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Jennings v. Avon Products, Del. Super. C.A. No. N11A-08-005 WCC (Jan. 4, 2013), IAB No. 1331399 (July 20, 2011).

The Industrial Accident Board determines that Claimant is not entitled to permanency benefits to the Head, Neck, Brain and Vestibular System as a result of a head trauma. The Superior Court affirmed.

In this case Claimant was injured at work when a thirteen (13) pound box fell and struck him in the head. Claimant alleged headaches initially and shortly thereafter complained of ringing in his ears, dizziness and neck pain. Claimant ultimately treated with a neurologist who rendered permanency opinions in connection with the then-pending litigation. Claimant alleged permanency to the Head (headaches), Cervical Spine (neck), Brain (psychological) and Vestibular System (vertigo). Employer opposed Claimant petition, arguing that Claimant had suffered no permanent impairment and that the record was devoid of objective signs of permanency.

In analyzing the Claimant's allegation of impairment to the spine, the Board noted that Claimant's physician rated the permanency prior to the completion of a course of physical therapy and that physical therapy records indicated that the course of therapy had improved his symptoms by "90%". Additionally, the Superior Court noted that Claimant's expert's opinion was, in part, based upon symptomology that he had not personally observed, but rather that he had found in the medical records of other clinicians.

The Board conducted a searching analysis of the alleged permanent impairment to Claimant's Vestibular System. Claimant's expert testified that he performed an objective test, a "Hallpike's" maneuver to determine permanent impairment as a result of Claimant's allegations of vertigo; that test was positive. However Employer's expert testified that standard practice would be to continue testing and perform an "electronystagmogram" to establish a vestibular disability. The Board found that Employer's expert was more closely aligned with the examples contained in the AMA Guide to the Evaluation of Permanent Impairment. Moreover, the Board relied upon evidence that Claimant had no difficulty tandem walking, nor does Claimant have any restrictions upon his ability to drive.

The permanency ratings regarding Claimant's head and brain were similarly resolved in favor of Employer's expert. Importantly, the Board looked to the lack of objective evidence supporting these ratings. With respect to the alleged Brain (psychological) permanency, the Superior Court succinctly highlighted that the Board must (and did) determine whether Claimant had sustained permanent psychological disability, mere causation of one psychological symptom does not fulfill the Claimant's burden. There was no psychological or neuropsychological testimony at the hearing, nor were there any objective signs of permanent psychological disability related to the work injury. Accordingly the Board denied Claimant's petition and the Superior Court found that the Board's determination was supported by substantial evidence and free from legal error.

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