IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR SUSSEX COUNTY
) C.A. No. 08A-08-003-RFS
Upon Appellants’ Appeal of the Industrial Accident Board. Affirmed.
Submitted:September 2, 2008
Decided:December 30, 2008
Walt F. Schmittinger, Esquire, and Kristi N. Vitola, Esquire, Schmittinger &
Rodriguez, P.A., Dover, DE, Attorneys for Appellant.
David G. Culley, Esquire, and Leroy A. Tice, Esquire, Tybout Redfearn & Pell,
Wilmington, DE, Attorneys for Appellee.
This is an appeal from the November 21, 2007 decision of the Industrial Accident
Board (hereinafter “Board”), granting Joan West (hereinafter “Claimant”) an award of a
medical witness fee for Dr. Quinn, but denying an award of a medical witness fee for Dr.
Volatile. Claimant now appeals, in part, the decision of the Board, seeking to reverse the
denial of a medical witness fee for Dr. Volatile. For the reasons set forth below, the
Board’s decision is upheld.
STATEMENT OF FACTS
The underlying facts of this matter were fully stated in this Court’s March 31,
2006 and August 29, 2007 decisions involving the same parties. See West v. Wal-Mart,
Inc., 2006 WL 1148759 (Del. Super. 2006); 2007 WL 2446810 (Del. Super. 2007). The
Court’s factual recitation is repeated here for completeness.
Claimant was injured in a compensable work-related accident in March 2001. Her
employer was Wal-Mart, Inc. (hereinafter “Walmart”). Claimant suffered a herniated disc
and received workers compensation benefits. On September 28, 2004, Claimant filed a
Petition to Determine Additional Compensation Due against Walmart, asking for partial
disability benefits and unpaid medical expenses relating back to her injury.
Claimant underwent lumbar fusion surgery on February 4, 2002. Eight months
later, in October of 2002, a bone scan indicated that the fusion may have failed. The
recommendation to the Claimant was to undergo further surgery in 2003. However,
Claimant failed to do so. At some point around February of 2003, Claimant had a stroke. 1
In April of 2003, she had an appointment with Doctor Edward Quinn, her treating
physician. He noted that at this time, Claimant had recovered from her stroke for the most
part, was ambulatory with the help of a cane and neurologically intact. The x-rays from
that appointment showed that the fusion appeared to have solidified. At this point, Dr
Quinn released Claimant to light duty work with back precautions. The precautions
included no prolonged standing, walking, sitting, stooping or bending and no running,
jumping or twisting. Dr. Quinn did not put any restrictions on the number of hours
Claimant could work when he released her to work in April of 2003. However, Claimant
did not return to work in April 2003, nor did she return in the months immediately
Claimant did not actually return to work until March 2004. In the eleven months
between her release and her return to work, Claimant continued to receive worker's
compensation benefits from Wal-Mart. When these benefits were terminated by WalMart, Claimant then returned to work. At this point, Claimant's treating physician limited
There is apparently some discrepancy as to when the stroke occurred. Claimant states that the stroke
occurred on February 14, 2003. Tr. 34-36. The medical records introduced in the case pertaining to the
stroke are from Dr. Quinn's transcribed notes, from an April 2003 appointment, which state that the stroke
occurred on October 14, 2003. Both sides acknowledge that this must be an error. Notwithstanding the
discrepancy, all sides seem to agree that Claimant had “recovered from the stroke, for the most part” by the
time of the April 2003 appointment, as is stated by Claimant's attorney, referencing his conversation with
Claimant's treating physician. Tr. 16, quoting Dr. Quinn Deposition at 15.
the number of hours that Claimant could work for the first two months of her return based
on, in his words, “her deconditioned status only.”
Claimant had an open ended benefits agreement with Wal-Mart relating to this
compensable work accident which was finally terminated by Wal-Mart effective March
In March 2004, Claimant returned to Dr. Quinn and was reexamined. The
objective physical examination was essentially the same as it had been eleven months
beforehand. However, the major change was subjective. In March 2004, Claimant
reported considerable improvement in her condition from eleven months before, and told
Dr. Quinn that she was ready to go back to work. At this point Dr. Quinn released her to
return to work on a progressive basis, to consist of four hours for the first month, six
hours for the second month, and full time after eight weeks. His concern was that
Claimant was deconditioned from having been out of work for so long, and that going
from zero to eight hours would be difficult for her. 2
On February 14, 2005, the Board conducted an evidentiary hearing on Claimant's
Petition to Determine Additional Compensation Due. Claimant was requesting, at that
time, payment of over $1,200.00 in medical bills and a period of partial disability from
March 9, 2004 until some reasonable time period thereafter. Testifying on behalf of
During Dr. Quinn's deposition the following exchange took place:
Q: [Save] for her deconditioned state, there was no medical reason as a result of her work injury or
the sequelae associated with the surgery that she couldn't work on a full-time basis?
A: It was her deconditioned status only.
Claimant, by deposition, were Dr. Thomas Volatile and Dr. Edward Quinn. Dr. Volatile,
an orthopedic surgeon, largely deferred to and agreed with Dr. Quinn on relevant
recommendations and findings. In fact, Dr. Volatile only saw the Claimant two times and
stated that he was unaware that her injuries were work-related until just prior to his
The Board's February 28, 2005 decision denied the Claimant's Petition. In the
decision, Claimant's credibility was called into question. Also, the Board concluded that
Claimant could have returned to work in April of 2003 and simply chose not to do so. In
the Board's words, Claimant “offer[ed] no explanation as to why she failed to obey the
doctor's instructions to return to work except to say that Dr. Quinn never informed her
that she could work.” Ex. B of Opening Br. of Claimant Below-Appellant at 5.
Furthermore, the Board denied Claimant the right to recover any of the roughly $1,200.00
allegedly owed for medical expenses. The Board stated that “multiple invoices were
submitted but the Board [was] unable to discern what treatment was provided for what
disorder by what provider and for what reason.” Ex. B of Opening Br. of Claimant
Below-Appellant at 6. It was added that the “Board is certainly not tasked nor inclined to
page through the invoices and figure this out.” Id.
Claimant appealed the Board's February 28, 2005 decision to the Superior Court
on December 30, 2005. The Court's March 31, 2006 opinion reversed and remanded the
matter back to the Board. It was found that the Board had neglected its function by not
adequately addressing the medical bills submitted. Additionally, the Board was instructed
to consider the case law of Gilliard-Belfast v. Wendy's, 754 A.2d 251 (Del.2000) and
Mackert v. Grotto's Pizza, IAB Hearing No. 1231323 (May 27, 2004) with regard to the
issue of partial disability benefits.
Upon remand, the parties chose not to present additional evidence or argument to
the Board. In its second opinion, dated September 7, 2006, the Board acknowledged that
documentation had been produced as to the medical expenses incurred. Consequently, the
Board found in favor of Claimant for $1,233.16 in medical expenses.
On the matter of temporary partial disability benefits, the Board found the case
sub judice to be distinguishable from the two cases cited by the Superior Court. The
Board reasoned that in Gilliard-Belfast the Court had found that a claimant could rely on
the advice of a treating physician regarding the inability to work until the Board resolves
the conflict. Ex. A of Opening Br. of Claimant Below-Appellant at 2. In the present
matter, the Board concluded that “Claimant was released to work by her treating
physician, so she was not placed in the ‘untenable position’ of ignoring her treating
physician's instructions.” Id.
Similarly, the Board found the present case to be distinguishable from Mackert,
which applied the Gilliard-Belfast principles. The Board stated that “[i]n Mackert, the
claimant was released to work part-time by her treating physician from the beginning;
whereas in the case at hand, Claimant's treating physician released her to work full-time,
she ignored the release for eleven months and did not work, and then sought another
work note for part-time work that gradually increased to full-time work.” Ex. A of
Opening Br. of Claimant Below-Appellant at 2. Since Claimant caused the increased
work restrictions by ignoring her doctor's instructions, the Board concluded that WalMart should not be held responsible for the increased wage loss. Id.
The Board's second decision was appealed to this Court. Appeal was, however,
limited to the Board's denial of temporary partial disability benefits, and its failure to
award medical witness fees and attorney's fees. On August 29, 2007, this Court affirmed
the Board’s denial of partial disability benefits, but reversed and remanded on the issue of
attorney’s fees and reasonable medical witness fees. The parties have made no argument
regarding attorney’s fees since then, so this Court will assume that issue has been
Upon remand, the Board awarded Claimant fees for Dr. Quinn, but not for Dr.
Volatile on November 7, 2007. The Board found that the two witnesses were in the same
practice group and that Dr. Volatile only summarized Dr. Quinn’s records and deferred to
his opinion. The Board ruled that Dr. Volatile’s testimony was unreasonably cumulative
and redundant and did not order compensation for his testimony.
Following this ruling, Claimant filed a Motion for Reargument, arguing that since
Dr. Quinn never submitted a bill for his testimony, the fee for Dr. Volatile should be
awarded since Walmart would still only have to pay one medical witness fee. The Board
ruled on November 21, 2007 that Dr. Quinn’s bill was irrelevant to the issue of Dr.
Volatile’s fee and denied the motion.
The Board’s decision regarding Dr. Volatile’s fee has been appealed to this Court.
Appeal is limited only to that issue.
STANDARD OF REVIEW
The review of an Industrial Accident Board’s decision is limited to an
examination of the record for errors of law, and a determination of whether substantial
evidence exists to support the Board’s findings of fact and conclusions of law. Histed v.
E. I. Du Pont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993); Willis v. Plastic
Materials, 2003 WL 164292 (Del. Super. 2003) at *1. Substantial evidence equates to
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981). It is more than a scintilla
but less than a preponderance of the evidence. Breeding v. Contractors-One-Inc., 549
A.2d 1102, 1104 (Del. 1988). In conducting its review, this Court is not to engage in the
practice of judging witness credibility or weighing the evidence proffered; those
functions are reserved exclusively for the Board. Id. at 1106.
Questions of law are reviewed de novo. McDonalds v. Fountain, 2007 WL
1806163 (Del. Super. 2007) at *1. Absent error of law, the standard of review for a
Board’s decision is abuse of discretion. Opportunity Center, Inc. v. Jamison, 2007 WL
3262211 (Del. Supr. 2007) at *2. The Board has abused its discretion only when its
decision has “exceeded the bounds of reason in view of the circumstances.” Willis at *1.
19 Del. C. § 2322(e) provides:
The fees of medical witnesses testifying at hearings before the Industrial
Accident Board in behalf of an injured employee shall be taxed as a cost to
the employer or the employer's insurance carrier in the event the injured
employee receives an award.
Much like an award of reasonable attorney's fees, the award of reasonable medical
witness fees is mandatory and must be awarded by the Board to a successful claimant.
Jepsen, 2005 WL 578801 (Del. Super. 2005). The Board also has broad discretion in
determining the reasonableness of medical witness fees and may decline to award certain
witness fees should the Board determine that the number of witnesses called was
unreasonable and that the testimony provided by such witnesses was redundant or
cumulative because of the testimony of other medical witnesses. Brandywine School
District v. Hoskins, 492 A.2d 1247, 1252 (Del. 1985); Nanticoke Homes v. Miller, 2003
WL 22232809 (Del. Super. 2003) at *5.
Claimant did receive an “award” within the bounds of 19 Del. C. § 2322(e) when
the Boarded awarded $1,233.16 in medical expenses. See Christiana Hilton v. Martinez,
752 A.2d 1167 (Del.2000) (finding claimant had received award when Board ordered the
payment of medical bills). The Board also found again that Dr. Volatile summarized Dr.
Quinn's treatment records and deferred to Dr. Quinn regarding the total disability period.
The Board cited the proper standard from Miller; there was no error of law here. The
Board’s determinations of fact are to be upheld, provided there is substantial evidence on
which it could reasonably make its decision. The only question then is whether the Board
abused its discretion in finding that Dr. Volatile’s testimony was redundant and that
calling two witnesses was unreasonable. This Court finds that it did not.
Dr. Quinn was Claimant’s regular physician and treated her for her injuries
related to the incident at work. Dr. Quinn’s partner, Dr. Volatile, substituted for him on
two occasions in October of 2002. Those were his only connections to the case. His
testimony mostly consisted of reading Dr. Quinn’s records. He also testified that he had
no opinion of his own regarding her ability to return to work. This evidence is substantial
enough for the Board to determine that his testimony was cumulative and redundant.
The next issue is whether Claimant called an unreasonable number of witnesses.
The law on this issue does not set a particular number as being reasonable or
unreasonable; it allows the Board to examine it on a case by case basis. Claimant has
argued that two witnesses could not be an unreasonable number, relying partly on the
ruling in Brandywine that two identical testimonies from a physician was not
unreasonable. 492 A.2d 1247. The issue presented in that case is completely different
from the one in this case; there the claimant felt that his case would be strengthened by
having his witness testify at trial instead of simply using his deposition testimony. Id.
Claimant also relies on the finding in Keeler v. Conco Tellus, Inc., 1996 WL 658805
(Del. Super. 1996), that the three witnesses called in that case were reasonable. That case
differed in that the third witness’s testimony was not redundant, but was simply found by
the Board to be unreliable. Id. at *7. Keeler did not hold that three witnesses would
always be a reasonable number; it remains within the Board’s discretion to decide what
number is reasonable for each case. It was clear that Dr. Volatile’s testimony could not
have offered anything substantially beyond Dr. Quinn’s opinion. The Board did not
abuse its discretion in finding that the testimony of an additional witness constituted an
unreasonable number for the purposes of this particular case.
Claimant’s Motion for Reargument was properly denied by the Board. The fact
that Dr. Quinn did not submit a bill has no relevance to Dr. Volatile’s testimony. The
Board’s ruling was that Dr. Quinn’s testimony was reasonable and compensable, but that
Dr. Volatile’s was not. Claimant did not cite any law which suggests that determination
can be transferred from one witness to another depending on the bills they later submit.
The Board made no error of law and committed no abuse of discretion in denying
Considering the foregoing, the decision of the Industrial Accident Board is
IT IS SO ORDERED