Tuesday, March 28, 2017

Lessons in Discretion, Credibility and Facebook

The Delaware Superior Court issued an interesting decision about a year ago in MacFayden v. Total Care Physicians, Case No. N15A-05-001 ALR. 

The employee in this case worked for the employer for about ten years. She was injured at work in 2011 and was entitled to workers' compensation. She was originally diagnosed with "carpal tunnel syndrome (“CTS”) and soon thereafter," with "cubital tunnel syndrome, and de Quervains tenosynovitis." She underwent injections and four surgical procedures. She enjoyed some relief and briefly returned to work for the employer, but was later excused from work again, secondary to pain.

In 2014, she filed petitions seeking additional benefits including compensability of "complex regional pain syndrome (“CRPS”) of the upper left extremity," payment of temporary indemnity benefits, and assignment of a "twenty-four percent (24%) permanent impairment (PPI) to the upper left extremity." 

The case proceeded to trial before the Delaware Industrial Accident Board (“Board”) in March 2015. The Board ruled in the employee's favor regarding the compensability of CRPS and temporary indemnity claims, but denied her claim for recognition of the 24% PPI. The Board instead "awarded Claimant a four percent (4%) PPI. The employee appealed the PPI award. 

A critical part of the appeal was the recovering worker's objection to the employer's evidentiary use of "photographs taken from Claimant’s public Facebook profile as impeachment evidence without prior notice to Claimant." But, the case also relies heavily on determinations of credibility. Credibility is a subject that is often worthy of discussion. 

In reaching its conclusions regarding PPI, the Board considered the opinions of two physicians, one certified in physical medicine and rehabilitation and one certified in orthopedic surgery. The Court explained that its review in such cases was a competent substantial evidence analysis, similar to Florida's: "if substantial evidence in support of the Board’s decision exists, then the Board’s decision stands, even if the Court would reach a contrary conclusion." The Delaware Court declines to "reweigh" the evidence. 

The Court also explained that it deferred to discretionary decisions by the Board's "specialized competence and experience." Therefore decisions of the Board are not "disturbed on appeal unless it is based on 'clearly unreasonable or capricious grounds.'” This is deferral to expertise that is not seen in all jurisdictions. The Court explained that it affirmed the 4% PPI award because the Board was presented with "competing experts," and adopted "one medical opinion over another," and that "constitutes substantial evidence for purposes of appellate review." 

The Board had explained that it was persuaded by the credibility of the evidence. Often the discussion of credibility is applied to the person rendering the testimony, that is whether the witness is credible. However, analysis can be about the evidence itself. The analysis described here concluded that the 24% "rating was too high in relation to Claimant’s actual functional limitations." The Board concluded that the assigning doctor's process in determining the PPI "seemed to focus more on the complexity of" surgical procedures she had undergone instead of on the "actual loss of use" of her extremity. 

The Board also took issue with the physician's conclusion that the recovering worker had a "Class II category" impairment. It concluded that the physician "failed to adequately explain how he came to such conclusions." Credibility may be an issue that is more about explaining how conclusions were reached than about those conclusions themselves. This was discussed in Experts and Credibility and Interesting Science and the Litigation Process

It is notable that the Board said the other physician's examination revealed "no objective findings" beyond surgical scars. That physician found "normal range of motion" and "full flexibility," with no signs of discomfort. The recovering worker told that physician "she was not having any difficulty performing her daily activities." It is interesting that the Board noted it did not find the second physician's opinion “all that convincing either,” because "he provided little explanation for his rating."

Therefore, perhaps the critical point in the Board analysis was not which doctor provided more explanation, but which provided better explanation. And, a critical lesson is that trial judges are often presented evidence that is less than ideal. It is not the role of the trial judge to wish for or pursue better evidence. The trial judge is burdened with making the best decision possible based on the evidence that the parties to a case have presented at trial. Even if evidence is not "all that convincing," it may nonetheless be more convincing than the other evidence presented. 

The Delaware Court next reviewed the Board's decision to permit the employer "to use Claimant’s public Facebook photographs of Claimant holding her grandson with her injured arm and hand as impeachment evidence." There was no question here that the employer "failed to comply with the notice requirement" of the procedural rules. The recovering worker complained that she was thus impeached with evidence that was a surprise at trial, and she asked the Court to reverse on those grounds. 

Florida practitioners have been reminded again recently that compliance with the rules is often not a simple analysis of "did you" or "didn't you" follow the rules. In Boyle v. J.A. Cummings, Case No. 1D16-3076 (February 16, 2017), the Florida First District Court of Appeal reversed a trial judge's decision to exclude evidence under "Florida Administrative Code Rule 60Q-6.113(8), which prohibits discovery within ten calendar days of the final hearing." In Boyle, a party took a deposition within that time, without "prior approval . . . for good cause shown." The trial judge enforced the rule and excluded the evidence. 

The First District Court In Boyle relied on Burgess v. Buckhead Beef, 15 So. 3d 25, 27 (Fla. 1st DCA 2009), and said that "this court decidedly does not condone violations of deadlines contained in pretrial orders." But, it reminded that the appropriate analysis goes beyond whether there was a violation, and includes "a case-specific determination as to whether admission of the evdence would result in actual procedural prejudice to the objecting party." More succinctly stated, unless there is actual prejudice, then deadline violations actually are systematically condoned. 

The Delaware employee objected to evidence because the employer did not follow the rules. She argued "the admission of Claimant’s Facebook images was prejudicial," and urged reversal. The Court explained that the images were not "admitted into evidence," but were "utilized for impeachment purposes." The Board allowed impeachment "because Claimant testified that she cannot hold her grandchildren or even a teacup with her injured arm." The "photographic evidence was to the contrary." 

As impeachment, the Board gave "the photographs lesser weight than if they were introduced as substantive evidence." Delaware law requires the Board to follow the "rules of evidence applicable to the Superior Court of the State," but "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." The Delaware Board has significant discretion (flexibility) in application of evidentiary rules, particularly where “fairness so requires.” 

The Delaware Court acknowledged that there are published cases in which the Board rule requiring pretrial disclosure of photographs was strictly enforced, and which enforcement was affirmed on appeal. But, the Court explained, the strict enforcement of rules in one case does not mean that strict enforcement would be appropriate in all cases. This is because the Board has discretion. 

Within that discretion, the Court concluded, it was not “clearly unreasonable or capricious” of the Board to consider the photographs despite the admitted violation of the Board's evidence disclosure rule. The Court held that the "Board was well within its authority to permit Employer to use Claimant’s Facebook photos as impeachment evidence in this context." It said this did not exceed "the bounds of reason in view of the circumstances,” and it did not "produce injustice." The Court concluded that "fairness so required that the Employer could impeach Claimant, including with photographs of Claimant holding her grandchildren with her injured arm."

These are pertinent reminders of the effects of rules. Enforcement may hinge more on actual prejudice resulting than on the rule language itself. Violation of a rule might result in excluding evidence completely, or might merely limit the use of evidence, impeachment rather than admission as substantive evidence. The persuasiveness of evidence may be effected by how well conclusions are described and explained. And, published photographs or documents may prove damaging as impeachment evidence.

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