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Elliott v. State

Superior Court of Delaware, New Castle

June 30, 2014

SAMUEL ELLIOTT, Claimant-Below/Appellant,
v.
STATE OF DELAWARE, Employer-Below/Appellee.

Submitted: March 3, 2014

On Appeal from a Decision of the Industrial Accident Board of the State of Delaware – AFFIRMED.

Ronald Stoner, Esquire, Ronald Stoner, P.A., Newark, DE, Attorney for Claimant-Below/Appellant Samuel Elliott

John J. Klusman, Esquire and Benjamin K. Durstein, Esquire, Tybout, Redfearn & Pell, Wilmington, DE, Attorneys for Employer-Below/Appellee State of Delaware

OPINION

DIANE CLARKE STREETT JUDGE

Introduction

On February 2, 2007, Appellant Samuel Elliott ("Appellant"), a probation officer for the State of Delaware (the "Employer"), sustained injuries when he and the other members of a Probation and Parole team attempted to apprehend a fugitive. Pursuant to an agreement approved by the Industrial Accident Board (the "Board"), Appellant received temporary total disability compensation for the injuries that he sustained as a result of the 2007 work accident.

On July 12, 2010, Appellant filed a Petition to Determine Additional Compensation Due wherein he alleged permanent impairment to his brain, spine, smell, taste, and balance. On September 17, 2010, the Employer filed a Petition to Terminate Total Disability Benefits, alleging that Appellant was no longer totally disabled as a result of the 2007 work accident. A hearing on both Petitions was held on March 28, 2011.

On July 27, 2011, the Board issued a decision, granting Appellant's Petition, in part. The Board awarded Appellant compensation for seven percent permanent impairment to the spine and denied compensation as to the brain, smell, taste, and balance impairments. In addition, the Board granted the Employer's Petition to Terminate Total Disability Benefits and awarded Appellant partial disability as of the date of the decision. Appellant appealed the Board's decision.

On June 29, 2012, the Court reversed the Board's decision, in part, as to permanent impairment to the brain and remanded the matter to the Board for credibility findings regarding certain expert and non-expert witnesses. The Court also reversed and remanded the Board's decision as to Appellant's permanent balance impairment and termination of his total disability benefits, in the event that the findings on remand impacted the Board's prior decision. The Court affirmed the Board's decision as to permanent impairment to the spine, smell, and taste.

On March 26, 2013, the Board held a remand hearing.

On July 26, 2013, the Board made credibility findings regarding certain expert and non-expert witnesses and reaffirmed its prior decision to deny compensation for permanent brain and balance impairments and to terminate Appellant's total disability benefits.

Appellant has appealed the Board's decision on remand.

For the reasons set forth below, the Board's decision is affirmed.

Factual Background

Relevant portions of the factual background from the Court's decision prior to remand[1] are summarized below:

Appellant "was a competent member of a Probation and Parole team that operates in a SWAT-like fashion to apprehend escapees from the criminal justice system."[2]

On February 2, 2007, Appellant sustained injuries to his head, neck, right shoulder, and spine as his team attempted to apprehend a dangerous fugitive. He received ongoing treatment from "a series of physicians for pain, chronic headaches, memory loss, dizziness, balance impairment, and blurred double vision."[3]

Procedural History

On July 12, 2010, Appellant filed a Petition to Determine Additional Compensation Due with the Board and sought compensation for permanent impairment to his brain, spine, smell, taste, and balance as a result of ...


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