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Alethea Davis-Moses v. Keystone Human Services, C.A No. N15A-10-013 AML (Del. Super. June 24, 2016)

Superior Court affirms Industrial Accident Board’s denial of Claimant’s DACD Petition seeking compensability of a cervical spine surgery and recurrence of total disability.

Claimant was injured in a work related motor vehicle accident on November 3, 2014.  Claimant filed two Petitions to Determine Additional Compensation Due in 2015 seeking recurrence of total disability benefits and compensability of a cervical spine surgery performed by Dr. Zaslavsky on May 11, 2015.  The Industrial Accident Board Hearing Officer issued a Decision denying Claimant’s Petitions finding that the cervical spine surgery was not causally related to the work accident and that Claimant failed to show a change in condition warranting a recurrence of total disability benefits.

Claimant appealed the Decision arguing that the Industrial Accident Board committed an error of law by allowing testimony at the Hearing about the severity of Claimant’s injuries in relation to the severity of the motor vehicle accident.  During the Hearing, Claimant’s counsel objected to testimony addressing damage to claimant’s vehicle at the time of the accident pursuant to Davis v. Maute, 770 A.2d 36 (Del. 2001).  In Davis, the Court held that “as a general rule, a party in a personal injury action may not directly argue that the seriousness of personal injuries from a car accident correlates to the extent of the damage to the cars, unless the party can produce competent expert testimony on the issue.” Id at *40. At the close of the Hearing, the Hearing Officer stated that claimant’s prior objection was sustained and that testimony would only be considered for credibility determinations in order to address inconsistent statements.  Claimant’s medical expert Dr. Zaslavsky’s testimony regarding Claimant’s symptoms post-accident was inconsistent Claimant’s own testimony.

The Superior Court determined that the Industrial Accident Board did not abuse its discretion in allowing limited testimony regarding the severity of the motor vehicle accident as the evidence presented was directly relevant to contradict testimony of Claimant’s medical expert who described the motor vehicle accident in more violent terms than the claimant testified to at the time of the Hearing.  Since Claimant’s medical expert had opened the door with his testimony addressing the severity of the accident in order to justify Claimants’ need for surgery, the Court concluded it was reasonable to allow Employer the opportunity to offer contradictory evidence regarding the severity of the accident or lack thereof.


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