Delaware IAB Again Whittles Down Medical Witness Fee for Live Testimony

Delaware IAB Again Whittles Down Medical Witness Fee for Live Testimony

For the second time in as many months, the Delaware Industrial Accident Board has disallowed an application for the statutory maximum medical witness fee allowed under the new regulations enacted May, 2008.  Pursuant to a Legal Hearing convened in Larry Smith v. Sun Belt Holding Inc., IAB Decision, Hearing No. 1285437 (June 23, 2009) (Order), the Board ruled that not all Hearings warrant the maximum $3500.00 fee in the event of an award to the claimant.

 By way of background, the claimant was awarded compensation for permanent impairment benefits under 19 Del. Code Section 2326 for 10% to the thoracic spine in accordance with the testimony of his expert, Dr. Stephen Rodgers.  The Board's award of permanency included an assessment of a medical witnesses fee against the employer, as allowed by statute, 19 Del. Code Section 2322(e) without reference to any specific amount.  In Delaware, the general practice is that the medical witness fee invoice, whether for deposition or live testimony, is routinely tendered after the hearing.  New regulations enacted May 23, 2008 set a limit on the amount of the medical witness fee that can be assessed against the employer, specifically $2500.00 for deposition testimony and $3500.00 for live testimony.

In the instant case, the claimant's counsel forwarded a $3500.00 statement to the employer's counsel for reimbursement for the testimony of Dr. Rodgers.  The employer objected to the amount on several grounds:

1) that a recent Board decision reduced the medical witness fee from $3500.00 to $2500.00 under similar circumstances.  See Keith Faulkner v. M. Davis & Sons, Inc., IAB Decision, Hearing No. 1222054 (April 9, 2009) (Order);

2) that the $3500.00 charge bore no reasonable relationship to the time that Dr. Rodgers spent at the Hearing;

3) that the case in question was relatively simple.

After entertaining the arguments of the parties, the Board reduced the medical witness fee from $3500.00 to $2500.00 as it did in Faulkner.  The Board appeared influenced by the fact that the testimony in question did not involve any novel medical issues and took up approximately one hour of trial time, with further consideration that the doctor's office was located approximately 10 minutes from  the Hearing location and thus did not involve any substantial commute.  Dr. Rodgers offered with candor that he only increased his testimony fee in direct reply to the new regulations which allowed for such increase.  Moreover, and with acknowledgement of Dr. Rodgers' board certifications and credentials as a contributor to two casebooks on the use of the AMA Guides, the Board was concerned that the $3500.00 should be reserved for those cases where the case is complex, the testimony is lengthy, and the expert involved is from a "high-priced specialty", a term which is not defined in the Board's decision.

The Faulkner and Smith cases in tandem would seem to establish the proposition and that a $3500.00 fee for live testimony will not be regarded as an entitlement for routine medical witness appearance.  As I read these cases, it would appear that absent a compelling argument for the maximum fee award, a medical witness fee of $2500.00 will be the norm.  Factors which may impact favorably to command a higher payment would include:  the specialty of the expert, the time the expert is on the stand (beyond one hour), the complexity of the medical issues, if more than one petition is pending before the Board and possibly the location of the expert and the commute involved with making the appearance.

© Copyright 2009 Cassandra Roberts. Reprinted with permission.

 Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts