Opinion
C.A. No. 05A-10-005 (RBY).
Submitted: October 4, 2006.
Decided: December 13, 2006.
Upon Consideration of Appellant's Appeal from Decision of Industrial Accident Board
AFFIRMEDRaymond W. Cobb, Esq., Wilmington, Delaware, Attorney for Employer-Appellant.
Walt F. Schmittinger, Esq., Schmittinger Rodriguez, P.A., Dover, Delaware, Attorney for Employee Below-Appellee.
Papa John's ("Employer") appeals a September 29, 2005, decision of the Industrial Accident Board ("Board"). The Board granted Debbie Biddle's ("Claimant") Petition to Determine Additional Compensation Due. The Board awarded medical expenses requested in the amount of $369.79, and for ongoing treatment with Dr. Mack three times per year, as well as for the prescription of Topomax. In addition, the Board also awarded medical witness fees and attorney's fees. The Employer appeals the decision raising three issues. First, the Employer argues that the Board's award was based on an issue not properly before the Board and about which the Employer had no notice, which deprived it of its due process rights and violated the provisions of the Delaware Worker's Compensation Code. Secondly, the Employer argues that the Board exceeded its authority in awarding open-ended medical treatment to the Claimant. Finally, the Employer contends the Board erred as a matter of law and as a matter of fact by awarding multiple medical witness fees to Claimant. For the following reasons, however, I have concluded that the Board's decision should be affirmed .
Facts
The Claimant injured her head after slipping and falling on ice on January 11, 1999, while she was employed as the general manager at Papa John's. Papa John's acknowledged Claimant's injury and paid for Claimant's workers' compensation benefits. However, Papa John's argued that Claimant did not properly authenticate her medical bills submitted to the Board, therefore, the bills are not compensable. Papa John's also argued to the Board that it could not award the ongoing prospective treatment that Claimant requested. Drs. Sommers and Mack testified that the Claimant's symptoms were related to the industrial accident and that the treatment has been reasonable, necessary and related to the industrial accident. Dr. Mack also testified that Claimant will need to see her three to four times a year, and continue to take Topomax on an indefinite basis as a result of her condition. Papa John's did not present any medical testimony.
The Board found the doctors and the Claimant to be credible and accepted their testimonies. The Board found that the medical bills incurred more than thirty days before the hearing in the amount of $369.79 were reasonable, necessary and related to the industrial injury and awarded that amount to the Claimant. It also concluded that Claimant will need continued treatment with Dr. Mack three times a year and a prescription for Topomax. The Board concluded that this ongoing treatment was reasonable, necessary and related to Claimant's industrial injury. Finally, the Board awarded reasonable attorney's fees and medical witness fees to the Claimant.
Standard of Review
The scope of review for appeal of a board decision is limited to examining the record for errors of law and determining whether substantial evidence is present on the record to support the Board's findings of fact and conclusions of law. "Substantial evidence" is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. On appeal, the court does not "weigh the evidence, determine questions of credibility, or make its own factual findings." The court is simply reviewing the case to determine if the evidence is legally adequate to support the agency's factual findings. The court must give "due account of the experience and specialized competence of the Board and of the purposes of our workers' compensation law." When reviewing the Board's findings the reviewing court should accept those findings, even if acting independently, the reviewing court would reach contrary conclusions. Absent an error of law, the standard of review is abuse of discretion. An abuse of discretion arises only where the Board's decision has "exceeded the bounds of reason in view of the circumstances." Only where no satisfactory proof exists to support the factual finding of the Board may the Superior Court overturn it.
Robinson v. Metal Masters, Inc., 2000 Del. Super. LEXIS 264; Histed v. E.I. DuPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981); Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).
Johnson, 213 A.2d at 66.
ILC of Dover, Inc. V. Kelley, 1999 Del. Super. LEXIS 573, at *3.
Histed, 621 A.2d at 342.
H H Poultry v. Whaley, 408 A.2d 289, 291 (Del. 1979).
Digiacomo v. Bd. of Publ. Educ., 507 A.2d 542, 546 (Del. 1986).
Floundiotis v. State, 726 A.2d 1196, 1202 (Del. 1999); Lilly v. State, 649 A.2d 1055, 1059 (Del. 1994).
Johnson, 213 A.2d at 64.
Discussion
The Employer argues that the Board violated its due process rights by deciding matters on which the Employer had no notice. Employer argues that it did not have notice that the Claimant would be seeking an award for the prescription Topomax or that she would be seeking an order for prospective medical treatment from Dr. Mack. After hearing the testimony of the physicians and weighing the evidence, the Board decided that ongoing treatment and Topomax were reasonable, necessary and related to Claimant's industrial injury. Both the petition and the pre-trial memorandum indicate that the Claimant will be seeking compensation for "meds." The Employer was on notice that an award for medication would be sought in this case. The petition also states that Claimant will be seeking medical bills for Dr. Mack. During Dr. Mack's deposition, she states that Claimant should continue treatment with her. The depositions were taken before the hearing and the Employer was on notice that future treatment was at issue. The Board's finding that the Employer had notice of the request for Topomax and for continuing medical treatment is reasonable and is not a violation of Employer's procedural due process rights.The Board also awarded Claimant three follow-up examinations a year and the prescription Topomax on an ongoing basis. Employer argues that the Board erred as a matter of law and as a matter of fact by awarding open-ended medical treatment to the Claimant. Employer cites Brown v. Hugh George, Co. to support its argument. However, in that case the Superior Court of Delaware did not find that the open-ended award for medical treatment by a physician was an error of law or fact The court found only that the Board may not change its award absent the employee seeking an increase or renewal of benefits or the Employer seeking a decrease or termination of benefits. That is, the Brown court does not say that any such award is an error of law, only that the Board may not modify it, absent some action taken by the employee or Employer. If and when the need for the appointments with Dr. Mack ceases, the Employer permitted to petition the Board to terminate the benefits awarded.
1997 Del. Super. LEXIS 559.
Id. at *7.
Additionally, 19 Del. C. § 2322 (c) states that the Board, upon petition, may award additional medical services to a Claimant. Therefore, the Board has not erred as a matter of law or fact in awarding the open-ended benefits.
Finally, the Employer argues that the Board erred as a matter of law in awarding a medical witness fee for the deposition of Dr. Sommers. Employer argues that because the deposition of Dr. Sommers was taken six days before the Claimant's petition was filed, it was not taken in anticipation of the subsequent petition. The Board decided at the hearing that it wanted to hear the testimony of Dr. Sommers over the objection of Employer's counsel. After hearing the testimony of Dr. Sommers, the Board awarded the fees for his deposition. The Board decided that the testimony was relevant, and not merely duplicative of Dr. Mack's testimony. It is within the Board's discretion to determine that the testimony was relevant and to decide that fees should be awarded. The Board did not err as a matter of law or fact when it awarded the medical witness fees for Dr. Sommers.
The decision of the Board is affirmed .