Prior impairment rating reduces benefits for Delaware worker

Under Delaware law, an employer may be required to compensate an employee for a subsequent work-related injury to the same body part.

Case name: Mays v. NVF Co., No. 08A-09-004 WCC (Del. Super. Ct. 05/29/09).

Ruling: The Delaware Superior Court upheld the Industrial Accident Board's conclusion that the employee's permanent impairment rating and award should apportioned.

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What it means: Under Delaware law, an employer may be required to compensate an employee for a subsequent work-related injury to the same body part. However, the employer is only required to pay the compensation that would be due for the subsequent injury without taking the previous injury into consideration.

Summary: A worker injured his lower back on the job trying to maneuver a 725-pound barrel. A treating doctor stated the worker suffered a 17 percent permanent impairment of his lumbar spine. The doctor testified that he previously treated the employee for prior back injuries and prepared a report indicating the worker had a 10 percent permanent impairment rating. The employer argued that any previous permanent impairment would reduce the percentage attributed to the subsequent injury. The employer argued that the worker only had a 7 percent impairment rating. The worker also argued that a permanent impairment award had not been issued based on the initial injury and that his impairment rating could not be apportioned. The Delaware Superior Court rejected the worker's argument, finding the worker incorrectly interpreted the law to mean a prior award of compensation had to be entered before apportionment of a permanent impairment rating could occur.

The court noted that no previous award had been entered, nor was there any agreement as to compensation, and thus the law was not applicable. The court pointed out that the treating doctor had simply prepared a report indicating a permanent impairment of 10 percent. However, the court noted that the fact that the worker did not seek benefits previously did not prevent the board from apportioning the award. The board's determination was the initial determination of benefits and its determination of the degree of permanency that could be attributed to the subsequent injury. It held there was sufficient evidence to support the board's conclusion that the worker sustained a 7 percent impairment rating to his lumbar spine.

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July 23, 2009

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