Benjamin K. Durstein

Ms. Trincia filed a Petition to Determine Compensation Due that alleged she injured her cervical spine and left shoulder in a work accident on September 23, 2020. The claimant’s primary care physician, Dr. Ivins, did not produce medical records in response to a subpoena request by the employer until four days before the hearing, which was after the claimant’s medical expert had testified by deposition. The employer immediately produced the records to the claimant. The next day, the employer’s medical expert testified, including about Dr. Ivins’ records. The claimant filed a motion to strike portions of the employer’s expert’s testimony that referenced these records or, alternatively, to continue the hearing and afford the claimant’s expert to the opportunity to review the records and offer additional testimony.

The Industrial Accident Board denied the claimant’s motion and held that the employer reasonably obtained and timely produced the records. It was not the employer’s fault that the claimant did not have the records. Moreover, the claimant could not be surprised by her own medical records. The IAB conducted the hearing on the claimant’s petition and concluded that she was not credible and failed to meet her evidentiary burden. The Board emphasized that the claimant continued to work her normal hours for two weeks after the accident, never reported the accident during that time, and requested to be placed off the work schedule because she did not feel well, not because of the work injury. Further, the claimant’s initial medical records after the accident did not document a work accident. They were subsequently changed by undated notes from the providers without explanation.

On appeal, the claimant contended that neither party was at fault for the delay in production of Dr. Ivins’ medical records and it was unfair and prejudicial to the claimant to allow the employer’s expert to review and testify regarding the records without affording the claimant’s expert the same opportunity. The claimant was not surprised that the records existed, but she was surprised by the contents of those records. For those reasons, the claimant argued that the Board’s ruling constituted an abuse of discretion.

The Delaware Superior Court confirmed that the production of the records was a violation of the rule that requires production of pertinent documents 30 days prior to a hearing and that the records were not obtained surreptitiously. The claimant should have been aware of her own medical records. It was up to the claimant, not the employer, to make sure she has the documents necessary for her expert and her case. Additionally, the Board explained its reasons why it did not find the claimant to be credible and denied the petition. The evidentiary ruling was not an abuse of discretion and there was substantial evidence in the record to support the Board’s conclusions. The Board’s decision was affirmed. 

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