Opinion
C.A. No. N10A-09-011 WCC.
Submitted: January 26, 2011.
Decided: April 29, 2011.
Appeal from Industrial Accident Board. REVERSED.
Michael B. Galbraith, Esquire; Weik, Nitsche Dougherty, Wilmington, DE, Attorney for Claimant-Below, Appellant.
Linda Wilson, Esquire; Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, DE, Attorney for Employer-Below, Appellee.
OPINION
This appeal by Sandra D. Nichols ("the Appellant") from the decision of the Industrial Accident Board ("Board") presents the question of whether a successful claimant is entitled to receive reimbursement for the fees of all medical witnesses who appeared before the Board on the claimant's behalf, even if the witness's testimony did not form the basis for the award. For the reasons set forth below in this opinion, the Court finds that such a claimant is entitled to reimbursement and the decision of the Board is therefore reversed.
Factual and Procedural History
On September 30, 2007, the Appellant suffered a compensable injury to her lower back while working for HCR Manor Care ("the Employer"). She received compensation benefits for her injury. On February 18, 2009, the Appellant filed a Petition to Determine Additional Compensation due, seeking compensation for a 17.3% permanent impairment to her lower back. The appellant then filed a Petition to Determine Additional Compensation Due on March 23, 2009, seeking authorization to have surgery performed on her lower spine.
The Appellant's petitions were consolidated, and a hearing on both petitions took place before the Board on August 5, 2009. At the hearing, the Appellant presented deposition testimony from Dr. Peter Bandera, a physician who practices in the area of physical medicine and rehabilitation, with regard to her petition for permanent impairment. The Appellant also presented deposition testimony from Dr. Hagop L. DerKrikorian, a neurosurgeon, with regard to the necessity of the proposed surgery. Dr. Ali Kalamachi, an orthopedic surgeon, testified at the hearing on behalf of the Employer.
The Board issued its decision on January 25, 2010. The Board determined that the proposed surgery was appropriate but concluded that it was premature to rate the Appellant's back injury as permanent impairment in light of the pending surgery. In its decision, the Board also awarded "[m]edical witness fees for testimony on behalf of [the Appellant]" pursuant to 19 Del. C. § 2322(e). Neither party appealed the Board's decision.
Nichols v. HCR Manor Care, Hearing No. 1315032 at 13.
The Appellant subsequently requested reimbursement of her medical witness fees for the testimony of Dr. DerKrikorian and Dr. Bandera in accordance with the Board's decision. The Employer reimbursed the Appellant for Dr. DerKrikorian's witness fee but refused to reimburse her for Dr. Bandera's witness fee because she did not receive an award for a permanent impairment.
The Appellant made a Huffman demand, and a hearing took place before the Board on September 9, 2010 on the issue of whether Dr. Bandera's witness fee was included in the Board's January 25, 2010 decision. The Board determined after the hearing that Dr. Bandera's witness fee was not included in the January 25, 2010 decision because the petition that was the basis for his testimony was denied.
The Appellant timely filed an appeal from the Board's September 9, 2010 decision on September 13, 2010. The Employer timely submitted an Answering Brief and the Appellee filed a Reply Brief.
Standard of Review
This Court's review of decisions of the Industrial Accident Board is limited to determining whether the Board's findings and conclusions are supported by substantial evidence and free from legal error. Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The Court does not sit as trier of fact with authority to weigh evidence, determine questions of credibility, nor make its own factual findings and conclusions. Therefore, if substantial evidence exists and there is no error of law, the Court must affirm the Board's decision. Questions of law, however, are reviewed de novo.
Baker v. Allen Family Foods, 1997 WL 818015 (Del. Super. Dec. 2, 1997).
DuPont Hosp. for Children v. Pattie, 2001 WL 588964 (Del. Super. May 24, 2001).
Stevens v. State, 802 A.2d 939, 944 (Del. Super. 2002).
Id.
Discussion
Before the Court is the narrow question of whether the Board erred by deciding not to award the Appellant medical witness fees for one of her witnesses. The Court finds that the Board did err and therefore reverses the September 9, 2010 order denying reimbursement for Dr. Bandera's witness fees.Under 19 Del. C. § 2322(e), "[T]he fees of medical witnesses testifying at hearings before the Industrial Accident Board on behalf of an insured employee shall be taxed as a cost to the employer [. . .] in the event the injured employee receives an award." Reimbursement of medical witness fees for a successful claimant is generally mandatory. However, in certain limited circumstances, this Court has held that the Board has discretion to deny reimbursement of medical witness fees where "an unreasonable number of medical witnesses are called" or the witness presents testimony that is "unreasonably cumulative or redundant."
19 Del. C. § 2322(e) (emphasis added).
See, e.g., Brandywine Sch. Dist. v. Hoskins, 492 A.2d 1247, 1252 (Del. 1985).
Id.
It is well-settled in Delaware that "[a] medical witness' testimony need not be the basis of an award in order to assess fees against the employer under 19 Del. C. § 2322(e), as long as the claimant procures an award." The Court reasoned that policy considerations mandate awarding medical witness fees even where the witness's testimony is not the basis of an award because to do otherwise "would result in a claimant being forced to make an important decision as to which medical witnesses he should rely upon" in advance of the hearing.
Wade v. Chrysler Corp., 1986 WL 2830 (Del. Super. Mar. 5, 1980).
Hudson v. E.I. DuPont de Nemours Co., 245 A.2d 805, 812 (Del. Super. 1968).
Indeed, this Court has repeatedly held, in numerous decisions, that a claimant was entitled to an award of medical witness fees even where the claimant presented both successful and unsuccessful claims to the Board. For example, the Appellant here relies principally upon Baker v. Allen Family Foods, in which the Board denied a petition for an alleged injury to the claimant's coccyx but granted a petition for permanent impairment for loss of balance. The Board denied medical witness fees associated with the physician who testified regarding the claimant's alleged coccyx injury. The Court reversed the denial of fees, noting that the purposes of the Workers' Compensation Act included "provid[ing] payment of benefits without regard to fault" and "reliev[ing] the parties of the burden of civil litigation." More recently, this Court applied similar reasoning in Williams v. Kraft Foods, in which the claimant sought compensation for outstanding medical expenses related to her work-related injury and additional compensation for permanent impairment. The Board awarded the claimant's outstanding medical fees but denied the request for a permanency award and awarded medical witness fees associated with the outstanding medical expenses only. This Court reversed the Board's decision, noting that the purpose of the Worker's Compensation Act is "`to ensure that employees will not suffer excessive charges for services rendered in obtaining the compensation.'"
1997 WL 818015.
Id. at *5 (citing Champlain Cable Corp. v. Employers Mut. Liab. Ins. of Wisconsin, 479 A.2d 835 (Del. 1984)).
2005 WL 280457 (Del. Super. Jan. 28, 2005).
Williams, 2005 WL 280457 at *3.
The Employer argues that the Hudson line of cases is inapplicable to the present case because the petitions presented were separate and distinct. This argument is without merit. The Employer may be correct that the wiser choice for the Appellant in this case might have been to withdraw the petition for permanent impairment pending the outcome of the petition for the surgery. However, the Appellant could not have known in advance whether her petition for back surgery would be granted, and in the event that the Board denied that petition, having to re-file a petition for permanent impairment would delay the petitioner's receiving reasonable compensation for her injuries, as well as being a waste of time and resources by requiring the Appellant to file another petition and to participate in a separate hearing at a later time. The law is clear: the Board may not deny an award of medical witness fees to a claimant who receives an award solely for the reason that the witness's testimony did not form the basis for the award granted.
Williams, 2005 WL 280457 at *3; see also Baker, 1997 WL 818015 at *4.
Equally important, although the petitions were filed thirty-four days apart, the parties and the Board considered them as if they were a single petition and a single ruling was issued by the Board. To argue now they are separate and distinct is so inconsistent with what has occurred before the Board that it simply appears to be the Employer's inappropriate reaction to the Board's decision to award further compensation to the employee. The Court clearly appreciates the position of the Employer and understands why it may feel the present law to be unfair. However, if employers feel that the prior decisions of the Court are unjust, they should seek a legislative solution to the problem and not continue to pursue litigation over the same issue.
The Appellant is entitled to receive reimbursement for Dr. Bandera's medical witness fees under 19 Del. C. § 2322(e). Accordingly, the Board's decision is hereby REVERSED.
IT IS SO ORDERED.