                                             S UPERIOR COURT
                                                  OF THE
                                           S TATE OF DELAWARE

T. HENLEY GRAVES                                                        SUS S EX COUNTY COURTHOUS E
        RESIDENT JUDGE                                                              1 THE CIRCLE, SUITE 2
                                                                                   GEORGETOWN, DE 19947
                                                                                             (302) 856-5257


                                            November 7, 2016


Walt F. Schmittinger, Esquire                             H. Garrett Baker, Esquire
Schmittinger & Rodriguez                                  Elzufon Austin Reardon Tarlov & Mondell
414 S. State Street                                       300 Delaware Avenue, 17th Floor
P.O. Box 497                                              P. O. Box 1630
Dover, Delaware 19903                                     Wilmington, Delaware 19801

Re:     Torres-Molina v. Allen Family Foods,
        C.A. No. S16A-05-001 THG

        On Appeal from the Industrial Accident Board: AFFIRMED

                Date Submitted:          September 29, 2016
                Date Decided:            November 7, 2016

Dear Counsel:

        In this appeal, the Court considers whether the Industrial Accident Board (the “Board”) erred

in denying Mergilda Torres-Molina’s request for reimbursement of medical expert witness fees. For the

reasons set forth herein, the Board’s decision is affirmed.

A.      Factual and Procedural Background

        While working for Allen Family Foods (“Employer”), Merglida Torres-Molina (“Employee”)

sustained an injury to her lower back on January 13, 2015. On November 16, 2015, Employee filed a

Petition with the Board seeking acknowledgment of her work injury, payment of medical expenses, and

lost wages. The last claim was withdrawn as Employee was, in fact, able to continue working following

her injury.
        Via letter dated February 29, 2016, Employer sent a formal offer of settlement to Employee.

This letter acknowledged Employee’s claim as compensable and advised that Employer had paid all

medical bills of which it was aware. Further, Employer asked Employee to provide documentation of

any outstanding medical expenses.

        Employee responded to the settlement offer on March 14, 2016, and advised she would accept

the offer if Employer agreed to pay the expert witness fee for the deposition of Aaron Green, M.D.,

taken on March 14, 2016.

        The matter proceeded to a hearing before the Board on March 31, 2016. At the hearing,

counsel for Employee identified the sole issue before the Board: the payment of Dr. Green’s deposition

fees. Dr. Green’s deposition was admitted as an exhibit. In that deposition, Dr. Green testified that the

treatment he provided to Employee was medically reasonable and necessary. Dr. Green also testified

that, pursuant to his office’s cancellation policy, his office does not charge a fee for a deposition

cancelled a week ahead of the date for which it is scheduled.

        By way of written decision mailed April 15, 2016, the Board denied Employee’s request for

payment of Dr. Green’s deposition fees. This appeal followed.

B.      Discussion

        The Supreme Court and this Court have repeatedly emphasized the limited appellate review of

the factual findings of an administrative agency.1 The Court’s review of the Board’s decision is confined

to an examination of the record for errors of law and a determination of whether substantial evidence


        1
         General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960); Johnson v. Chrysler
Corp., 213 A.2d 64, 66-67 (Del. 1965).

                                                      2
exists to support the Board’s findings of fact.2 Substantial evidence means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.3 The appellate court does not

weigh the evidence, determine questions of credibility, or make its own factual findings.4 It merely

determines if the evidence is legally adequate to support the agency’s factual findings.5

        On appeal, Employee raises two arguments. First, she contends the Board erred in concluding

the sole issue before it was the responsibility of Employer to pay for outstanding medical expert fees.

Employee now argues the Board should have awarded her all medical expenses that were outstanding

at the time of the Board hearing. Thus, Employee avers the Board also erred in not awarding Employee

Dr. Green’s deposition fee.

        The Court finds the first argument disingenuous. This matter does not involve the enforcement

of an employer’s agreement to pay medical expenses incurred in the course of treatment. No

outstanding bills were presented at the hearing and there is no evidence that, at the time of the hearing,

Employer had failed to pay any of Employee’s medical expenses. Employee cites law on the

enforceability of agreements to pay in an effort to secure Dr. Green’s deposition fee. That law simply

does not apply here.

        The Court concludes the Board correctly identified the issue at hand and its decision to deny



        2
            Histed v. E.I. Du Pont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993).
        3
         Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994);
Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del. Super. 1986).
        4
            Johnson, 213 A.2d at 66.
        5
            29 Del. C. § 10142(d).

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Employee’s request for Dr. Green’s fee is free from legal error and supported by substantial evidence.

Employee’s counsel possessed a formal settlement offer to pay all medical expenses as of February 29,

2015, and failed to communicate it to his client due to a language barrier. Instead of reaching out to

opposing counsel and acknowledging receipt of the offer and requesting additional time to respond,

counsel simply allowed the deposition to proceed as scheduled. However, there was no need to

continue with the deposition when Employer had acknowledged Employee’s injury as a compensable,

work-related injury. Dr. Green testified his office would not charge for a deposition cancelled a week

prior. Counsel received Employer’s offer and acknowledgment of compensability two weeks prior to

the scheduled deposition. By permitting the deposition to go forward, unnecessary expenses were

incurred. The Board did not err in failing to pass that unnecessary expense on to Employer.

C.      Conclusion

        For the reasons set forth herein, the Board’s decision declining to award Employee medical

expert fees is AFFIRMED.

        IT IS SO ORDERED.

                                                                  Very truly yours,

                                                                  /s/ T. Henley Graves

                                                                  T. Henley Graves

oc:     Prothonotary
cc:     Industrial Accident Board




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