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Salyer v. State of Delaware, IAB Hearing No. 1336020 (June 17, 2010)

Claimant filed a Petition to Determine Compensation Due seeking acknowledgement of injuries to his cervical, thoracic and lumbar spine and a contusion to his head, allegedly sustained during a work accident on March 25, 2009. The parties stipulated that Claimant previously sustained injuries to his neck and back in two motor vehicle accidents in 2000 and 2005. Employer did not dispute that the work accident occurred. Employer acknowledged, through the testimony of its medical expert, Dr. Ali Kalamchi, a minor contusion to Claimant's forehead and a strain injury to the cervical spine which exacerbated Claimant's pre-existing neck problems. However, Employer disputed any injury to the lumbar spine as a result of the work accident.

In support of his Petition, Claimant presented the deposition testimony of Dr. William Atkins. Dr. Atkins had treated Claimant since 2003. Employer objected to Dr. Atkins' deposition testimony on the ground that, despite multiple requests from Employer, Dr. Atkins failed to produce his entire medical file. Dr. Atkins produced his records in a piecemeal fashion; produced an additional 117 pages of records just minutes prior to his deposition; and Dr. Atkins' entire file had not even been produced at the time of the hearing. The Board overruled Employer's objection, holding that preclusion of Dr. Atkins' testimony would significantly prejudice the Claimant, even more so than Employer had already been prejudiced, by unfairly punishing Claimant for Dr. Atkins' failure to cooperate. However, the Board cautioned Dr. Atkins that such conduct would not be tolerated in the future. Dr. Atkins was placed on notice that his failure to timely produce records would result in stiff penalties, as the Board was growing weary of "such unnecessary and unprofessional tactics." The Board ultimately held that Claimant did not meet his burden of proving that the work accident caused an exacerbation of his pre-existing low back condition, noting Dr. Atkins' inadequate documentation of Claimant's injuries and treatment was one of its major concerns.

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