A Delaware Supreme Court ruled that an injured bus driver may be entitled to permanent impairment benefits.

In the case of “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 of 2016, he was released to light duty but after returning to work he said 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.

He then filed a petition for permanent impairment. While both parties’ experts agreed there was some degree of permanent impairment suffered by Washington, the accident board noted they had ruled he had “fully recovered” from his injury as of December 5, 2016 and had 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 he 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 there is a “lack of substantial evidence in the record to support a finding that he does not suffer from a permanent impairment,” and reversed and remanded the case.

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