Submitted: April 3, 2018
Appeal from the Industrial Accident Board AFFIRMED
EASON PRIMOS, JUDGE
Richard Gaskill (hereinafter "Mr. Gaskill") has
appealed a decision of the Industrial Accident Board
(hereinafter the "Board"), which denied Mr.
Gaskill's petition to determine additional compensation
due for permanent impairment to his left lower extremity
(hereinafter the "Petition"). The Court's
review is confined to the facts contained in the record, and
it is those facts that are referenced herein.
Gaskill was employed by the State of Delaware (hereinafter
the "State") as Assistant Principal for Laurel High
School. On January 15, 2013, Mr. Gaskill sustained injuries
to his lumbar spine, neck, and right shoulder while
attempting to break up a group of fighting students
(hereinafter the "Accident"), and later received
compensation for these injuries. On March 9, 2017, Mr.
Gaskill filed the Petition, seeking compensation for
permanent loss of function to his left lower extremity, which
he claims to flow from the Accident as well.
hearing was held before the Board on August 30, 2017, at
which both sides presented expert testimony. Mr.
Gaskill's expert, Dr. Stephen Rodgers, opined that Mr.
Gaskill's previous disability rating for his lumbar spine
did not cover impairment for his left lower extremity
symptoms, and that a separate permanency rating was
State's expert, Dr. Jonathan Kates, testified that while
he agrees that Mr. Gaskill has symptoms in his left lower
extremity, those symptoms stem from his back injury, and that
the prior disability rating for Mr. Gaskill's back
specifically incorporated his left lower extremity symptoms.
Dr. Kates used the Diagnosis Related Estimate (hereinafter
"DRE") found in the Fifth Edition AMA
Guides to make this argument. Under the AMA
Guides, Mr. Gaskill was previously rated as having a DRE
Category V lumbar spine injury, and that rating requires
findings of various symptoms relating to the lower
extremities: radicular symptoms, atrophy, loss of reflexes,
sensory changes, loss of sensation-the same symptoms of which
Mr. Gaskill complains in his left lower extremity, and for
which he sought a separate disability rating from the Board.
Page 524 of the AMA Guides also provides that
"[i]f lower extremity impairment is due to an underlying
spine disorder, lower extremity impairment in most cases
would be accounted for in the spine impairment rating."
Board denied Mr. Gaskill's Petition on September 13,
2017, reasoning that the State's expert witness testimony
was more convincing, and that the AMA Guides
instructions indicated that a separate permanency rating is
generally unavailable. The Board found that Mr. Gaskill's
left lower extremity injury had already been taken into
consideration and compensated in his prior benefits payments.
appeal from an administrative board's final order to this
Court is confined to a determination of whether the
board's decision is supported by substantial evidence and
free from legal error. Evidence is substantial when it is such
that a reasonable mind might accept as adequate to support a
conclusion. The Court views the record "in the
light most favorable to the prevailing party," and takes
into account the Board's experience and special
competency in workers' compensation
matters.When parties present expert testimony to
the Board, "the Board is free to choose between
conflicting medical opinions, and either opinion will
constitute substantial evidence for purposes of an
appeal." The party that attacks the board's
decision as unreasonable and capricious bears the burden of
Cross v. State, this Court reversed a decision of
the Board to deny a petition for a permanent impairment
rating to the lower extremities separate from an impairment
rating for the lower back where loss of function in the lower
extremities was attributable to the lower back
injury. The Cross decision is distinct
from the current case for at least four reasons.
in Cross, the employer had previously agreed to a
permanency rating for the claimant's left lower
extremities, and this Court therefore remanded to the Board
for clarification of the Board's statement that a
separate rating for the lower extremities was not
appropriate. In this case, by contrast, the State had
never agreed to a separate permanency rating for the lower
extremities prior to the hearing.
the Cross court found that symptoms of the lower
extremities "help[ed] to assess the impairment to the
spine, but [did] not preclude the separate rating of the legs
for permanent impairment," and further found that the
issue of separate ratings for the back and legs had
previously been settled when the Board granted separate
permanency ratings for both. Here, there was no previous
approval by the Board of a separate permanency rating for the
left lower extremity.
in this case, the Board, in reaching its conclusions,
specifically relied upon the statement in the AMA
Guides that "[i]f lower extremity impairment is due
to an underlying spine disorder, lower extremity impairment
in most cases would be accounted for in the spine impairment
rating." In Cross, no such statement was ever
before the Board or the Court, nor did such a concept factor
into the Court's decision.
in Cross, the Court faulted the Board not only for
revisiting the issue of separate permanency ratings for the
spine and legs, but for doing so "without any supporting
evidence whatsoever." Here, however, there was ample
support for the Board's decision, including Dr.
Kates' conclusion that the 34% permanency rating for the
lumbar spine accurately reflected the entire functional ...