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Workers' Compensation

Doctor In the House: DE Superior Court Calls For Use Of Video-Depositions In IAB Hearings

Today's post comes to me by way of claimant attorney Dave Boswell.   Dave thought it was particularly blog-worthy and I wholeheartedly agree........ talk about the potential to create a whole new world in the arena of medical depositions and IAB expert testimony.

The case is Ryan Tibbitts v. United Parcel Service, No. N12A-03-006WCC ( Del. Super. March 28, 2013).

Claimant was denied benefits at the IAB level and appealed.  The Board ruled that claimant failed to establish that his work activities were a substantial cause of his low back pain.  The parties agreed that the onset of low back pain occurred in the course of his employment with UPS and the dispute focused on the issue of "did it arise out of?"  Factually the claimant recited that he was in his UPS delivery truck crossing the St. George's Bridge when an onset of back pain "came out of nowhere."  And therein lies the rub.....

Judge Carpenter's decision on appeal examines the criteria of both "in the course of" and "arising out of".  He acknowledged that the Board declined to apply the "but for" standard of Reese v. Budget, [enhanced version available to subscribers], because neither the claimant nor his medical expert could identify specific and identifiable work activity as triggering the onslaught of low back symptoms...... and agreed.

Judge Carpenter was disturbed that the basis of the Board's decision denying benefits was the failure of claimant's medical expert to use certain legal buzz words such as "substantial factor."  There is a critique of how the medical deposition was conducted on behalf of the claimant-"Unfortunately counsel for Tibbitts was transfixed on his theory of an actual event that caused the injury instead of developing the more reasonable substantial factor theory."  Dr. Yalamanchili's causation testimony was scrutinized and deemed supportive of causation under the "substantial factor" litmus test,  with the court specifically commenting- "Any reasonable reading of Dr. Yalamanchili's  testimony would suggest that not only was Tibbitts' employment a substantial factor in causing the injury, it was, in the doctor's opinion, the only factor to cause the injury...."

So what's so special about this case?

Number one, the case was reversed, with the Court taking the rare step of disqualifying the Board's assessment of medical expert credibility, noting this is usually sacred territory.  Moreover, the Court seems to disparage the use of a defense medical expert who engaged only in a record review, in lieu of seizing the opportunity to examine the claimant ("To say this testimony was convincing would be an extreme exaggeration").

However, the most arresting part of the Court's opinion is the commentary that slams the introduction of medical testimony by written transcript summarized by counsel.   Here's what the Court had to say:

While the Court appreciates that it would be nearly impossible and quite costly for the physicians to physically appear before the IAB in order to truly assess their credibility, technology today would certainly seem to suggest that the way hearings have been done since administrative boards were created decades ago is no longer reasonable or appropriate.  Videotaping of depositions has now become the norm, and new technology allows for other alternatives in the less formal evidentiary proceedings of an administrative board.  Assessing credibility is a human art that is best done when one can see and hear the expert.....With the tools available to counsel today, providing more than a written transcript of an expert's deposition should be the norm, and the IAB should demand such of counsel.

Wowza.  Today's case raises a cautionary tale for both practitioners and the Board.  The only exoneration for the Board's "misinterpretation" of medical evidence, is the fact that the claim was presented "in a disjointed and somewhat inconsistent" fashion.  Ouch!

From the Sassy Cassy vantage point, here are the issues that are created by the above:

·   Is the Board going to take the comments of Judge Carpenter to heart?  There are already rules of procedure in place that essentially disallow (or at least strongly discourage) the presentation of any lay testimony by deposition.
·   What about the increased expense, which no doubt will be felt much more intensely by the claimant than the defense?
·   If physician depositions are to become de rigeur, will the Department of Labor conduct scheduling such to allow more time for merits hearings?

Time will tell.  In the meantime, yours truly will be waiting for the answers to all this and much more......on the edge of her seat.

Irreverently yours,
Cassandra Roberts

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