Walmart, Inc. v. Gallagher

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
WALMART, INC., )
Employer-Below, )
Appellant, )
)
v. ) C.A. No. N21A-07-003 PRW
)
PAMELA GALLAGHER, )
Claimant-Below, )
Appellee, )
Submitted: February 24, 2022
Decided: May 24, 2022
Upon Walmart Inc.’s Appeal from the Industrial Accident Board,
AFFIRMED.
MEMORANDUM OPINION
Maria Paris Newell, Esquire, HECKLER AND FRABIZZIO, Wilmington, Delaware,
Attorney for Appellant Walmart, Inc.
Gary S. Nitsche, Esquire, and Joel H. Fredericks, Esquire, WEIK NITSCHE &
DOUGHERTY LLC, Wilmington, Delaware, Attorneys for Appellee Pamela
Gallagher.
WALLACE, J.
Walmart, Inc. files this appeal from Industrial Accident Board’s (the “Board”
or “IAB”) grant of Pamela Gallagher’s Petition to Determine Additional
Compensation Due. The Court finds the Board’s decision is supported by substantial
evidence and is free from legal error. Accordingly, the Board’s decision is
AFFIRMED.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pamela Gallagher worked for Walmart for approximately five years.1 Her job
required her to unload trucks, bend down and lift boxes, and break down boxes.2
During her shift on June 13, 2018, Ms. Gallagher “bent over at one point and . . . felt
excruciating pain in [her] lower back.”3 She was immediately “stuck in a bent over
position.”4 The pain concentrated in her low back and radiated into her right thigh.5
Ms. Gallagher was taken by ambulance to the Saint Francis Hospital emergency
room for evaluation and treatment.
In the ambulance, Ms. Gallagher told the EMT’s that she thought she was
1
Transcript of Apr. 23, 2021 IAB Hearing at 10 (marked as “Tab 2” in the IAB Record;
hereinafter “Hr’g Tr.”), Walmart v. Gallagher, N21A-07-003 PRW, Aug. 13, 2021 (D.I. 5).
2
Id.
3
Id. at 11.
4
Id.
5
Id. at 12.
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suffering a flare up from a prior “sciatica” issue.6 Ms. Gallagher’s sciatica began
after the birth of her son, more than thirty years before.7 She described the sciatica
symptoms as gradual, inconsistent pain that came and went, mainly affecting her
buttocks area.8 Before June 13, 2018, her sciatica would flare up and go away in a
short period of time.9 This condition did not impede her ability to work, and
Ms. Gallagher did not recall receiving any specific medical treatment—other than
one spinal injection—over the years for her sciatica.10 According to Ms. Gallagher,
the sciatica symptoms and the pain resulting from the June 13, 2018 incident weren’t
the same.11
After being discharged from Saint Francis, Walmart sent Ms. Gallagher to
Concentra to treat the work injury and coordinate her continued care.12 While at
Concentra, Ms. Gallagher participated in physical therapy, completed a battery of
6
Id. at 12.
7
Id.
8
Id. at 12-13.
9
Id. at 16.
10
Id. at 13-14. Other than one prior back injection, Ms. Gallagher did not receive any other
therapeutic, medical, chiropractic or other treatment for sciatica. Id. at 14.
11
See id. at 25-26, 32-33, 45-46, 48-50.
12
Id. at 14-15. Concentra medical records reflect Ms. Gallagher reported a “prior history of
sciatica with some involvement to the left thigh.” Id. at 15.
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chiropractic treatments, and underwent an MRI.13 After receiving the MRI results,
Concentra referred Ms. Gallagher to Dr. Selina Xing, M.D. Dr. Xing recommended
that Ms. Gallagher receive a back injection—a selective nerve root block.14
Concurrently, Concentra referred Ms. Gallagher to a neurologist at Christiana Care
to “confirm the need for . . . the [selective nerve root block] injections.”15 After
completing an examination, the neurologist agreed with the reasonableness and
necessity of the nerve root block injection.16 During the month of December 2018,
Dr. Xing performed the selective nerve root block procedure.17
That provided Ms. Gallagher temporary relief but about five months later
Ms. Gallagher’s pain returned to its pre-procedure level.18 In June 2019, Dr. Xing
repeated the selective nerve root procedure.19 Like the first injection, this second
procedure provided Ms. Gallagher short-term relief. But after six months,
Ms. Gallagher’s pain returned.20
13
Id. at 15.
14
Id. at 16.
15
Id. at 16-17.
16
Id. at 17.
17
Id.
18
Id.
19
Id. at 17-18. All of Ms. Gallagher’s workers’ compensation claims were processed and paid
by Walmart’s workers’ compensation carrier. Id. at 18.
20
Id. at 18.
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In early 2020, Ms. Gallagher’s pain became worse than it had been prior to
the selective nerve block injections.21 She tried acupuncture but that didn’t relieve
her back pain.22 Dr. Xing recommended, for a third time, that Ms. Gallagher repeat
the selective nerve root block procedure.23 Soon thereafter, she performed that
procedure. Just as with the first two injections, Ms. Gallagher received only
temporary relief.24 Approximately six months after the third try, Ms. Gallagher’s
pain returned. So Dr. Xing referred Ms. Gallagher to Dr. Mark Eskander, a board-
certified orthopedic spine surgeon.25
On October 1, 2020, Dr. Eskander recommended that Ms. Gallagher undergo
spinal fusion surgery and classified Ms. Gallagher as totally disabled pending
surgery.26 Ms. Gallagher agreed to the surgery but it was postponed because
Walmart’s workers’ compensation insurance carrier declined to pay for it.27
Up to this point in Ms. Gallagher’s treatment, Walmart never contested that
Ms. Gallagher suffered a work-related injury on June 13, 2018, or that any given
21
Id. at 19.
22
Id. at 20.
23
Id. at 20-21.
24
Id. at 21.
25
Id. at 21. Ms. Gallagher’s last day of work had been August 27, 2020. Id. at 28.
26
Id. at 22.
27
Id. at 22-23.
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treatment or procedure wasn’t both necessary and appropriate. Indeed, Walmart
paid for all treatments related to the June 2018 work injury—until Dr. Eskander
recommended spinal fusion surgery.
On October 29, 2020, Ms. Gallagher filed a Petition to Determine Additional
Compensation Due to an Insured Employee. Ms. Gallagher claimed she was entitled
to total disability benefits, payment of medical expenses, including the surgery
recommended by Dr. Eskander, and attorney’s fees.
The Industrial Accident Board conducted a hearing on Ms. Gallagher’s
petition. Prior to the hearing, the Parties submitted a stipulation of facts to the Board.
Through that stipulation, the parties agreed that: (1) Ms. Gallagher had sustained a
compensable injury to her low back as a result of a June 13, 2018 work-related
accident while working for Walmart; (2) Ms. Gallagher had filed a Petition to
Determine Additional Compensation Due “seeking payment of all medical expenses
and periods of disability associated with the low back surgery proposed by Dr. Mark
Eskander;” and, (3) Walmart disputed the reasonableness, necessity and causal
relationship of the low back surgery to the June 13th work-related accident.28
After a comprehensive review of the evidence presented at the hearing, the
Board granted Ms. Gallagher’s Petition for Additional Compensation Due.
28
Joint Stipulation of Facts (marked as “Tab 7” in the IAB Record; hereinafter “Jt. Stip.”),
Walmart v. Gallagher, N21A-07-003 PRW, Aug. 13, 2021 (D.I. 5).
-6-
The Board reviewed Ms. Gallagher’s medical records beyond those relevant to her
present injury and considered the medical expert testimony offered through the
depositions of both Dr. Eskander and Walmart’s expert, Dr. Andrew Gelman.
Importantly, in assessing the testimony of the respective physicians’ positions, the
Board rejected Dr. Gelman’s testimony, explaining it:
. . . did not find Dr. Gelman credible. Among other contentions
Dr. Gelman made, the Board rejects the contentions that [Ms.
Gallagher] had poor prognosticators of not having a successful surgical
outcome because the surgery relates to a worker’s compensation claim
and because [Ms. Gallagher] has an attorney representing her. The
Board notes Dr. Gelman was selective during his direct testimony by
not acknowledging that prior to rendering his initial opinion, he was
aware of the low back references cited above in the ambulance records,
the Concentra records of July 9, 2018, and the MedExpress medical
records. Dr. Gelman, pursuant to his second defense medical
examination, opined that [Ms. Gallagher]’s injury was limited to a
sprain and strain that her lumbar radiculopathy diagnosis returned to
baseline. The latter opinion is counter to the course of medical
treatment. [Ms. Gallagher]’s burden of proof is relatively low. The
Board is satisfied that Dr. Eskander’s proposed fusion surgery is
reasonable, necessary and causally related to the work accident.29
The Board acknowledged the compensability of the spinal fusion surgery and
awarded payment of: (1) outstanding medical bills; (2) Ms. Gallagher’s medical
expert witness fees; and, (3) payment of a reasonable attorney’s fees.30
29
IAB Decision on Petition to Determine Additional Compensation Due at 26 (marked as “Tab
8” in the IAB Record; hereinafter “IAB Decision”), Walmart v. Gallagher, N21A-07-003 PRW,
Aug. 13, 2021 (D.I. 5).
30
Id. at 28.
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Ms. Gallagher suffered a work-related, compensable injury, and the Board ordered
Walmart to pay for reasonable and necessary medical services connected with that
injury, including the spinal fusion surgery.31 The Board concluded the proposed
surgery was reasonable, necessary, and causally related to the Walmart work
accident.32
Walmart filed a timely appeal to this Court and the matter has been fully
briefed. In sum, Walmart argues: (1) that its due process rights were violated by the
IAB’s purported refusal to allow it to present certain evidence; and (2) the IAB erred
in finding an implied agreement for compensation of an injury that was not covered
in the earlier express agreements and final receipts.
II. STANDARD OF REVIEW
This Court’s authority to review appeals from the Board is governed by
29 Del. C. § 10142(d) which provides: “[t]he Court’s review, in the absence of
actual fraud, shall be limited to a determination of whether the agency’s decision
was supported by substantial evidence on the record before the agency.”33 Indeed,
“[t]he limited role of . . . the Superior Court, when reviewing an appeal from the
31
Id. at 25.
32
Id.
33
DEL. CODE ANN. tit. 29, § 10142(d) (2021).
-8-
IAB, is to determine whether the Board’s decision is supported by substantial
evidence and is free from legal error.”34
Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”35 Where the Board adopts one medical
opinion over another—as is its prerogative when medical evidence is in conflict—
the opinion adopted by the Board constitutes substantial evidence for purposes of
appellate review.36 But when that conflicting expert medical testimony is by
deposition, the Board should provide “‘specific relevant reasons’ based on evidence
in the record for accepting one expert’s testimony over the other’s.”37
Now, when this Court reviews the record before the Board for substantial
evidence it “must consider the record in the light most favorable to the party
prevailing below, resolving all doubts in her favor”38 and it will not weigh the
evidence, determine questions of credibility, or make its own factual findings and
34
Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006).
35
Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993).
36
Munyan, 909 A.2d at 136.
37
Elliott v. State, 2014 WL 3049504, at *4 (Del. Super. Ct. June 30, 2014) (citing Rhinehardt-
Meredith v. State, 2008 WL 5308388, at *5 (Del. Dec. 22, 2008) (discussing Lindsey v. Chrysler
Corp., 1994 WL 7500345 (Del. Super. Ct. Dec. 7, 1994))).
38
Steppi v. Conti Electric., Inc., 2010 WL 718012, at *2 (Del. Mar. 16, 2010) (cleaned up).
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conclusions.39 Because on appeals like this, only questions of law are reviewed de
novo.40
This is all to say that where substantial evidence supports the IAB’s decision,
this Court must affirm the ruling unless it identifies an abuse of discretion or a clear
error of law.41
III. PARTIES’ CONTENTIONS
According to Walmart, the Board denied it due process of law by refusing to
allow it to present evidence supporting defenses it intended to raise during the IAB
hearing. In the IAB Pre-Trial Memorandum, Walmart noted it intended to rely on
“all legal arguments and defenses[,] including forfeiture defenses.”42 To assert one,
some or all of the potentially available defenses, Walmart said it needed to examine
Ms. Gallagher “on her pre-existing history and prior accidents.”43 Walmart says its
hearing strategy was to demonstrate Ms. Gallagher’s “lack of credibility and candor
39
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965) (“On appeal from the Board, however,
the Superior Court does not sit as a trier of fact with authority to weight the evidence, determine
questions of credibility, and make its own factual findings and conclusions.”).
40
Munyan, 909 A.2d at 136.
41
Id.; see also Bolden v. Kraft Foods, 2005 WL 3526324, at *2 (Del. Dec. 21, 2005) (“Where
substantial evidence supports the administrative decision [of the IAB on a petition for additional
compensation], this Court must affirm the ruling unless it identifies an abuse of discretion or a
clear error of law.”).
42
Appellant’s Opening Br. at 20, Walmart v. Gallagher, N21A-07-003 PRW, Sept. 7, 2021 (D.I.
9).
43
Id.-10-
in reporting her extensive pre-existing [medical] history”44 which, it goes on, would
call into question the necessity of the spinal fusion surgery recommended by
Dr. Eskander.45
Walmart complains the Board also limited its ability to develop the factual
bases for certain purported defenses by prodding counsel, on several occasions, to
“move on” during the questioning of Ms. Gallagher.46 Walmart insists the comments
of the Board to “move on” impacted its ability to establish a civil forfeiture defense
and a so-called Nally47 argument. Walmart asserts at least one “Board Member had
already reached a decision and was unwilling to hear any evidence to the contrary.”48
Walmart argues it was “denied the ability to put forth any of [its] defenses [as it] was
unable to bring in the relevant evidence.”49
Second, Walmart claims there was an implied agreement for compensation
44
Id.45
Id.46
Id.47
That is, Walmart suggests the evidence or testimony it complains was excluded would have
allowed it to argue that Ms. Gallagher’s existing condition was actually a result of some pre-
Walmart injury. See Standard Dist. Co. Through Pennsylvania Mfrs. Ass’n Ins. Co. v. Nally, 630
A.2d 640 (Del. 1993) (reiterating the “last injurious exposure” rule—which prescribes the
appropriate methodology for determining successive carrier responsibility where there are alleges
to have been multiple episodes of industrial accident-related injuries or changes in physical
condition).
48
Appellant’s Opening Br. at 21.
49
Id.-11-
for only a certain type of injury—namely a lumbar strain. Walmart contends the
Board abused its discretion in concluding the prior agreements between
Ms. Gallagher and Walmart related to a “lumbar radiculopathy” diagnosis, thereby
allowing the Board to award Ms. Gallagher benefits beyond the prior settlement for
a lumbar strain.50
Ms. Gallagher asserts Walmart “was provided every opportunity to present all
relevant and admissible evidence it desired.”51 Walmart, she says, made legal
arguments supported by the evidence and the Board did not impede its counsel from
questioning her.52 According to Ms. Gallagher, the Board sustained just one of her
objections and overruled all of her later objections, allowing Walmart to continue its
cross-examination.53 And the Board never instructed Ms. Gallagher not to answer
questions on cross-examination nor refused to allow Walmart to ask Ms. Gallagher
relevant questions.54 In fact, says Ms. Gallagher, the Board allowed Walmart “to
cross-examine [her] as long as it wanted,” and Walmart’s counsel “is the one that
50
Id. at 29. It appears this claim was not raised in the hearing below.
51
Appellee’s Answering Br. at 16, Walmart v. Gallagher, N21A-07-003 PRW, Sept. 27, 2021
(D.I. 10).
52
Id.
53
Id. at 18.
54
Id.
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concluded the cross-examination.”55 Ms. Gallagher suggests that the Board
considered all Walmart’s legal arguments in its decision and its evidentiary rulings
were correct and appropriate.
As to Walmart’s second claim, Ms. Gallagher contends this litigation involves
“a permanent impairment already acknowledged by written agreement and
[Walmart] is attempting to argue that the injury is now resolved.”56 In
Ms. Gallagher’s view, the Board “did not determine that the surgery was reasonable,
necessary and related because of the payment of medical treatment prior to the
surgical recommendation.”57 Instead, the Board was addressing Walmart’s request
for the Board to revisit the compensability of treatment in the first place. Says
Ms. Gallagher, because Walmart previously conceded the injury, it could not now
deny the existence of an injury.58 And, because Walmart previously conceded the
injury was permanent, it could not claim it was “resolved.”59 Walmart paid for
injections that their own expert “agreed were used to treat lumbar radiculopathy, so
it could not now claim those injections were unrelated.”60 And, insists
55
Id. at 19.
56
Id.
57
Id. at 20.
58
Id.
59
Id.
60
Id.
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Ms. Gallagher, the Board’s ultimate determination of the reasonableness, necessity
and causal relationship of the proposed surgery was based on the Board’s own
review of all the evidence at the hearing and “accepting Dr. Eskander’s credibility
over that of Dr. Gelman.”61
IV. DISCUSSION
A basic tenet of procedural due process is that litigants have the right to
receive notice and to be heard “at a meaningful time and in a meaningful manner.”62
“While administrative hearings are not subject to all the same ‘rules’ as judicial
proceedings, parties to administrative hearings are entitled to the protections
provided” by core notions of due process.63 But indeed, “what makes up due
process” in a given situation “is a flexible concept, calling for the procedural
protections each particular set of circumstances demands.”64 Just so in IAB
hearings.
61
Id.
62
Slawik v. State, 480 A.2d 636, 645 (Del. 1984).
63
Eckeard v. NPC Int’l, Inc., 2012 WL 5355628, at *3 (Del. Super. Ct. Oct. 17, 2012).
64
Id. See also Vincent v. Eastern Shore Markets, 970 A.2d 160, 164 (Del. 2009)
(Observing in an IAB appeal: “Due process, unlike some legal rules, is not a technical notion with
a fixed content unrelated to time, place, and circumstances; rather it is a flexible concept which
calls for such procedural protections as the situation demands. As it relates to the requisite
characteristics of the proceeding, due process entails providing the parties with the opportunity to
be heard, by presenting testimony or otherwise, and the right of controverting, by proof, every
material fact which bears on the question of right in the matter involved in an orderly proceeding
appropriate to the nature of the hearing and adapted to meet its ends.”) (internal citations omitted).
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The Board is not bound by the formal rules of evidence.65 Yet those rules are
generally applied in Board hearings, subject to the exercise of the Board’s discretion.
Specifically, Industrial Accident Board Rule 14(C) provides:
(C) The rules of evidence applicable to the Superior Court of the State
of Delaware shall be followed insofar as practicable; however, that
evidence will be considered by the Board which, in its opinion,
possesses any probative value commonly accepted by reasonably
prudent persons in the conduct of their affairs. The Board may, in its
discretion, disregard any customary rules of evidence and legal
procedures so long as such a disregard does not amount to an abuse of
its discretion.66
Rule 14 allows the Board to fashion its own procedural rules or relax the rules of
evidence to ensure the efficient administration of claims.67 It’s presumed “the
Board, with its background and expertise, is able to evaluate evidence without the
restrictions and safeguards imparted by the formal rules of evidence.”68
But the Board’s ability to operate under relaxed evidentiary rules is not
without limit. “[T]he Board . . . may not . . . relax rules which are designed to ensure
the fairness of the procedure. ‘While the nature of the proceedings and the spirit of
the Compensation Law justify some relaxation of the technical rules of evidence,
nevertheless, it is fundamental that the right to confront witnesses, to cross-examine
65
Torres v. Allen Family Foods, 672 A.2d 26, 31 (Del. 1995).
66
Industrial Accident Board Rule 14(C).
67
Torres, 672 A.2d at 31.
68
Id.-15-
them, to refute them, and to have a record of their testimony must be accorded unless
waived.’”69 The rules applied—including that affording a right to cross-examine
hearing witnesses—are designed to guarantee the substantial rights of the parties and
are based on fundamental notions of fairness.70 And the IAB’s exclusion of relevant,
material and competent evidence—if done in a way that exceeds the bounds of
reason in view of the circumstances or so ignores recognized rules of law or practice
to the extent it produces injustice71—could present grounds for reversal if that
evidence exclusion is unfairly prejudicial.72
A. THE DUE PROCESS CLAIM
On December 14, 2020, Walmart filed a Pre-Trial Memorandum.73 In that
memorandum, Walmart, without specificity, generally asserted the following
defenses:
69
Id. (quoting Gen. Chemical Div., Allied Chemical & Dye Corp. v. Fasano, 94 A.2d 600, 601
(Del. 1953); accord Air Mod Corp. v. Newton, 215 A.2d 434, 439 (Del. 1965)).
70
Id. (citing 3 Arthur Lawson, The Law of Workmen’s Compensation § 79.83(a) (1995)).
71
See Willis v. Plastic Materials, Co., 2003 WL 164292, at *1 (Del. Super. Ct. Jan. 13, 2003);
Cooper v. Delaware Bd. of Nursing, 2021 WL 754306, at *2 (Del. Super. Ct. Feb. 26, 2021) (“A
board abuses its discretion where it exceeds the bounds of reason in view of the circumstances or
ignores recognized rules of law or practice so as to produce injustice.”) (cleaned up), aff’d, 2021
WL 4938135 (Oct. 21, 2021).
72
Torres, 672 A.2d at 31 (citing John Strong, et al. McCormick on Evidence § 352, 513 (4th ed.
1992)).
73
See Appellant’s Response to Order, Ex. A, Walmart v. Gallagher, N21A-07-003 PRW, Feb.
24, 2022 (D.I. 14).
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(a) “Any and all defenses applicable/available including caselaw,
statutes, Larson’s;”
(b) “Non-compliance with IAB Rules 9 -11;” and
(c) “19 Del. C. §§ 2343 and/or 2353; forfeitures may apply, AMA
guides.”74
In pursuit of one or more of these defenses, Walmart, at the start of Ms. Gallagher’s
cross-examination, broached what it described as “Ms. Gallagher’s claim history”—
i.e., prior worker’s compensation claims she allegedly made during the course of her
employment history. By highlighting these prior claims, Walmart believed it could
demonstrate Ms. Gallagher’s “pre-existing history and lack of candor.”75
Walmart’s counsel specifically reviewed Ms. Gallagher’s “vocational
history,” including when she worked for the following employers: Green Tweed
Company, Central Sprinkler Company, Clements Markets, North Penn Adult Day
Services, and Burlington Coat Factory.76 Walmart asked Ms. Gallagher whether she
“had worker’s compensation claims with all those employers?”77 Ms. Gallagher
couldn’t say she did. For instance, she didn’t recall a workers’ compensation claim
74
Id. ¶ 13.
75
Appellant’s Opening Br. at 22.
76
Hr’g Tr. at 28-29.
77
Id. at 29.
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for a “slip and fall” injury.78 She did recall, while working at Burlington Coat
Factory, an incident where a “whole rack of clothing fell down on [her] and another
worker.” But Ms. Gallagher didn’t believe she had reported that incident to her
employer, received any medical treatment for the event, or suffered any injury.79
Walmart then asked Ms. Gallagher about two workers’ compensation claims
it suggested Ms. Gallagher submitted to the Green Tweed Company—one a
repetitive-motion injury to her foot; the other a repetitive-motion injury to her
elbow.80 Ms. Gallagher didn’t deny the injuries or claims but explained she was
“only doing what I was told to do.”81 Walmart then asked Ms. Gallagher about four
workers’ compensation claims she supposedly submitted to the Central Sprinkler
Company, injuries to her back and foot—two in 1998 and two in 1999.82
Ms. Gallagher testified those injuries that occurred more than 20 years ago “weren’t
work related.”83
78
Id.
79
Id. at 29-30.
80
Id. at 30.
81
Id.
82
Id.
83
Id.
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Ms. Gallagher’s counsel objected, and the following argument ensued:
Ms. Gallagher’s
Counsel: I have to object. At this point, I do not believe
[Walmart’s Counsel] is referring to admissible
evidence. I think what she is referring to is a claims
index search, which is not evidence. And it has not been
authenticated by anybody to prove that [the claims
index] actually is accurate. What those are are internal
databases where adjustors put in information, and they
do it sometimes when there is no treatment at all. If
somebody slips at work, says they feel some pain in
their ankle. They don’t get any treatment. The
employer has to report it to the insurance company.
They write right ankle. I mean, I – at this point I don’t
believe [Walmart’s Counsel] is referring to any medical
records, because it certainly hasn’t been discussed by
any of the medical doctors. And in my review of the
records, I don’t recall seeing any of that. I think it is in
a claims index search that is inadmissible.
Walmart’s
Counsel: My response to that is this is the Ms. Gallagher’s claim
history. I am asking her to verify the accuracy of it. She
can indicate the accuracy of the claims history and go
into the details that the Claimant attorney is indicating
and can deny it or admit to it. So, I think that it is
entirely relevant, the fact that she has at least 11 workers
compensation claims. And she can accept or deny them
here today.
Ms. Gallagher’s
Counsel: And how is it, in furtherance of my objection, how is a
claim for a right ankle injury of any bearing to a low
back acknowledged claim for the last two and a half
years, when really what we are talking about is a
medical opinion about the reasonableness, necessity,
and causal relationship of the low back surgery. That—
that is in addition to my objection as to the evidence
itself.
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Walmart’s
Counsel: And going to relevancy, her functional level (inaudible)
some of the arguments I am going to be making today,
this is all very relevant. I am asking for the Board to –
Hearing Officer: These are over —
Walmart’s
Counsel: — at this time.
Hearing Officer: They’re — they are going to be sustained. We are going
to move on.
Walmart’s
Counsel: Thank you.84
Walmart never: addressed the substance of Ms. Gallagher’s objection—that the
source of the data it relied upon was an inadmissible claims index search; laid a
proper foundation for the questions; nor established the relevance of the alleged
worker’s compensation claims with prior employers. Walmart never: identified the
source of the reputed workers’ compensation claims data; authenticated the source
of the information it sought to admit; nor denied (or conceded) that it was the product
of a claims index search. It also never argued that a claims index search would be
admissible nor explained the relevance of questioning Ms. Gallagher about
purported workers compensation claims that were more than two decades old.
84
Id. at 30-32. The Hearing Officer also noted, on the record, that the claims were “over 20 years
old.” Id. at 32.
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Under these circumstances, the Hearing Officer did not abuse her discretion in
sustaining Ms. Gallagher’s objection.
Ms. Gallagher’s cross-examination continued, and Walmart’s counsel
focused her inquiry on Ms. Gallagher’s medical records—from both before and after
the June 13, 2018 injury—to suggest that Ms. Gallagher had a demonstrated pattern
of underreporting (or misreporting) her medical history to a host of treatment
providers, including Dr. Eskander. Walmart attempted through this examination to
attack Ms. Gallagher’s credibility in general and show that the medical history she
provided at the hearing was not supported by the medical records
contemporaneously created at the time she saw any given medical provider.85
Walmart specifically asked Ms. Gallagher about her medical and treatment
history. That included inquiry on records that disclosed reported lower back issues
(or the absence of same) from medical records created on the following pre-June
2018 dates: (1) June 12, 2009—Ms. Gallagher conceded she saw a doctor for
injuries to her right wrist and lower back;86 (2) August 15, 2009—Ms. Gallagher
could not recall seeing her primary care physician complaining of low back pain
85
In its Decision, the Board acknowledged Ms. Gallagher’s credibility issues but didn’t outright
reject her testimony. IAB Decision at 25 (“The Board recognizes that Ms. Gallagher presented
with credibility issues but they were not such to cause her to fail to meet her burden of proof.”).
86
Hr’g Tr. at 33-34.
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after work at North Penn Adult Services;87 (3) February 23, 2011—Ms. Gallagher
did not recall visiting her primary care physician for complaints of back pain and
left flank pain;88 (4) March 20, 2015—reporting pain “in neck, back, shoulders and
knees”;89 (5) a 2015 medical record—reporting an ankle/lower extremity injury;90
(6) August 5, 2016—presenting for treatment of “depression and back pain”;91 (7)
March 21, 2017—Records reflect Ms. Gallagher went to an emergency room in
December 2016 for “back and lower extremity pain bilaterally”);92 (8) March 21,
2017—recommendation for an MRI of the back;93 (9) December 2017—records
indicate chronic conditions, including chronic right side back pain, chronic sciatica,
obesity and depression;94 and, (10) January 12, 2018—record indicating medication
taken for back and knee pain.95
Walmart then focused on the purported defenses it set forth in the Pre-Trial
Memorandum. The following exchange occurred:
87
Id. at 34.
88
Id.
89
Id. at 32, 35.
90
Id. at 39-40.
91
Id. at 35.
92
Id.
93
Id. at 39.
94
Id. at 36.
95
Id. at 37.
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Walmart’s
Counsel: Did you inform Walmart, at the time of hire, of all these
medical conditions, and how they affected your function
and ability to stand and walk, and lift?
Ms. Gallagher’s
Counsel: Objection. Objection. She hasn’t established the basis
as to the relevancy of this question. Again, I let a lot of
this stuff go, because I understand the efficiency with
these hearings, and the idea of allowing the admission
of certain evidence, to get to the ultimate conclusion.
But, at the end of the day, we are talking about an
already acknowledged permanent injury to the lower
back, and the reasonableness, necessity and causal
relationship of a low back surgery. There is no other
defenses that have been alleged, other than contesting
the reasonableness, necessity and causal relationship of
the low back surgery. So, I don’t believe this line of
questioning is relevant.
Walmart’s
Counsel: It is relevant. Again, I will be making my arguments, in
closing argument, to explain why this is relevant. I am
asking for deference from the Board. I have put on the
pretrial I intend to rely upon all legal arguments and
defenses in this case.
Ms. Gallagher’s
Counsel: So, there isn’t an allegation that there is some sort of
misleading of the Employer. Correct me if I’m wrong,
because I am not the end all, be all, with workers
compensation terminology, I believe that is similar to a
forfeiture argument. If I am correct, I don’t believe that
any of that stuff was specifically disclosed. And if it
was disclosed, I certainly would have established the
evidence that would rebut it, in questioning the witness
at the beginning. And I also probably would have
established the—and maybe called additional witnesses
on my end to rebut that.
-23-
Walmart’s
Counsel: 2353 is specifically pled on the pretrial memorandum.
Hearing Officer: Yes.
Walmart’s
Counsel: Which involves—which involves lots of different
particular issues. Again, in a claim that has already been
acknowledged—for two and a half years . . . . So, did
you inform Walmart about these limitations and these
physical problems, your function issues, prior to
accepting this job position?
Ms. Gallagher: No.96
Walmart’s counsel then questioned Ms. Gallagher about medical records and visits
that occurred on or after June 13, 2018: (1) June 13, 2018—No mention of sciatica
in the record);97 (2) visit with Dr. Zeraphos—no mention of sciatica in the record,
but Ms. Gallagher explained the pain she visited the doctor for was “not in the same
location as my sciatica”;98 (3) August 22, 2018 (Dr. Xing)—no prior “injuries,”
noted, prior sciatica “resolved;99 (4) December 19, 2018 (Dr. Xing)—released to
96
Hr’g Tr. at 40-42. The record does not reflect Walmart offered any evidence at the hearing to
establish, that, at the time Ms. Gallagher was hired, it inquired whether Ms. Gallagher had a
disability or condition that would have disqualified her from employment, or informed
Ms. Gallagher that a particular functional level or physical condition was necessary for the position
for which she was hired. On re-direct examination, Ms. Gallagher testified that when she started
working at Walmart in June 2016 she “did not have an ongoing disability that prevented [her] from
doing any type of work.” Id. at 82. And confirmed that—if she had, in fact, had such an ongoing
disability and if Walmart had asked—she would have told Walmart about it. Id. at 83.
97
Id. at 43.
98
Id. at 46.
99
Id. at 64-65.
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return to work full duty, without restrictions, and Ms. Gallagher went back to work
full time, without restrictions;100 (5) July 17, 2019—Ms. Gallagher no longer has
constant pain in back, radicular symptoms in lower extremity;101 (6) October 1,
2020—Ms. Gallagher’s pain is reported to be a two, on a scale of one to ten;102 and,
(7) April 8, 2021—Ms. Gallagher’s pain is reported to be a two, on a scale of one to
ten.103
Walmart next questioned Ms. Gallagher on her responses to questions in the
Industrial Accident Board Statement of Facts Upon Failure to Reach an Agreement
(“Statement of Facts”).104 Walmart’s counsel pointed out several omissions and
errors in the answers on the form.105 One final point made by Walmart—Ms.
Gallagher claimed at the hearing that she did not believe she had reached maximum
medical improvement from her injury, but had to concede that in September 2020
she reported she had “reached maximum medical improvement.”106
100
Id. at 66.
101
Id.
102
Id.
103
Id. at 67.
104
IAB Statement of Facts Upon Failure to Reach an Agreement (marked as “Tab 4” in the IAB
Record; hereinafter “Statement of Facts”), Walmart v. Gallagher, N21A-07-003 PRW, Aug. 13,
2021 (D.I. 5).
105
Hr’g Tr. at 70-74.
106
Id. at 75.
-25-
Walmart then, of its own accord, ended its cross-examination of
Ms. Gallagher.107 And Walmart declined to ask her any questions after her re-direct
examination.108
Walmart’s due process claim is based solely on the Board’s conduct during
Ms. Gallagher’s cross-examination. And that record just doesn’t support its due
process claim. To the extent Walmart’s cross-examination was limited, it was only
limited after counsel argued their respective positions on the admissibility of what
was described as a claims index search and the establishment of defenses noted in
the pretrial memorandum. The Board applied the rules of evidence when
Ms. Gallagher objected and found the claims index search inadmissible. All other
objections by Ms. Gallagher’s counsel were overruled in Walmart’s favor.
Even given its most generous read, Walmart’s argument for admissibility of
evidence at the Board hearing never directly addressed the objection made or cited
to one rule of evidence. Instead, Walmart’s counsel represented that she intended to
wait until closing argument to reveal the relevance of a particular item of evidence;
counsel then asked for patience or deference from the Board, and summarily referred
to Walmart preserving the right to assert “all legal arguments and defenses.”109 And,
107
Id. at 78.
108
Id. at 89.
109
See, e.g., id. at 32 (“And going to relevancy, her functional level (inaudible) some of the
arguments I am going to be making today, this is all very relevant. I am asking for the Board to -
-26-
during cross-examination when the Board suggested to Walmart some testimony it
was interested in eliciting from Ms. Gallagher and that it believed would assist its
decision,110 the Board did not unduly or unreasonably restrain Walmart’s counsel’s
questioning. In fact, immediately after the Board suggested counsel “move on” to
another line of questioning, she resumed querying Ms. Gallagher on her medical
records—specifically, the August 22, 2018 and December 19, 2018 records from
Dr. Xing,111 a medical record from July 17, 2019,112 and Ms. Gallagher’s visits with
Dr. Eskander on October 1, 2020, and April 8, 2021.113 Walmart then confronted
Ms. Gallagher with the Statement of Facts and questioned her about her answers to
specific items on the form.114 Several other claim-related documents were then
discussed on the record until Walmart’s counsel, by choice, concluded her cross-
- at this time.”); Id. at 41 (“It is relevant. Again, I will be making my arguments, in closing
argument, to explain why this is relevant. I am asking for deference from the Board. I have put
on the pretrial I intend to rely upon all legal arguments and defenses in this case.”); Id. at 55 (Okay,
well, I apologize here, but I am just going to say this prior to the [spinal] injections, Okay? And I
need to put on the case and build the evidence. I—I don’t know [how] else to do this. I’m sorry,
I’ve been doing this 30 years, and under due process, I am allowed to put on my evidence. So, I
would just ask for your patience, because I think it will all come together.”).
110
One Board member explained, “I’m saying that I’m looking for the history of her medical
history from the time of the accident and—and [what] support Walmart has given her from that
point.” Id. at 53.
111
Id. at 64-66.
112
Id. at 66.
113
Id. at 66-67.
114
Id. at 70-74.
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examination.115
Walmart now suggests that this Court’s decision in Hy-Point Dairy Farms v.
Dumire and IAB,116 supports its argument that the Board denied her due process.
Not so.
In Hy-Point, the IAB hearing “proceeded in a somewhat unconventional
manner.”117 There the Board permitted the Hy-Point claimant to testify in narrative
form, uninterrupted, for several minutes.118 When the Board started asking
questions, the claimant “went on long, unresponsive soliloquies irrelevant to the
issues under discussion.”119 The Board eventually lost patience with that claimant
and began asking her leading questions while concurrently “cutting her off when she
offered unresponsive answers.”120 The Board “concluded the claimant’s testimony”
and then failed to give the employer an “opportunity to freely tell Hy-Point’s side of
the story.”121 The Board concluded the Hy-Point hearing without: (1) determining
115
Id. at 81.
116
2004 WL 2827864 (Del. Super. Ct. Dec. 6, 2004).
117
Id. at *2.
118
Id.
119
Id.
120
Id.
121
The Court noted the Board “appeared interested only in whether [the witness] was an owner
of the company, and whether she was privy to any conversations between [the claimant] and [a
part-owner of the company].” Id.
-28-
if Hy-Point’s own witness had concluded her testimony; (2) ascertaining whether
she wanted to present any other evidence for the record; or , (3) giving the employer
“a real chance to present evidence or asking her a relevant question.”122 This Court
concluded the Board “failed to provide Hy-Point a meaningful chance to present its
own evidence or rebut [the claimant’s evidence] . . . the Board became exasperated
with [the claimant’s] ramblings and neglected its duty to hear both sides of the case
and reach a fair and impartial decision.”123
Unlike the Board in Hy-Point, here the IAB gave the employer a meaningful
opportunity to present evidence, make arguments, and question Ms. Gallagher.
Other than one sustained objection, all other objections by Ms. Gallagher’s counsel
were overruled. The Board can hardly be described as having appreciably limited
Walmart’s questioning of Ms. Gallagher. While the Board may have encouraged
Walmart’s counsel to “move on,” counsel continued to conduct her examination of
Ms. Gallagher as she saw fit, ended the examination on her own accord, and didn’t
ask any questions on re-cross.
Thereafter, Walmart entered Dr. Andrew J. Gelman’s deposition testimony
into evidence. Dr. Gelman was Walmart’s medical expert who testified in specific
detail about Ms. Gallagher’s medical record history and his several physical
122
Id. at *3.
123
Id.
-29-
examinations of Ms. Gallagher. Walmart’s counsel provided Dr. Gelman a list of
Ms. Gallagher’s medical providers.124 Dr. Gelman then reviewed Ms. Gallagher’s
medical records from 31 separate medical providers and detailed the contents of
those prior medical records.125 Responding to leading questions on direct
examination during the deposition, Dr. Gelman highlighted omissions and
discrepancies within and among the records.126 Under these circumstances, Walmart
was afforded the opportunity to ask Dr. Gelman about any of Ms. Gallagher’s
medical records it may have failed to ask Ms. Gallagher about during her testimony.
In the Decision, the Board referred to approximately 35 of Ms. Gallagher’s
medical records. Its Decision demonstrates that the Board considered the testimony
of Ms. Gallagher, Dr. Eskander, and Dr. Gelman. In short, the Board afforded
Walmart a full and fair opportunity to be heard. And the Court can identify no abuse
of discretion in the hearing conducted by the IAB—i.e. nothing that exceeded the
bounds of reason in view of the circumstances nor any Board action that ignored
recognized rules of law or practice so as to produce injustice or prejudice to Walmart.
124
See Dep. Tr. of Dr. Andrew J. Gelman, D.O. (marked as “Tab 6” in the IAB Record; hereinafter
“Gelman Tr.”), Walmart v. Gallagher, N21A-07-003 PRW, Aug. 13, 2021 (D.I. 5).
125
Id.
126
While the Board allowed Dr. Gelman’s testimony, it “disapprove[d]of the attorney testifying
during direct testimony through leading questions.” IAB Decision at 13, n. 1.
-30-
B. IMPLIED AGREEMENT FOR COMPENSATION CLAIM
In Walmart’s second argument, it contends the Board erred in finding an
implied agreement for compensation of an injury that was not in the express
agreements and final receipts between Walmart and Ms. Gallagher. Walmart says
it, as employer, reached an agreement with Ms. Gallagher as to compensation for
just certain limited injuries from the June 13, 2018 work incident. In Walmart’s
view, that settlement was a valid contract through which the parties agreed only that
Ms. Gallagher’s “injury and permanency in question related to a ‘lumbar strain.’”127
Walmart insists now that the Board “abused its discretion when it considered
extrinsic evidence (medical bills) to change the injury agreed upon by both parties
to ‘lumbar radiculopathy.’”128 This change, it is argued, impermissibly allowed the
Board to go beyond prior permanency determinations already agreed-to and to
improperly award additional compensation to Ms. Gallagher—that being the costs
of surgery approved by the Board.
Ms. Gallagher counters that the specific petition tried before the Board here
involved a permanent impairment of function that Walmart previously
acknowledged by entering into a written agreement but that Walmart now contends
127
Appellant’s Opening Br. at 27.
128
Id.
-31-
is “resolved.”129 And, Ms. Gallagher says, the Board found no implied agreement
as to radiculopathy via payment of Ms. Gallagher’s medical treatment to date, but
instead made its determination after examining all the hearing evidence and
concluding Dr. Eskander’s testimony more credible and persuasive than Dr.
Gelman’s.130
The Statement of Facts and the hearing transcript establish that the issue
before the IAB was whether Ms. Gallagher’s spinal fusion surgery was a
compensable procedure that was necessary because of the June 2018 work-related
incident at Walmart based on the then-available medical evidence.
When concluding its cross-examination of Ms. Gallagher, Walmart
questioned her about settling a permanency claim on September 14, 2020.131
Ms. Gallagher objected as to relevance.132 And Walmart responded thusly:
Walmart’s
Counsel: Part of [Ms. Gallagher] attorney’s argument is trying to
make some argument that these payments, and some
type of agreement has locked Walmart into [the]
inability to make any alterations or objections to that
agreement. And my response to part of that, if we are
going to go to closings, is to reflect what
[Ms. Gallagher], the nature and extent of the injury that
both [Ms. Gallagher] and her attorney, since she was
129
Appellee’s Answering Br. at 19.
130
Id. at 20-21.
131
Hr’g Tr. at 75.
132
Id.
-32-
represented, agreed to by reflecting what is on the
agreements and receipts signed by parties in this case.
Hearing Officer: Well, this—this hearing isn’t scheduled for challenging
the agreements that are signed. That—that’s not what
is at issue before the Board. Is that what you are trying
to do?
Walmart’s
Counsel: I’m not trying to challenge—
Hearing Officer: No, I’m asking a question—I’m asking. I—I mean, is
that what you are trying to do? I was—I was looking
through the file, so quite frankly, when you raised the
objection, I didn’t hear what the—what the question
was to—
Ms. Gallagher’s
Counsel: So, counsel wants to—wants to ask questions related to
the agreement and Receipt of Permanent Impairment
Benefit. The position that I have taken is that
Dr. Gelman’s opinion onto the resolution of the injury
is not appropriate as [Walmart] has already paid for and
acknowledged the last two and a half years of treatment,
and they have executed an Agreement as to a permanent
impairment in the amount of seven percent, to the
lumbar spine. (inaudible) without prejudice—
Walmart’s
Counsel: No, that’s not true.
Ms. Gallagher’s
Counsel: Okay. Well, then show an agreement that is not signed
—I mean that I have an agreement that is signed. So.
Hearing Officer: This isn’t—this is not the opportunity to challenge
agreements that are—we have these agreements. I am
looking at them. They are signed. That’s not even an
issue before the Board. That—that wasn’t even what
the petition was about. This isn’t the opportunity to
challenge an agreement saying that it’s not an
-33-
agreement, for whatever reason it might be. The issue
is—is regarding the surgery, and not trying to—
Walmart’s
Counsel: —the parties in this case have signed an agreement
indicating nature of injury is a lumbar strain, not a
lumbar spinal disk injury. And that is, the seven percent
permanency acknowledged was for a lumbar strain, not
a disk injury. That’s what the agreements reflect. I am
not trying to challenge the agreement. I am trying to
show what the parties agreed to, in this case.
Hearing Officer: Well, then you can just raise it that simply. I—I didn’t
hear what all this line of questioning is, but you can just
—actually just get to the point and raise it—that simply.
Walmart’s
Counsel: Okay. Well, then I would like the Board to take judicial
notice of the Agreements and Receipts in this case, both
for total disability and for permanency, which are
signed, with witness[es] from [Ms. Gallagher]’s
attorney’s office, as recently as September—October
timeframe, which reflected that the acknowledged
injury in this case is a lumbar strain, not a spinal injury,
not a disk injury. So. And with that, I conclude my case
—my questioning.133
Walmart later argued that the earlier permanency agreements confirm that
Ms. Gallagher’s Walmart-related injury was only “a lumbar strain. You don’t have
surgery for a lumbar strain.”134 In Walmart’s view, therefore, it could not be held
responsible for “a permanent ongoing surgical problem.”135 And so, insists Walmart,
133
Id. at 76-78.
134
Id. at 146.
135
Id.
-34-
the IAB abused its discretion by misconstruing its argument and misusing the
evidence of the prior agreement—in tandem with other evidence—to grant
additional compensation for the proposed surgery. But that’s not what the Board
did.
The complete record demonstrates that the Board examined, inter alia, the
very documents—the September and October 2021 agreements and treatment
receipts—Walmart asked that it take judicial notice of and consider when deciding
this compensability matter. The agreements alone spell out that Ms. Gallagher’s
June 13, 2018 accident from “stacking sales floor/[at Walmart’s] premises” caused
a “lumbar strain” and also describes—in two places—that the result is a “7%
permanent disability to the lumbar spine.”136 No doubt, this was but one bit of
competent evidence the Board considered when it determined whether the admitted
permanent disabling injury now required further compensable surgical treatment.
Again, this Court does not sit as a trier of fact with authority to weigh the
evidence, determine questions of credibility, and make its own factual findings and
conclusions.137 Rather, the Court must take “due account of the experience and
specialized competence of the Board and of the purposes of our workers’
136
Office of Workers’ Compensation Agreement as to Compensation (marked as “Tab 5” in the
IAB Record; hereinafter “Compensation Agreement”), Walmart v. Gallagher, N21A-07-003
PRW, Aug. 13, 2021 (D.I. 5).
137
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
-35-
compensation law.”138 The Court can discern no abuse of discretion nor any clear
error of law in the Board’s reliance, in part, on the very documents Walmart
proffered. In turn, the Court must affirm the IAB’s ruling that additional
compensation was now due for the surgical treatment sought.139
CONCLUSION
The Board afforded Walmart due process during the hearing to determine
whether Ms. Gallagher’s planned surgical treatment was compensable. Walmart has
failed to demonstrate that the Board excluded relevant, material and competent
evidence from the hearing. Nor did the Board impede Walmart’s ability to fully
develop the record, to offer evidence in support its preferred defense(s), or to cross-
examine Ms. Gallagher. Indeed, the Board acknowledged that the record Walmart
developed did call into question Ms. Gallagher’s credibility.140 But in the end, after
weighing all the evidence, the Board determined that additional compensation was
due.
138
Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993).
139
Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006).
140
IAB Decision at 25. The Board’s Decision acknowledged concerns with the credibility of
Ms. Gallagher but concluded that any credibility concerns were not fatal to her claim. Specifically,
“the Board recognize[d] that Ms. Gallagher presented with credibility issues[,] but they were not
such as to cause her to fail to meet her burden of proof.” Id.-36-
The Board’s Decision is supported by substantial evidence, free from legal
error, and was not infected by any abuse of the Board’s discretion. And so, the
Board’s Decision must be AFFIRMED.
IT IS SO ORDERED.
/s/ Paul R. Wallace
Paul R. Wallace, Judge
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