Claimant was involved in a rather significant compensable work-related motor vehicle accident on September 22, 2016. He was struck from behind by a truck traveling at a high rate of speed. He sustained numerous injuries including traumatic brain injury, concussion with loss of consciousness, diffuse axonal injuries, subarachnoid hemorrhage, scalp lacerations and hematomas, carotid artery wall damage, right pulmonary contusion, 10 rib fractures (at least 4 of which were displaced fractures), a thoracic spine transverse process fracture, and cervical/lumbar strains. He was hospitalized for one month between acute care and in-patient rehabilitation.

Over one year after the injury, Claimant was seen by Dr. Meyers for a permanency evaluation, and he rated the following: 16% to the brain, 10% for headaches, 11% for the cervical spine, 22% to the thoracic spine, and 8% to the lumbar spine. Employer had Dr. Townsend evaluate the Claimant, and he found 10% permanency to the brain, no headache impairment, and only 7% permanency to the lumbar, thoracic, and cervical spines.

The Board noted that despite the significance of the initial trauma, they needed to look at this matter with regard to actual residual effects and complaints. They stated that Dr. Meyers had done just the opposite, focusing on the acute state, which ignored the Claimant’s significant recovery. Mental status testing only 3 months post-accident showed that the Claimant made substantial cognitive gains following the accident. He had little to no headache complaints or treatment for over a year before the Hearing. The Board also felt it was important that Claimant returned to work as a high school dean and later teacher rather quickly after the accident, and noted that this spoke to the return of his cognitive function and lack of headaches. The Board was also rather critical of Dr. Meyers thoracic permanency rating. Dr. Meyers testified that he rated 2% permanency for the thoracic transverse process fracture, and the remaining 20% of his rating was based on 2% permanency for each of Claimant’s 10 rib fractures. The Board accepted Dr. Townsend’s testimony that these rib fractures were healed. There was no loss of function. The only effect on function the ribs could possibly have would be pulmonary, and the Claimant had no such complaints in his records. Given the significant flaws in Dr. Meyers analysis on brain, headache, and thoracic permanency, the Board found Dr. Townsend more reasonable and accepted all of his ratings as to the brain, thoracic spine, neck and low back and no impairment rating as to the headaches.

Should you have any questions concerning this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.

Timothy Jubilee v. State, IAB Hrg. No. 1448320 (July 17, 2018).

Discovery No Substitute

For Properly Pled Complaint

On October 16, 2015, Plaintiff, a minor, was reportedly “assaulted, battered, and head butted” by another student while on schoolyard premises. Plaintiff brought a negligence claim against Defendant, the owners/operators of the schoolyard premises, alleging that Defendant acted “with a reckless indifference to the rights of the minor Plaintiff at the time of the alleged attack.”

Defendant filed a Motion to Dismiss arguing that; 1.) Plaintiff’s complaint failed to plead that Defendant’s alleged negligent supervision was a ministerial action, 2.) the complaint failed to plead that Defendant acted without good faith towards their students, and 3.) the complaint did not state the circumstances constituting gross negligence with particularity. Plaintiff contended that Defendant’s acts or omissions were ministerial, not discretionary, because “an act is ministerial if the act of the official involves less in the way of personal decision or judgment, or the matter for which judgment is required has little bearing on the importance upon the validity of the act.” Further, Plaintiff claims that in order to demonstrate that certain acts or failures to act are ministerial, a Plaintiff must show the existence of maintained mandatory policies or procedures that defendant ignored or otherwise failed to follow.

The Court concluded that Plaintiff failed to meet the burden of proving the absence of discretionary conduct by the Defendant because Plaintiff failed to provide any facts that show Defendant failed to supervise, or exercise due care to protect the Plaintiff. Further, Plaintiff was not entitled to further discovery in order to determine whether Plaintiff’s allegations can be supported. The Court had previously held that though discovery may be properly used to supplement the pleadings with additional details, its function is not to serve as a substitute for the complaint, which must contain facts that are believed to constitute the Plaintiff’s cause of action. Therefore, Defendant’s Motion to Dismiss was Granted.

Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.

Valeria Ward, as Next Friend of Zachery Ward, minor, v. Gateway Charter School Inc. (Del. Super. Ct. July 18, 2018) (unreported).