Superior Court confirms IAB’s termination of total disability benefits and rejects argument that IAB “precedent” requires a DME doctor to examine a claimant following a subsequent, intervening event in order to offer an opinion on work capabilities.

Mr. Hooten injured his neck in a compensable work accident in December 2020. In late 2021, the employer filed a petition to terminate ongoing total disability benefits based on the opinions of Dr. Gelman. While the petition was pending, the claimant was involved in a non-work-related motor vehicle accident in February 2022. After a hearing in March 2022, the Industrial Accident Board (IAB) concluded that Mr. Hooten was able to work in a full-time, sedentary capacity and terminated total disability benefits. Mr. Hooten was placed on temporary partial disability. The claimant appealed, contending that the IAB committed legal error when it terminated total disability benefits based upon the opinions of a medical expert who did not examine him after the subsequent accident.

The Superior Court confirmed that Delaware law permits medical expert opinions offered about a patient’s condition without a physical examination of that patient. Moreover, Dr. Gelman had reviewed all of Mr. Hooten’s medical records from both before and after the intervening accident. The court further reasoned that the claimant failed to timely notify the employer of the intervening accident or of the allegation of injuries to body parts in addition to the neck, a violation of IAB’s Rule 9(C) “thirty-day notice requirement.”

The court held that the two IAB decisions cited by the claimant were not controlling law and explained that, while the IAB generally must follow its own case-decision precedent to avoid violations of due process, it is only bound to follow those decisions when they provide clear statements of law or policy. The court reasoned that the IAB’s decisions relied upon by the claimant were distinguishable from the facts/evidence of Mr. Hooten’s case because the physicians in those cases had not reviewed post-surgery records and there was no notice issue.

Lastly, the court determined that the record contained substantial evidence to support the IAB’s decision. The claimant’s condition did not appear to change at all initially following the February 2022 motor vehicle accident, according to his own testimony. Mr. Hooten, himself, was not credible because he claimed to be unable to drive in any capacity and then later admitted that he drives himself to medical appointments every day. The claimant’s expert, Dr. Mann, was not credible because he did not testify clearly as to whether Mr. Hooten should be restricted from all work or only commercial driving. Mr. Hooten made no effort to find suitable employment and was not a displaced worker. Therefore, decision of the IAB was affirmed.
 

_{What’s Hot in Workers’ Comp, Vol. 27, No. 3, March 2023 is prepared by Marshall Dennehey to provide information on recent legal 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. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}