First of all, here is a picture of my cat trying to drink out of a "to-go" cup. While this has nothing to do with anything relating to today's post, I am proud of Nutella Grace and rightfully so. She is one clever kitty ..............
Speaking of clever, the case for consideration today is a Superior Court reversal of an award of TTD based on a little case of the sleight of hand. Delaware Home and Hospital v. Edith Martin, Del. Super., CA #K11A-07-001 (RBY). The facts are this:
Claimant sought an award for recurrent TTD supported by a doctor's disability note. She had not been employed for the few years leading up to the "no work" slip such that defense counsel argued she had voluntarily withdrawn from the work force and accordingly, was not entitled to TTD benefits, which represent wage replacement. So far, so good.
Claimant the came in and testified as to her fervent efforts to become employed in that time frame, citing job applications, additional schooling, and a program of rehabilitation. The Board allowed this testimony over objection, and awarded TTD based on the proposition that the claimant's lack of employment was not a voluntary decision to withdraw from the established labor market. Which just goes to show that when you name your child Edith, there is an imprimatur of credibility that cannot be overcome....
Anyway, the basis of the appeal was the fact that the defense had twice issued a Request for Production of any and all information regarding claimant's job search efforts since the work accident. Claimant did not supply any such documents or information and also argued that this information was not subject to discovery because it was not memorialized in a document (isn't that what they all say!)
The Superior Court on appeal found that the Board abused its discretion in allowing the testimony and reversed and remanded, stating as follows:
The Board expressly considered claimant's testimony regarding her schooling and job search efforts. Appellant requested information relative to this sort of activity on two occasions.
Claimant did not disclose the information on the theory it was not memorialized in any document. Hence, according to claimant, the information was not subject to Appellant's discovery requests. Claimant claims that listing her efforts would be tantamount to answering an interrogatory. According to claimant, interrogatories are not included in discovery for matters before the Board. This sort of razor-thin distinction could appear to border on what was once referred to as "unhandsome dealing." Not having the information in some formalized, written form is decidedly not the equivalent of not having the information.
This is a pretty cool case. It also seems to stand for the proposition that interrogatories are permissible. I think it all comes down to fair dealing and avoiding "trial by ambush" at all costs. I have seen this situation arise in other contexts and my position is that information would exist in formal documentary form but that some level of interrogatory-type information must be supplied to get to the heart of the matter. The claimant earned a degree and one would assume there is a transcript available from the college or educational entity that conferred the degree. One would need to know that the schooling occurred and where it occurred.
It will be very interesting to see what happens with the remand hearing. I will rely upon defense counsel Christine O'Connor to keep us all informed.
Irreverently yours,Cassandra Roberts
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Interrogatories are permissible if you apply to the Board and can show that the particular problem requires you to be able to make inquiry beyond exchange of documents. See APA. However, you can not simply propound them and expect an answer. Moreover, I wonder what the Judge thinks he is doing when his position is antithetical to Messick, v, Star Enterprises where the Court recognizes that the Board discovery rule is limited to document production and in the past when the Court found fault with the Board's rules they instructed them to consider the problem and perhaps adopt a rule. Here the Court seems to be saying that you will use the Superior Court rules in IAB. That would be a mistake.
great blog, i enjoy reading all your posts!