Request for reimbursement of a medical expert witness fee properly denied because counsel had incurred an unnecessary expense by allowing the deposition to take place despite having already received a formal settlement offer.

The issue before the Delaware Superior Court was whether the Board erred in denying the claimant’s request for reimbursement of his medical expert’s witness fee. On appeal, the court held that the Board correctly identified the issue and that the decision denying the request for reimbursement of the expert fee was free from legal error and supported by substantial evidence. The court reasoned that the claimant’s counsel had the formal settlement offer in hand weeks before the deposition, yet failed to communicate it to the claimant due to a language barrier. According to the court, counsel for the claimant could have reached out to the employer’s counsel and acknowledged receipt of the offer and requested additional time to respond. Instead, he chose to take the deposition of the medical expert when there was clearly no need to do so given the fact that the employer had acknowledged the injury as compensable. The court commented that counsel for the claimant had received the employer’s offer to accept the claim two weeks prior to the scheduled deposition. Therefore, by allowing the deposition to go forward, counsel had clearly incurred an unnecessary expense. As such, the Board did not err in finding that the employer had no obligation to pay such an unnecessary medical witness fee.

^{Case Law Alerts, 4th Quarter, October 2017}

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