Opinion
C.A. NO. 99A-03-003-NAB.
Submitted: July 26, 1999.
Decided: August 26, 1999.
Appeal of a Decision of the Industrial Accident Board. Affirmed.
Raymond W. Cobb, Esquire, Saul, Ewing, Remick Saul, Wilmington, Delaware, for the Employer.
Thomas C. Crumplar, Esquire, and Vincent J.X. Hedrick, II, Esquire, for the Claimant.
ORDER
Having reviewed the parties' submissions, as well as the record below, the Court finds and concludes as follows:
1. Background. Claimant Phineas Yoder worked for Delmarva Warehouse (Delmarva or Employer) until August 10, 1993, when he was hit in the head by a 150-pound steel post. As a result, Claimant suffered multiple injuries, which have been the subject of three hearings by the Industrial Accident Board (Board). At the first hearing, the Board awarded Claimant a 15% permanent partial impairment rating to his cervical spine and all reasonable and necessary medical bills related to his work accident. At the second hearing, the Board awarded Claimant payment for prescriptions and over-the-counter medications that constituted reasonable and necessary treatment for the headaches he suffered since his industrial accident.
2. The third hearing, which pertained to Claimant's brain injuries, generated the instant appeal. Prior to the hearing, the Board excluded the testimony of Employer's medical expert, John Townsend, M.D., because of Employer's failure to comply with Board rules concerning pre-trial discovery. After the hearing, the Board awarded Claimant a 15% permanency rating for brain injuries and related medical expenses. Employer filed a timely appeal of the Board's decision to this Court. Briefing is completed, and the issues are ripe for decision.
3. Issues. Employer challenges the exclusion of Dr. Townsend's testimony as an abuse of the Board's discretion. Although not so stated, Employer's brief presents two challenges to the Board's decision. First, Employer argues that the Board abused its discretion in the manner in which it applied its procedural rules. Claimant argues in response that the Board is empowered to make its own rules and that the exclusion of Employer's medical evidence was a proper exercise of its discretion. Second, Employer argues that the Board erred both factually and legally in ruling that Employer had notice of the legal hearing regarding the exclusion of the medical evidence. Claimant argues that this ruling was correct, both factually and legally.
4. Standard of review. The function of this Court on review of a Board decision is to determine whether the Board's decision is supported by substantial evidence. Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. This Court does not weigh the evidence, determine questions of credibility or make factual findings. It merely determines if the evidence is adequate to support the Board's factual findings.
General Motors v. Freeman, Del. Supr., 164 A.2d 686 (1960).
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66-67 (1965).
5. Facts regarding the exclusion of Employer's medical evidence. On September 14, 1998, Claimant filed his petition to Determine Additional Compensation Due for brain injuries, and a hearing was scheduled for January 19, 1999. On November 13, 1998, Dr. Townsend examined Claimant at Employer's request. On December 11, 1998, Claimant filed its pre-trial memorandum outlining the proposed issues. Employer did not provide its portion of the memorandum. On December 18, 1998, Claimant served Employer with a request for production, which asked for all pertinent documents, including all medical reports. Pursuant to Board Rule 11, a response was due 15 days after service. On January 5, 1999, Claimant telephoned Employer to talk about both Dr. Townsend's report and the pre-trial memorandum, but apparently no agreement was reached as to production. On January 7, 1999, Claimant wrote to Employer renewing the request for production. Employer failed to respond.
6. On January 11, 1999, Claimant requested that the Board schedule a so-called legal hearing on the issue of the medical report and pre-trial memorandum. The Board's scheduling officer Left a message at the office of Employer's attorney, stating that a legal hearing would be held on Friday, January 15, 1999, at 12:45. Employer called the Board and left a message stating that he was scheduled for another hearing at 1:00 in Milford. He did not call back to determine if the legal hearing was rescheduled.
7. In fact, the hearing was rescheduled from 12:45 p.m. to 8:45 a.m. on January 15, 1999. Employer failed to appear. After hearing Claimant's recitation of the facts, the Board issued a written decision granting Claimant's motion. The Board found that Employer's duty to produce the report arose when Claimant filed its request for production on December 18, 1998, and that Employer failed to meet that duty. The Board concluded that Claimant was prejudiced by Employer's failure to provide either the medical report or the pretrial memorandum, as provided by board Rules 9 and 11.
8. At the hearing on the merits on January 19, 1999, Employer's attorney sought to reopen the issue of exclusion. After hearing argument from both parties and taking a recess to deliberate, the Board reiterated its prior conclusions that Employer had violated the Board rules regarding production and that Claimant would be prejudiced if Dr. Townsend were permitted to testify. The hearing proceeded without medical evidence from Employer.
9. Claimant's medical witness, Walter Ehrenfeuchter, D.O., a board-certified osteopath, stated his expert opinion that Claimant had suffered three permanent injuries to his brain: 15% permanent impairment to the complex, integrated cerebral functions, 15% for emotional disability or depression, and 15% for sleep and arousal disorders. The Board accepted Dr. Ehrenfeuchter's opinion on the complex cerebral functions and awarded a 15% permanency rating and related medical expenses. However, the Board rejected the claims for emotional disability and sleep disorder. In its written decision granting the permanency rating for the brain injuries, the Board repeated its rationale for excluding Employer's medical evidence.
10. Notice. Counsel for Employer argues in the Opening Brief that he had no notice of the legal hearing, and that if he had received notice, he would have advised the Board that he had a schedule conflict. However, this assertion flatly contradicts Counsel's own statements at the hearing on the merits, where he stated as follows:
See Opening Brief at 7.
I received a telephone call on Thursday from Lawrence [Melton] of the Department of Labor advising [me] that there would be a legal hearing at 12:45. That was a telephone message I received. Upon receiving that message, I made a return call to him, approximately 3:30 in the afternoon advising him that I was unavailable because I was scheduled to be at a hearing at 1:00 in Milford.
See Transcript of the Proceedings at 1-2.
11. Thus, Counsel argues in his brief that he received no notice, but argued before the Board that he received notice and attempted to reschedule. The Court finds this contradiction to be extremely troubling. By his own admission, Counsel was aware that the Board intended to conduct a legal hearing. Counsel also acknowledged that he did not call the Board back to find out if the legal hearing had been rescheduled. Claimant's counsel stated that Mr. Melton, the Board's scheduling officer, told his paralegal that the hearing was rescheduled for 8:45 to accommodate Employer's schedule. Mr. Melton was not present at the hearing to confirm or deny this assertion. Nevertheless, it is uncontested that Employer's counsel had notice that a legal hearing would be conducted on Friday, January 15, 1999.
12. The Court need look no further than Counsel's own statements at the hearing to find that the Board correctly concluded that Counsel had notice that a legal hearing would be conducted.
13. Board's authority to make and apply procedural rules. The General Assembly has granted the Board power to promulgate its own rules of procedure. Under 19 Del. C. § 2301A(i), the Board "may promulgate its own rules of procedure for the purpose of carrying out the provisions of the Act." Common sense dictates that if the Board can write its own rules, it must also have the discretion necessary to enforce them. This Court has so found in other cases.
Malinowski v. Ponns and Thomas, 1993 WL 189483 (Del.Super.) (citing Knox v. Georgia-Pacific Plywood Company, Del. Supr., 130 A.2d 347, 351 (1957)).
Keeler v. Metal Masters, Inc., Del. Super., C. A. No. 97A-09-004, Terry, J., (Mar. 27, 1998); Paclino v. Industrial Accident Board, Del. Super., C.A. No. 96M-08-003, Quillen, J. (Apr. 23, 1997).
14. In its opening brief, Employer asserts that Claimant did not request the medical report until January 4, 1999, and that, pursuant to Board Rule 11, Employer had until January 22, 1999 (three days after the hearing) to produce the report. The Court finds this to be a frivolous and disingenuous assertion that is clearly belied by the record. Claimant's request for production, dated December 18, 1998, specifically asks for, inter alia, "[a]ll materials received and or in the possession of, or control of Dr. Townsend and regarding Phineas Yoder including, but not limited to, any report, all his file, medical records, tests and or reports coming to or from Dr. Townsend, or to or from Employer's counsel." Even if Employer failed to read or comprehend this unambiguous language, he should have been aware of it after reading the Board's two decisions on the matter. The Court disapproves of the frivolous nature of this argument.
15. In addition to being frivolous, the argument fails to raise any issue that legitimately challenges the Board's ruling. Employer does not even address the Board's finding that Claimant's request for production triggered its duty to deliver the medical report as soon as it became available.
16. The record also shows that Employer had Dr. Townsend's report on January 4, 1999, but that Claimant's attorney did not receive it until the eve of the hearing on January 19, 1999. As this Court has previously observed, "[m]odern discovery seeks to encourage the production of all information relevant to a pending action unless clear privilege is shown." Sending a medical report to opposing counsel the night before a hearing is a clear violation of both the spirit and the letter of discovery law.
In re the Petition of Greenwood Trust Company, Del. Super., C.A. No. 98M-03-007, Quillen, J., (Mar. 3, 1999) (Mem. Op.) (citing Wolhar v. General Motors Corp., Del. Super., 712 A.2d 457, 463-64 n. 36 (1967)).
17. In this, case, the Board carefully reviewed the facts, not once but twice, and determined that Employer failed to comply with the rules. This Court agrees. Employer chose to ignore Claimant's request for production, the Board's 15-day rule and the fact that a legal hearing was scheduled for January 15, 1999. He made these choices at his own peril, and his client's as well. It has been said that "[a]buse of discretion occurs when the judgment exercised by the trier of fact is `manifestly unreasonable.'" In this case, the Board's judgment was anything but unreasonable.
Jones v. Spence Protective Agency, Del. Super., C.A. No. 89A-MY-11, Gebelein, J. (Oct. 26, 1990) (Mem. Op.) (citing Pitts v. White, Del. Super., 109 A.2d 786, 788 (1954)).
For all these reasons, the decision of the Industrial Accident Board awarding benefits to Claimant Phineas Yoder must be and hereby is Affirmed .
It Is So ORDERED .