The Pinocchio Syndrome: IAB remains sole arbiter of credibility and virtual hearings do not reduce deference

Today’s case is an appellate decision from our Superior Court - Corey Berry v. MITRA QSR KNE LLC, dba Kentucky Fried Chicken, K20A-08-002 JJC (Feb. 16, 2021) (Clark, J.).  I don’t know what it is about The Blue Hen State and chickens these days, but this is yet another victory for the purveyor of some mighty fine southern fried chicken, and another ruling coming to us from Slower Lower.  Succinctly stated, the claimant appealed a loser of an IAB ruling, finding that his work-related injury was not a surgically-indicated myelopathy, that said injury had “resolved”, and that claimant was not credible.  In fairness to claimant, who enjoyed the occasional date with “Proud Mary”, much of the entitlement issue focused on the medicine and in this particular case, Dr. Zaslavsky was no match for Dr. Piccioni (once again demonstrating that “Slower Lower” is a term of endearment and not a description of ability).   See IAB ruling — Corey Berry v. MITRA QSR KNE LLC, dba Kentucky Fried Chicken, Hr’g 1485440 (July 9, 2020).

And to borrow from Caroline’s summary of what went down,  

On appeal, Claimant argued:

(1) the IAB erred when finding that Mr. Berry’s marijuana use made him less credible;

(2) the IAB improperly relied on common experience when it inferred that Mr. Berry’s neck pain could have stemmed from playing video games;

(3) it erred when finding him less credible because he rejected injections on one hand, while expressing a willingness to undergo an invasive neck surgery on the other; 

(4) it mistakenly found that Mr. Berry first mentioned his neck symptoms on May 7, 2020 because he had mentioned them earlier on May 1, 2020.

Additionally, Claimant contended that the Court owed the IAB less deference regarding its credibility findings because the IAB conducted a virtual hearing — the Court shut down this argument immediately. 

What makes this case timely and relevant is yet another reference to the use of marijuana to self-medicate, its discussion of the medical hallmarks of myelopathy, and this is possibly the first case to formally address the concern that most of us have (but are reluctant to voice) that a virtual hearing is less than an ideal venue where credibility assessments are at stake. (Of note, there were no technical deficiencies at the virtual hearing below.)  Nonetheless, the Superior Court was having none of it, in terms of the virtual hearing criticisms and stated that “these temporary safety measures do not change the fact that the IAB is the only entity suited to be the finder of fact.”

A big shout out to my daughter for bringing this gem of a ruling to my attention…. But frankly, I’m a Chik-Fil-A girl, myself!

Irreverently yours,

Cassandra Roberts & Caroline Kaminski