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Bus driver may be entitled to permanent disability benefits

workers comp

An injured bus driver may be entitled to permanent impairment benefits, the Delaware Supreme Court ruled Monday.

In Washington v. Delaware Transit Corp., the court unanimously reversed and remanded an industrial accident board decision that dismissed the driver’s petition for permanent impairment.

LeShawn Washington worked as a bus driver for Wilmington-based Delaware Transit Corp. when he injured his left shoulder in a work accident in August 2016. After undergoing surgery, he was placed on disability.

In December 2016, Mr. Washington was released to light duty work but after returning to work said that his shoulder condition had worsened. When Delaware Transit refused to pay for a recurrence of total disability, he filed a petition for temporary total disability benefits, which were denied by the industrial accident board.

Mr. Washington then filed a petition for permanent impairment. While both parties’ experts agreed there was some degree of permanent impairment suffered by Mr. Washington, the accident board noted that it had previously ruled that he had “fully recovered” from his injury as of Dec. 5, 2016, and dismissed his petition on that basis.

Mr. Washington appealed to the superior court, which held that the board’s decision was supported by substantial evidence. He appealed that decision, arguing that the board failed to consider testimony regarding his permanent impairment.

The Delaware Supreme Court reversed the superior court’s ruling, agreeing with Mr. Washington that the board erred when it denied his petition solely based on testimony presented in connection with his temporary total disability petition. The court held that the board and superior court erred in ruling that Mr. Washington did not suffer from a permanent impairment based on the “fully recovered” language in the temporary total disability opinion.

The Supreme Court found that the board should have answered the question of whether Mr. Washington had suffered a recurrence of a total disability. Although Delaware Transit argued that the board is free to choose between conflicting medical opinions, the Supreme Court held that the board failed to consider Mr. Washington’s expert’s testimony regarding the degree of his permanent impairment because the board dismissed the petition at the outset.

As a result, the court held that there “is a lack of substantial evidence in the record to support a finding that (Mr. Washington) does not suffer from a permanent impairment,” and reversed and remanded the case.