Limit on expert witness fees does not apply to defense medical experts.

The claimant argued that the employer’s expert’s fee of $5,000 was too high and violated the Workers’ Compensation Act as well as the healthcare practice guidelines. Regulation 19 Del. Code Section 1341 subsection 4.16.1.2 provides that “testimony by a physician for non-video deposition shall not exceed $2,000, for video deposition $500 additional.” The employer argued that this fee included not only the doctor’s expert testimony but also his charges for reviewing records and correspondence, and a pre-deposition conference, even though all of these charges were submitted on one bill.

The Board found in favor of the employer and refused to impose a fine. The Board agreed with the employer’s argument that the regulation putting a cap on expert fees is meant to limit the amount that an employer can be required to pay for a claimant’s medical witness fees. It is not meant to limit an employer who chooses to pay more for its defense medical expert testimony. In addition, the Board accepted the testimony that the actual deposition fee was less than $2,000.00 as the remaining charges were for the doctor’s time spent doing other expert activities aside from actual testimony. 

_{Case Law Alerts, 4^th Quarter, October 2018}

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