What Do You Think: Did Court Exceed 'Bounds of Reason' Regarding Bus Driver Injured by Passenger Assault?

Dover, DE (WorkersCompensation.com) – After getting roughed up by a passenger on the job, a bus driver’s fight was just beginning.

As the Delaware Supreme Court recently explained, a fight over doctors, medical evidence, and credibility brewed when the driver sought benefits.

The driver experienced injuries while she was working as a paratransit driver. At a scheduled stop, a passenger assaulted another rider sitting in front of him. As required by her job, the driver got off the bus with the passenger, at which point the passenger assaulted her. When the driver attempted to get back on the bus, the passenger punched her repeatedly in the face, neck, and head. The driver fought back and eventually fell to the ground. After the driver fell, the passenger continued to beat her.

As a result of her injuries, the driver received medical treatment from three different doctors. The driver saw the first doctor 43 times, and eventually, this doctor referred the driver to the second doctor. The driver reported to this doctor that she had arm pain that was “like crushed glass.”

Following treatment with this doctor, the driver rated her pain at zero on a 10-point scale, and she was referred to a third doctor. This doctor performed surgery on the driver. After the surgery, the driver was placed on total disability for five months.

The driver filed petitions to determine additional compensation due related to the incident, seeking payment of medical expenses, total disability benefits, and acknowledgement of the compensability of the surgery.

At hearing, the Industrial Affairs Board excluded the surgeon’s medical records in determining that the driver did not establish that the surgery was related to the at-work incident she experienced when the passenger assaulted her.

The board took issue with the surgeon’s credibility due to a pending disciplinary matter. Additionally, the employer’s medical expert refused to answer questions related to the surgeon, also because of the disciplinary charges against the surgeon, which related to allegations that the surgeon fraudulently submitted bills to insurance carriers.

The driver appealed to court.

In Delaware, the board can disregard evidence so long as doesn’t amount to an abuse of discretion, which is when the board’s decision exceeds the bounds of reason in the circumstances.

Did the court’s not allowing the surgeon’s records about the driver exceed the bounds of reason?

A. Yes. It was improper for the employer’s expert to determine that he did not have to testify about the medical records.

B. No. Given the surgeon’s credibility issues, his records could not be relied on in the driver’s case.

If you chose A, you agreed with the court in Zayas v. State of Delaware, No. 232, 2021 (Del. 03/07/22), which reversed and remanded the board’s decision. The court explained that the evidence at issue was relevant and admissible, so excluding it and permitting the expert to pass on commenting on it reflected an “internal inconsistency and illogical process.”

“The board’s errors were not harmless as the dueling experts were central to the driver’s case,” the court reasoned.

This feature does not provide legal advice.

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