No Headache For This Claimant When DE IAB Allows Permanent Impairment Benefits To Both The Brain And The Head



By Cassandra Roberts, Young Conaway Stargatt & Taylor 

In 2006 the claimant was struck in the head by a falling box. Prior to the litigation in question, there was a voluntary award of 5% impairment to the brain; the testimony of Dr. John Townsend (for the claimant) suggests the rating was based upon depression and the testimony of Dr. William Sommers (for the employer) suggests the rating may have been based upon what he characterized at the hearing as a trigeminal neuralgia. Dr. Sommers endorsed the opinion, however, that the brain impairment was all-encompassing and that there was no separate impairment to the head owed, in response to the Petition to Determine Additional Compensation Due in which the claimant sought to recover an additional 10% to the head for this 2006 trauma and related residual symptoms.

The case? Franklin Wallick v. Wal-Mart Distribution Center, IAB# 1292996 (5/28/10). Dr. Townsend relied upon the AMA Guides, 6th Edition, which addresses post-concussive headache, and also "The Guides Newsletter", explaining that the 5th Edition of the Guides, specifically Table 13-8, page 325, has a means of rating the brain based on depression, but does not address the issue of headache.

The outcome? An award of 10% to the head based upon the insight of Dr. Townsend, but noting that the physicians concurred that the claimant had developed post-concussive headaches and occipital neuralgia in the wake of the work accident. And that they agreed that the AMA Guide 5th Edition fell short in addressing complaints of headache or facial and sensory impairment.

Why worth blogging about?

  • Dr. John Townsend in a cameo appearance as the claimant's

medical expert

  • The AMA Guide 6th Edition being selected by the IAB as superior

to the AMA 5th

  • The AMA Guide 6th Edition in a cameo appearance as the

claimant's champion of increased benefit entitlement

  • A noteworthy permanency case that did NOT involve Doc Rodgers?

Author's Comment: Okay, all my friends out there in the claimant's bar- do you really want to push for blanket adoption of the AMA 5th ? Would seem a little ill-advised in the wake of this particular case.


Stay cool! More poolside reading coming your way!


 Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts

This post is provided by LexisNexis Workers' Compensation Law Community. 


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