The Quaile case . . . And a Rectum in a Pear Tree!

Nov 30

Bring on the Boudreaux Butt Paste. It is no secret that we have a baby in our household, my namesake Viviana Cassandra. As such, I change my share of diapers and frequently check out that precious little anal sphincter for proper function. That Boudreaux Butt Paste is a lifesaver when things run amuck. I am thinking that claimant Richard Quaile needs some of that in his Christmas stocking this year. And in this season of holiday reflection, the Superior Court offers much to pause on, as to the value of a rectum.

The case is Richard Quaile v. TBC Corp., N20A-05-003 JRJ (Del. Super. Ct. Nov. 10, 2020) (Jurden, P.J.) If this case were a diaper, it would be a veritable “blowout”, let me tell you. It contains both the conclusion that the Industrial Accident Board committed error of law in holding that 19 Del. C. § 2326(g) requires an ”ongoing condition” as a prerequisite to a permanency award, and the first impression issue of whether the collateral source rule and 19 Del. C. § 2322(b) remain viable theories of recovery despite the Fee Schedule enactment of Section 2322B.

A brief review of the facts:

Dr. Bandera rated the claimant with a 35% rectal permanency based on Table 6-4 of the Fifth Edition of the AMA Guides. The defense medical expert, Dr. Meyers, rated a 13% impairment, also using Table 6-4 of the Guides. Commingled in the permanency analysis was the issue of whether the fact that claimant had rectal prolapse surgery constituted an anatomic loss or alteration so as to automatically trigger a permanency entitlement, in tandem with an overriding concern on the part of Dr. Meyers and adopted by the Board that the medical records suggested the absence of any follow-up treatment in the last 2-3 years. There was also a dispute as to whether Class 2 of Table 6-4 of the Guides is “largely a surgical category” such that claimant’s hemorrhoidectomy alone would merit a PPD award. So that was the first basis of the appeal given that the Board awarded no permanency in the absence of an ongoing condition, with the Superior Court reversing and remanding.

The second concern, raised post-hearing, was the fact that the Board, in finding the initial presentation of the rectal issues and the resulting surgery compensable, awarded the medical bills to be paid pursuant to the Fee Schedule. Such bills had already been paid by the claimant’s spouse’s health carrier in an amount greater than what the Fee Schedule would allow, with the claimant invoking the collateral source rule on appeal. The Court has remanded to address this “issue of first impression.”

Okay so as a defense attorney, I probably should not put this on my list for Santa, but I want there to be a permanency award . . . only so we can establish the value of a rectum (in contrast to the bowels) . . . And hey, dear readers, if the rectum has already been valued in a prior decision, give me a shout and I will educate us all in our next post. What a precious little stocking stuffer that would be!