Submitted: October 17, 2012
Appeal of a Decision of the Industrial Accident Board.
Gary S. Nitsche, Esquire, Michael B. Galbraith, Esquire
Anthony M. Frabizzio, Esquire John J. Ellis, Esquire Heckler & Frabizzio
This is my decision denying the appeal of a petition filed by the Estate of Herbert Mitchell ("Estate") for permanency benefits. The death of Herbert Mitchell ("Mr. Mitchell" or "Decedent") occurred June 4, 2008 as the result of a compensable work accident. The Estate, consisting of Mr. Mitchell's three daughters after his wife died, receives statutory death benefits. The Board denied the petition for permanency benefits, and the Court affirms.
Facts and posture.
While Mr. Mitchell was working inside an empty grain bin, 20 tons of soybean meal poured over him into the bin, killing Mr. Mitchell within several minutes. An agreement for death benefits pursuant to 19 Del.C. § 2330 was reached by Employer Allen and Decedent's Estate on January 19, 2009. On May 6, 2011 the Estate filed a petition for a 100 percent permanent impairment award for each lung based on the opinion of Stephen J. Rodgers, MD. Employer filed a motion to dismiss the petition, which the Board denied, finding that the issue was a fact question requiring a full hearing.
After having an unnoticed autopsy performed October 10, 2011, the Estate filed a second petition seeking 100 percent permanency awards for the kidneys, brain, heart and digestive systems. Employer motioned to exclude the autopsy results based on the unfair advantage to the Estate.
A hearing was held on Employer's motion to exclude January 4, 2012. The Board found that the prejudice to Employer by lack of notice of the autopsy was not so great as to bar the autopsy results from the hearing. However, the Board ordered that an adverse inference would be applied so that reasonable doubts about the autopsy evidence would be resolved in Employer's favor. Employer filed a motion for reargument.
Hearing on the merits.
On March 14, 2012, the Board convened a hearing on the permanency petitions and the motion for reargument on exclusion of the autopsy results.
Stephen J. Rodgers, MD, testified for the Estate. He was hired to provide a permanency evaluation on the Estate's behalf. He is board certified in disability evaluation and occupational medicine. He generally uses the American Medical Association ("AMA") Guidelines to determine permanency ratings, but the Guidelines do not address cases where the individual dies within minutes of the accident or event. Dr. Rodgers assigned a 100 percent permanency rating to each of Decedent's lungs based on compression of the lungs, which also caused small lacerations on the lungs and lung collapse.
Richard Callery, MD, testified by deposition on behalf of the Estate. He is the State's Chief Medical Examiner, who performed the autopsy acting in his personal capacity. He agreed that the cause of death was suffocation, and stated that Decedent's lungs were irreparably damaged by the accident prior to death and that the lung damage would have caused permanent impairment to the heart, kidneys, brain and digestive system. The lungs were collapsed and a tear was found in each lung consistent with a compression injury. The tears were not consistent with the hole that results from a standard ...