id
"9 Td. at 5 & n.7 (A130).
120 TZ. at 5 (A130).
19
procedure involving the rectum three or more years ago with no treatment or
complaints document afterward.” !?!
As it did with Dr. Bandera’s 35% rating, the Board denied that Dr. Meyers’s
13% rating was based solely on the surgical alteration of Claimant’s anatomy.'”* It
could not have been, the Board reasoned, because Class 2 is not merely a “surgical
category.”!*3 To show why, the Board quoted the criteria in Class 2 in Table 6-4 of
the AMA Guides and explained that “this rating includes not just a surgical alteration
of Claimant’s rectal anatomy but also . . . subjective gastrointestinal symptoms and
bowel disturbance complaints” and “other criteria.” !*4
Ultimately, the Board decided not to adopt even Dr. Meyers’s 13% rating.'”°
It found that this rating “was based on subjective symptoms that Dr. Meyers (and
the Board) were [sic] not convinced casually related to the industrial accident.’”!°
The Board thus concluded: “Both of the medical experts’ opinions regarding degree
of permanent impairment were—at least in part—based on symptoms that the Board
was not convinced casually relate to the original work accident and/or June 2016
121 Id
122 Td. at 6 (A131).
123 Td.
124 Td. (quoting Class 2, Table 6-4 of the AMA Guides (A124)).
125 Td. at 7 (A132).
126 Td.
20
surgical procedures.”!27. Accordingly, the Board denied Claimant’s request for
permanent impairment benefits for his rectal issues. '*8
The Board then turned to the second issue—the fee schedule.!”? The Board
noted that the fee schedule applies to all treatment covered under the Delaware
Workers’ Compensation Act that was provided on or after May 23, 2008.'3° Because
Claimant’s work accident was in August 2015, the Board reasoned, the fee schedule
necessarily applied to all of Claimant’s covered treatment.’?! The Board also
commented that the fee schedule issue was not truly a “reargument” because
Claimant did not raise it at the hearing.'°? Claimant did not inform the Board that
any of his medical expenses had been paid for, nor did he specify the rate at which
they were paid.43 So the Board directed Employer to compensate Claimant
134
pursuant to the fee schedule. Accordingly, the Board affirmed its previous
decision and denied Claimant’s request to omit references to the fee schedule.'*°
Ill. PARTIES’ CONTENTIONS
A. Permanent Impairment Benefits
127 Tq. (footnote omitted).
128 Id
129 Td. at 8 (A133).
21
1. Claimant’s Arguments
Claimant first argues that, contrary to the Board’s conclusion, whether he
suffers from an ongoing condition is irrelevant.!3° He avers that 19 Del. C. § 2326(g)
of the Workers’ Compensation Act simply provides that “[t]he Board shall award
proper and equitable compensation for the loss of any member or part of the
body.”!3” To further support his point, Claimant notes that in Chrysler Corp. v.
Chambers, the Superior Court affirmed the Board’s award of compensation under §
2326(g) for a surgically removed testicle despite no ongoing medical impact.'** In
the same way, Claimant asserts that he should be compensated under § 2326(g) for
his rectum’s anatomic loss/alteration despite no ongoing condition. !3?
Next, Claimant argues that the board erred by finding that Dr. Meyers based
his rating in part on Claimant’s subjective complaints.'“° In Claimant’s view, Dr.
Meyers based his rating entirely on the anatomic loss or alteration to Claimant’s
rectum.'4! After all, Claimant reasons, Dr. Meyers did not opined that Claimant’s
complaints did not relate to the work accident, so they would not have factored into
Dr. Meyers’s permanent impairment rating. !*
136 Opening Brief, at 15 (Trans. ID. 65927833).
137 Td. (emphasis supplied by Claimant) (quoting 19 Del. C. § 2326(g)).
138 Tq. at 16 (quoting Chrysler Corp. v. Chambers, 288 A.2d 450, 452 (Del. Super. Ct. 1972), aff'd,
299 A.2d 431 (Del. 1972).
139 Td. (footnote and citation omitted).
140 Td. at 17 (footnote omitted).
141 Id.142 Td. at 19-20 (footnote omitted).
22
Claimant also argues that the Board wrongly denied Claimant permanent
impairment benefits by independently determining that Class 2 is not a surgical
3 According to Claimant, the Board read the criteria in Class 2 as
category.!*
conjunctive elements, which, in Claimant’s view, contradicts the experts’
understanding of those criteria.‘ For example, Claimant argues that if the criteria
in Class 2 were truly conjunctive elements, then Dr. Meyers would not have placed
Claimant in Class 2 because he denied that Claimant met any criteria other than loss
or alteration.'*° More generally, Claimant contends that the Board does not have the
expertise to independently interpret and apply the AMA Guides; it must rely on the
experts. !46
Claimant further argues that the Board erred as a matter of law in determining
that it “may award compensation based on the loss or loss of use of any body part of
the claimant’s body.”!47 Claimant asserts that the Board has no such discretion.’
Claimant’s last argument is that the Board failed to articulate a factual basis
for deviating from the experts’ ratings.'4? In Claimant’s view, the Board’s authority
to fix an impairment percentage does not relieve the Board of its obligation to
143 Tq. at 20 (quoting Order on Claimant’s Motion for Reargument, at 6 (A131)).
144 See id. at 20-21 (citation omitted).
\45 Td. at 21 (quoting Dr. Meyers Dep., at 52:2-24 (A72)).
146 See id. at 21-22 (citations omitted).
147 Tq at 22 (emphasis supplied by the Board) (internal quotation marks omitted) (quoting Order
on Claimant’s Motion for Reargument, at 4 n.6 (A129)).
148 Td. at 22-23.
149 Td. at 23.
23
explain itself when its percentage differs from those of the experts.!°° Claimant
insists that the Board did not do so here.'*!
2. Employer’s Responses
Employer argues that the Board properly denied Claimant any permanent
152 According to Employer, Claimant is not entitled to
impairment benefits.
permanent impairment benefits simply because he had rectal prolapse surgery.'*?
Employer also contends that the Board correctly read Class 2’s criteria as a set of
154 So, in Employer’s view, the Board properly refused to
conjunctive elements.
award permanent impairment benefits when it found the evidence lacking for some
of the criteria.°> Employer therefore argues that the Board engaged in a reasoned
decision-making process.!°°
B. Fee Schedule
1. Claimant’s Arguments
Claimant continues to argue for application of the collateral source rule and
19 Del. C. § 2322(b) of the Workers’ Compensation Act.'°’ He contends that
150 Td.
'Sl Td. at 23-24.
152 Answering Brief, at 10 (Trans. ID. 65990099).
'53 Td. at 10.
154 Td at 10-11.
'S3 Td. at 11.
156 Td. at 11-12.
157 Qnening Brief, at 26-31 (citations omitted) (Trans. ID. 65927833). 19 Del. C. § 2322(b)
provides: “Ifthe employer, upon application made to the employer, refuses to furnish the services,
medicines and supplies mentioned in subsection (a) of this section, the employee may procure the
24
Delaware courts have applied the collateral source rule in workers’ compensation
cases to (1) prevent employers from receiving windfalls, (2) facilitate prompt
payment of medical expenses, and (3) accord with 19 Del. C. § 2322(b).!°8
Following the decisions that articulated these rationale, Delaware enacted the fee
schedule at issue.!>?
Claimant notes that whether the fee schedule affects the viability of collateral
source rule or 19 Del. C. § 2322(b) is a matter of first impression.’ For his part,
t.'°! He argues that when Delaware’s General
Claimant submits that it does no
Assembly passed the fee schedule, it could have—but did not—abrogate § 2322(b),
and it has not amended § 2322(b) since the fee schedule was enacted.!
2. Employer’s Responses
Employer argues that the fee schedule issue is not properly before the Court
on this appeal.!* It bases this contention on the Delaware Supreme Court Rule 8,
which provides, “Only questions fairly presented to the trial court may be presented
for review; provided, however, that when the interests of justice so require, the Court
same and shall receive from the employer the reasonable cost thereof within the above limitations.”
19 Del. C. § 2322(b). The thrust of this section, according to Claimant, is to protect “the rights of
injured claimants who, as a result of an employer’s denial, are forced to pay, or otherwise assume
liability, for compensable medical expenses.” Opening Brief, at 29 (Trans. ID. 65927833).
158 Opening Brief, at 27-28 (citations omitted) (Trans. ID. 65927833).
159 Tq, 28-29 (quoting 11 Del. Reg. Regs. 1337 (Apr. 1, 2008)).
160 Tq. at 29; Reply Brief, at 6-7 (Trans. ID. 65999362).
161 Opening Brief, at 29 (Trans. ID. 65927833).
162 Id.
163 Answering Brief, at 15 (Trans. ID. 65990099).
25
may consider and determine any question not so presented.”'®* Employer maintains
that the interests of justice do not require the Court to hear the fee schedule issue
because Claimant could have raised the issue at the hearing but failed to do so.'©
Employer also notes that Claimant has filed a concurrent Huffman action against
Employer demanding payment of medical expenses.'®
IV. STANDARD OF REVIEW
When reviewing an appeal from a decision of the Board, the Court’s role is
limited to determining whether the decision is free of legal error and supported by
substantial evidence.'®’ “Substantial evidence” is less than a preponderance of the
evidence but more than a “mere scintilla.”!® Specifically, substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”!® The Court may not “weigh the evidence, determine questions of
credibility, or make its own factual findings’ '”°
164 Td. at 14 (quoting Del. Sup. Ct. R. 8).
165 Td. at 15.
166 Jq. (citing Richard Quaile v. National Tire & Battery, No. N20C-07-242 MAA). Claimant
denies that his Huffman action relates to the instant appeal. Reply Brief, at 6 n.2 (Trans. ID.
65999362).
167 Standard Distrib. v. Hall, 897 A.2d 155, 157 (Del. 2006).
168 State v. Dalton, 878 A.2d 451, 454 (Del. 2005) (citation omitted).
169 Washington v. Del. Transit Corp., 226 A.3d 202, 210 (Del. 2020) (internal quotation marks
omitted) (quoting Powell v. OTAC, Inc., 2019 WL 6521980, at *4 (Del. Dec. 4, 2019)).
170 Powell v. OTAC, Inc., 223 A.3d 864, 870 (Del. 2019) (internal quotation marks omitted)
(quoting Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009)).
26
When a factual determination is at issue on an appeal, the Court must take
“due account of the Board’s experience and specialized competence.”!”' The Court
“will not substitute its judgment for that of an administrative body where there is
substantial evidence to support the decision and subordinate findings of the
agency.”!” Further, the Board’s discretionary rulings “will not be disturbed on
appeal unless [they are] based on clearly unreasonable or capricious grounds.”!”
The Court reviews legal issues de novo.'™
V. DISCUSSION
A. Permanent Impairment Benefits
1. The Board’s decision not to award Claimant permanent impairment
benefits pursuant to the AMA Guides was supported by substantial
evidence.
The Board noted that “Dr. Meyers rated Claimant’s rectum at 13 percent
impairment .. . in Class 2.”'”° The Board acknowledged Claimant’s position that
Dr. Meyers based his rating “on the surgery/alteration of anatomy alone,” but the
171 Snellman v. Christiana Care Health Servs., 74 A.3d 619, 623 (Del. 2013) (citing 29 Del. C. §
10142(d)).
17 Hellstern v. Culinary Servs. Grp., 2019 WL 460309, at *10 (Del. Super. Ct. 2019) (quoting
Christiana Care Health Sys., VNA v. Taggart, 2004 WL 692640, at *10 (Del. Super. 2004)).
13 Iq. (quoting Christiana Care Health Sys., VNA v. Taggart, 2004 WL 692640, at *10 (Del.
Super. 2004)).
"4 TeVan v. Independence Mall, Inc., 940 A.2d 929, 932 (Del. 2007).
5 Order on Claimant’s Motion for Reargument, at 6 (A131).
27
Board disagreed.'!”° To explain why, the Board first quoted the Class 2 criteria listed
in Table 6-4 of the AMA Guides:
Objective evidence of colonic or rectal disease or anatomic loss or
alteration and mild gastrointestinal symptoms with occasional
disturbances of bowel function, accompanied by moderate pain and
minimal restriction of diet or mild symptomatic therapy may be
necessary and no impairment of nutrition results.'””
The Board then stated that “this rating includes not just a surgical alteration
of Claimant’s rectal anatomy but also . . . subjective gastrointestinal
symptoms and bowel disturbance complaints” and “other criteria.”!”8
Next, the Board recited the portions of Dr. Meyers’s testimony that it
found persuasive: (1) “there had been no rectal treatment or complaints for
three years prior,” (2) “there were records indicating that Claimant denied
having any bowel changes,” and (3) “Claimant’s more current bowel
complaints were different [from] and opposite to the symptoms associated
99179
with the June 2016 surgical procedure. Despite agreeing with Dr.
Meyers’s observations, however, the Board deviated from Dr. Meyers’s
0
conclusion.'8° The Board “elected not to award 13 percent permanent
impairment pursuant to Dr. Meyers’s opinion, particularly in that it was also
176 Id
177 Td. (quoting Class 2, Table 6-4 of the AMA Guides (A124)).
18 Td. (emphasis added).
179 Td. at 6-7 (A131—A132).
180 Tq at 7 (A132).
28
based on subjective symptoms that Dr. Meyers (and the Board) were [sic] not
convinced causally related to the industrial accident.”!®!
To summarize, the Board appeared to reason as follows: Dr. Meyers assigned
Claimant’s rectum a 13% permanent impairment rating in Class 2. A rating in Class
2 is appropriate only if all of the criteria are satisfied. So Dr. Meyers would have
had to find evidence supporting each of the Class 2 criteria, including the subjective
symptoms criterion. But Dr. Meyers’s own observations conflict with the subjective
symptoms criterion. So Dr. Meyers must have based his rating, in part, on subjective
symptoms that he himself was “not convinced causally related to the industrial
182 Thus, the proper conclusion was to assign 0% permanent impairment,
accident.
not 13%.
Claimant, of course, argues for the opposite conclusion: Dr. Meyers was
convinced that Claimant’s subjective symptoms did not casually relate to the work
accident.'83 Yet he still rated Claimant’s rectum at 13% impairment in Class 2.!*4
This shows that Dr. Meyers’s Class 2 rating was based solely on the surgical
alteration of Claimant’s rectum—the criterion that Dr. Meyers did not reject.!®
181 Id.182 Id.183 Qnening Brief at 19 (Trans. ID. 65927833).
184 Td at 15.
185 Td at 17; see also id. at 20.
29
Thus, the Board improperly contradicted Dr. Meyers’s interpretation of the AMA
Guides by assigning 0% permanent impairment when Dr. Meyers assigned 13%.'%°
In Turbitt v. Blue Hen Lines, the Delaware Supreme Court articulated the
scope of the Board’s freedom to deviate from a physician’s opinion:
“Tt is the duty of the Board, not a physician, to fix a percentage to a
claimant’s disability based on the evidence before it. . . . The Board
may set a permanency rating different from that established by a
physician, provided that the Board articulates a factual basis for doing
so... . Although the Board is entitled to discount the testimony of a
witness, even a medical witness, on the basis of credibility, it must
provide specific, relevant reasons for doing so.”!®’
Applying that framework to the facts before it, the Supreme Court concluded that
“the Board was not required to accept [the physician’s] evaluation of 34% disability
at face value... .”'88
Likewise, the Board here was not required to accept Dr. Meyers’s 13% rating
at face value. It could look “under the hood” and question the basis of that rating.
When the Board deviated from Dr. Meyers’s rating, it had to—and did—“articulate
a factual basis for doing so.”!®? That factual basis just so happened to come from
Dr. Meyers’s testimony.
186 See id. at 21.
187 Tyrbitt v. Blue Hen Lines, 711 A.2d 1214, 1215 (Del. 1998).
188 7g
189 Id.30
Claimant further argues, however, that the Board independently interpreted
the AMA Guides to conclude that Claimant should not be awarded permanent
impairment when both experts concluded that he should be.'? But the Board’s
interpretation was not entirely independent. In his deposition, Dr. Bandera expressly
identified each criterion in Class 2 and testified that Claimant had satisfied all of
them.!?!_ The Board took note of this; it did not construe Class 2 language in a
vacuum.!®? Accordingly, the Court finds that the Board’s decision not to award
Claimant permanent impairment benefits pursuant to the AMA Guides was
supported by substantial evidence, and the Court will therefore affirm that decision.
2. In light of 19 Del. C. § 2326(g), the Board erred as a matter of law
by holding that Claimant is not entitled to permanent impairment
benefits absent an ongoing condition.
In Cruz v. Ryder Public Transportation, the Superior Court declared that “[i]n
Delaware, the correct theory of law with regard to permanent injury resulting from
99193
workplace accidents is found at title 19, section 2326(g) of the Delaware Code.
Section 2326(g) provides, in relevant part: “The Board shall award proper and
190 Qnening Brief at 21-22 (citations omitted) (Trans. ID. 65927833).
191 Dr, Bandera Dep., at 51:19-52:20 (A46).
192 Order on Claimant’s Motion for Reargument, at 4-5 (A129-A130). Notably, in his Opening
Brief, Claimant interprets and applies of language in Class 1 of Table 6-4, which neither expert
construed in their testimony. Opening Brief, at 17 (quoting Class 1, Table 6-4 of the AMA Guides
(A124)) (Trans. ID. 65927833).
193 Cruz v. Ryder Pub. Transp., 2003 WL 1563719, at *6 (Del. Super. Ct. Mar. 20, 2003) (internal
quotation marks omitted); see also Davis v. Christiana Care Health Servs., 2015 WL 899599, at
*A (Del. Super. Ct. Feb. 27, 2015) (citing 19 Del. C. § 2326(g)), rev'd on other grounds, 127 A.3d
391 (Del. 2015).
31
equitable compensation for the loss of any member or part of the body or loss of use
.°194 Whereas the Court in Cruz invoked on
of any member or part of the body...
the “loss of use” portion of § 2326(g),'”° Claimant here invokes the “loss of . . . part
of the body” portion.'%° Both invocations are appropriate, and neither requires a
claimant to show an ongoing condition, according to the plain language of
§ 2326(¢).!%7
Indeed, in Chrysler Corporation v. Chambers, the Superior Court dismissed
the employer’s “position that functional loss is essential for compensation under §
2326(g).”!°8 The Court concluded that the claimant was “entitled to compensation
under § 2326(g) for the loss of one testicle irrespective of any loss in sexual
function”—that is, irrespective of any ongoing condition.'? Yet the Board here
refused to grant permanent impairment benefits because it did not find an ongoing
condition.2” Accordingly, the Court finds that the Board erred as a matter of law by
194 19 Del. C. § 2326(g). The Board stated that “under Section 2326 of title 19 of the Delaware
Code, the Board may award compensation based on the loss or loss of use of any part of the
claimant’s body.” Order on Claimant’s Motion for Reargument, at 4 n.6 (A129) (citing
Wilmington Fibre Specialty Co. v. Rynders, 316 A.2d 229 (Del. Super. Ct. Feb. 6, 1974), aff'd 336
A.2d 580 (Del. 1975)). But no subsection of § 2326 uses the permissive verb “may”; in fact, each
subsection of § 2326—including § 2326(g)—uses the mandatory verb “shall.”
195 Cruz, 2003 WL 1563719, at *6.
196 See, e.g., Opening Brief, at 15 (Trans. ID. 65927833); Claimant’s Motion for Reargument of
Board Decision, at § 5 n.2) (A120).
197 Chrysler Corp. v. Chambers, 288 A.2d 450, 452 (Del. Super. Ct. 1972), aff’d, 299 A.2d 431(Del. 1972) (“The clear language of 19 [Del. C.] § 2326(g) expressly states that equitable
compensation shall be allowed either for the loss of a member of the body or the use thereof.”).
198
199 7
2° DACD Petition, at 27 (A112).
32
requiring Claimant to show an ongoing condition to recover permanent impairment
benefits; this error merits reversal and remand to determine the amount of
compensation owed.
B. Fee Schedule
As noted above, Claimant presented the Board with his fee schedule issue on
reargument but not in the underlying hearing.*”’ But the Board did not dismiss the
issue on that basis alone.” In fact, before addressing the procedural issue, the Board
decided that the fee schedule applied to Claimant’s medical treatment because that
treatment was provided after May 23, 2008.7
The Board did not expressly address Claimant’s arguments concerning the
collateral source rule or 19 Del. C. § 2322(b).2 Because these arguments raise an
issue of first impression, the Court believes that the Board should address them.
Accordingly, the Court will remand for the Board to determine whether the collateral
source rule and 19 Del. C. § 2322(b) remain viable theories of recovery in workers’
compensation law despite the enactment of the fee schedule.
VI. CONCLUSION
201 Order on Claimant’s Motion for Reargument, at 8 (“[T]his issue was not raised at the hearing,
nor was there any mention that any of the bills had already been paid or at what rate they had been
satisfied.”) (A133).
202 Id.
203 Td.
204 Td7 Claimant maintains that the Board implicitly rejected his collateral source rule argument.
Reply Brief, at 5 (Trans. ID. 65999362).
33
In sum, the Court affirms the Board’s decision not to award Claimant
permanent impairment benefits pursuant to the AMA Guides, finding that the
decision was supported by substantial evidence. But, in light of 19 Del. C. § 2326(g),
the Court reverses the Board’s decision not to award permanent impairment benefits
absent an ongoing condition, finding that the Board erred as a matter of law. Lastly,
the Court will remand so that the Board can determine (1) the amount of permanent
impairment benefits owed and (2) whether the collateral source rule and 19 Del. C.
§ 2322(b) remain viable theories of recovery in workers’ compensation law despite
the enactment of the fee schedule (19 Del. C. § 2322B).
The decision and order of the Board are therefore AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED IN PART for further proceedings
consistent with this decision.
IT IS SO ORDERED.