Board abused its discretion by allowing claimant to testify about job search efforts where she had previously provided no information on this subject in response to employer's discovery request.

The claimant was employed as a dietary aid and on August 15, 2007, sustained a work injury to her knees which was accepted as compensable. Several years later, on January 21, 2011, the claimant had knee surgery, and her treating physician put her on total disability status. The claimant filed a petition to determine additional compensation due, seeking payment for the period of total disability. The employer argued the claimant was not entitled to those benefits since she had left her employment voluntarily. The claimant then countered that, although she had not worked since May 2008, she had attended a business school and attempted to find work with several employers. The employer objected to this testimony on the basis that, in response to its discovery requests which sought information including any job search efforts by the claimant, no such information had been provided. The Board allowed the testimony over the employer's objection and further found that the claimant was entitled to total disability benefits for the period at issue and concluded that the claimant had not voluntarily withdrawn from the workforce.

The employer filed an appeal with the Superior Court, which reversed and remanded the Board's decision on the basis that the Board had abused its discretion by allowing the claimant's testimony. The court reasoned that the Board had expressly considered the claimant's testimony as to her school and job search efforts in concluding that she had not voluntarily withdrawn from the workforce. The employer had made valid discovery requests and could not effectively cross-examine the claimant without having been aware of the claimant's job search efforts. The claimant argued that the information as to her job search efforts was not discoverable since it was not memorialized in any document and was rejected out of hand by the court. The court commented that this sort of razor thin distinction being made by the claimant was once referred to as "unhandsome dealing" and that not having the information in a written form is clearly not the same as not having the information at all. Accordingly, the case was sent back to the Board for further proceedings.

Case Law Alert - 3rd Qtr 2012