Vicki Fountain v. McDonald’s, (C.A. No. S15A-07-005 MJB - Decided June 30, 2016)

Superior Court denies appeal. Claimant’s 2014 surgery, while necessary and reasonable, was not causally related to the 2001 work injury.

The claimant raised three issues in her appeal: (1) collateral estoppel and res judicata precluded the Board from relying on Dr. Sopa’s—employer’s medical expert—prior medical opinion; (2) the Board erred in permitting the claimant to present expert medical testimony and a defense to the petition; and (3) the Board’s decision was not supported by substantial evidence. On the doctrines of collateral estoppel and res judicata issue, the court found that neither applied. While the testimony of Dr. Stephens—claimant’s medical expert—referenced the testimony of Dr. Sopa from years ago, nowhere did Dr. Stephens indicate that he relied on Sopa’s opinions. Dr. Stephens came to an independent opinion after evaluating the claimant and reviewing extensive medical records. The court commented that the issue in the current petition was different from that in the prior petition, and therefore, the Board’s finding was neither inconsistent with nor contradictory of the 2006 decision. As for the argument that the Board erred in permitting the employer to present expert medical testimony in defense of the petition, the evidence showed that the employer’s counsel was late in producing Dr. Stephens’ expert report and submitting a pre-trial memorandum. The court and the Board concluded there was no violation of Board Rule 9 in the production of the expert report, this was not a claim for permanent impairment. The court agreed that the real question was whether there was any unfair surprise to the claimant and concluded that there was no unfair surprise to the claimant since the causation defense was a common one in this type of case and claimant’s counsel had vigorously cross-examined Dr. Stephens. As to the final argument that the Board’s decision was not supported by substantial evidence, the court concluded that Dr. Stephens had sufficient information on which to base his opinion. Even though there were some medical records he had not reviewed, he evaluated those that were critical to the issue before the Board, and his opinion was supported by substantial evidence.

 

Case Law Alerts, 4th Quarter, October 2016. Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2016 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.