Benjamin K. Durstein

On July 19, 2017, the claimant injured his right shoulder, requiring surgery, while working for the employer. After the right shoulder surgery, the claimant began to experience pain in his left shoulder, which he believed was caused by overuse as he was unable to use the right arm normally while he recovered from surgery. The employer denied the left shoulder problem was causally related to the work accident. 

The case went before the Industrial Accident Board, which denied that the left shoulder injury was causally related to the work accident, reasoning there were inconsistencies between the medical records and the claimant’s testimony, which undermined his credibility. Additionally, the Board concluded that the opinions of the employer’s medical expert, Dr. Gelman, were more credible than the claimant’s expert. During the hearing, it was revealed that the claimant told his treating surgeon the pain started far earlier than what was documented in the medical records. 

The Board’s decision was appealed because the claimant took issue with the way the Board came about some of the information it relied upon to find him not credible. Specifically, on appeal, the claimant’s attorney requested a reversal of the Board’s decision because the employer’s attorney had asked questions of the claimant during the hearing with reference to medical records and then failed to produce the documents. The claimant argued the questions were more akin to unsupported statements made by the employer’s attorney and did not afford the claimant an opportunity to confirm the accuracy of the questions. The argument was that the questions and resultant testimony violated Delaware Rules of Evidence 612 and 613, which relate to what documents need to be shown to a witness or attorney upon request. The employer argued there was no objection from claimant’s counsel during the hearing; therefore, the argument was waived for appeal. Moreover, even if some of the questioning was precluded, there was other substantial evidence in the record, including the expert credibility determination to support the decision.

The Superior Court agreed that attorney statements are not testimony and the information the Board heard in the questions was likely not admissible in Superior Court. However, Board Rule 16(B) expressly permits the Board to disregard customary rules of evidence so long as it does not amount to an abuse of discretion. There was no abuse of discretion in this case, and there was competent testimony from the employer’s expert witness to support the decision to deny the claim. The appeal was denied. 

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