Mendoza v. Talarico Building Services, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SANTIAGO MENDOZA, )
)
Claimant-Appellant, )
v. )
) C.A. No. N22A-05-003 VLM
TALARICO BUILDING SERVICES, )
INC., d/b/a SERVICE MASTER )
CLEANING, )
)
Employer-Appellee.

ORDER

Submitted: December 6, 2022
Decided: March 30, 2023

Upon Consideration of Appellant’s Appeal of the Decision of the Industrial
Accident Board, AFFIRMED.

William R. Stewart, III, Esquire, Gary S. Nitsche, Esquire
Nitsche & Fredericks, LLC, Wilmington, DE. Attorneys for Appellant.

Maria Paris Newill, Esquire,
Heckler & Frabizzio, Wilmington, DE. Attorney for Appellee.

MEDINILLA, J.
 INTRODUCTION

Appellant Santiago Mendoza (“Claimant”) appeals a decision of the Industrial

Accident Board (“Board”) that denied his Petition to Determine Additional

Compensation Due and granted Employer’s Termination Petition to set aside the

parties’ original agreement for workers’ compensation benefits under Rule 60(b)1

upon a finding that he engaged in fraud in pursuit of said benefits. Upon

consideration of the arguments, submissions of the parties, and the record in this

case, the Board’s decision is AFFIRMED.

FACTUAL AND PROCEDURAL HISTORY2

1. Claimant is a non-English speaking individual,3 who has lived in the

United States for almost thirty years. 4 Over twenty years ago, in 2001, he was

involved in a work accident in New York, where a 60-pound boulder struck him on

the head, causing him to lose consciousness.5 As a result of that accident, Claimant

did not work and instead received compensation for total disability from 2001 until

1
Del. Super. Ct. Civ. R. 60(b).
2
The recitation of the facts is based upon the submission of the parties, including the transcript
from the Industrial Accident Board’s hearing on March 25, 2022.
3
At all relevant times, Claimant testified with the assistance of a court-certified interpreter and
was represented by counsel.
4
Industrial Accident Board’s Hearing Transcript, IAB No. 1476099, at 17 (Del. I.A.B. Mar. 25,
2022) [hereinafter IAB Tr.].
5
Id., at 18.
2
2007.6

2. From 2007 through 2015, Claimant did not work. 7 In 2016, he

requested his primary care physician issue him a total disability slip, and Claimant

reported his occupation as “disabled” on paperwork completed for St. Francis

Hospital.8 Claimant also acknowledged to the Board that he receives ongoing social

security benefits.9

3. In 2017, Talarico Building Services, Inc., d/b/a Service Master

Cleaning (“Employer”) hired Claimant as a floor technician helper, which required

repeated bending, twisting, and lifting. 10 Claimant did not report any physical

restrictions or disabilities in his application for employment.11

4. On July 16, 2018, Claimant suffered a slip-and-fall while cleaning and

buffing floors, where he bent down to plug in a piece of machinery when he slipped

and fell, landing on his buttocks.12 Claimant’s boss witnessed the fall and helped

him up to continue working, and, within twenty minutes of the fall, Claimant

complained of experiencing blurry vision, dizziness, nausea, and pain in both his

6
Industrial Accident Board’s Decision, IAB No. 1476099, at 4 (Del. I.A.B. Apr. 1, 2022)
[hereinafter IAB Decision].
7
Claimant represented in discovery that he was not working from 2007 to 2015 but later testified
at the IAB hearing that he worked during this period occasionally for cash. IAB Tr., at 26–28.
8
IAB Decision, at 5.
9
Id., at 6.
10
IAB Tr., at 61.
11
Id., at 62.
12
IAB Decision, at 3.
3
back and neck.13 Employer acknowledged a compensable soft-tissue injury to his

neck and back, 14 and paid worker’s compensation benefits, including medical

expenses.15

5. One month after his fall, in August of 2018, Claimant was involved in

a motor vehicle accident, which required ambulance transport for medical

treatment.16 The chief complaint made by Claimant at that time was “neck pain.”17

Diagnostic testing, including a cervical CT scan, was performed, showing foraminal

stenotic changes at C5–6 and C6–7 (degenerative in nature).18

6. Three years after his fall, on October 11, 2021, Claimant underwent a

three-level cervical fusion performed by Dr. James Zaslavsky, a board-certified

orthopedic surgeon.19 Claimant filed a Petition for Additional Compensation Due

seeking to have the Board determine that the surgery was reasonable, necessary, and

causally related to the July 2018 work accident, and for the payment of compensation

for the period of recovery from the surgery.20

7. In August 2021, Employer opposed Claimant’s Petition and sought a

13
IAB Decision, at 3.
14
Id., at 2.
15
Id.
16
Dr. Gelman’s Dep., at 51.
17
Id.
18
Id., at 51–53.
19
IAB Decision, at 2.
20
Id.
4
determination that the surgery was unrelated to the July 2018 injury.21 Employer

further filed a Petition for Review, seeking to have the Board review and set aside

the parties’ original agreement as to the compensability of Claimant’s injuries based

on assertions of fraud, and to bar Claimant from future filings against Employer.22

8. On March 25, 2022, the Board held a hearing on both Petitions. The

Board heard live testimony from Claimant and deposition testimony from his expert,

James Zaslavsky, D.O.23 Employer presented live testimony from an investigator, a

Human Resources Administrator, and a Senior Claims Specialist Adjuster, as well

as deposition testimony from its medical expert, Dr. Andrew Gelman, D.O., also

board-certified.24

9. On April 1, 2022, the Board issued a 37-page decision.25 As to the

Claimant’s Petition for Additional Compensation Due, the Board denied the

compensability of the cervical surgery and determined that Claimant failed to meet

his burden of establishing the compensability of the cervical surgery.26 It accepted

Dr. Gelman’s opinion as “the more informed, factually accurate and persuasive than

that of Dr. Zaslavsky based largely on Claimant’s own failure to honestly disclose

21
IAB Decision, at 2.
22
Id.
23
IAB Tr., at 1–2.
24
Id.
25
See IAB Decision.
26
Id., at 33–34.
5
his extensive history of injury and treatment, and Dr. Zaslavsky’s inability to

accurately appreciate it from a record review alone. . . .” 27 The Board also

considered that Claimant had not reported the subsequent motor vehicle accident to

his treating surgeon, nor provided an accurate report of his own medical history.28

10. As to Employer’s Petition for Review, the Board found that the record

was sufficient to justify its intervention on the basis of fraud. 29 The Board

considered Employer’s two-fold request: that the Board re-open and strike the

agreement as to compensability and dismiss Claimant’s petition for additional

compensation as well as any future claims that Claimant may file with prejudice.30

Because there was no dispute that Claimant suffered a fall, as witnessed by another

individual, the Board declined to preclude future claims and noted that there was

limited testimony before it as to a separate issue of Claimant’s low back.31 Instead,

the Board determined that it was appropriate to strike the underlying agreement

accepting the compensability of a lumbar and cervical spine strain and sprain, but

allowed Claimant 60 days to file a new petition to attempt to establish

compensability as to any other issues he believed were compensable against

27
IAB Decision, at 33–34.
28
Id., at 11.
29
Id., at 34.
30
Id., at 36.
31
Id.
6
Employer. 32 The Board further credited Employer for all monies expended on

benefits to Claimant based on the prior agreement.33

11. On May 4, 2022, Claimant filed a timely notice of appeal with this

Court. On September 16, 2022, Claimant filed his Opening Brief. On October 17,

2022, Employer filed its Answering Brief, and on November 21, Claimant filed his

Reply Brief. This Court was assigned this appeal on December 6, 2022. This matter

is ripe for decision.

PARTIES’ CONTENTIONS

12. Claimant contends that the Board erred in both finding Employer’s

expert more credible, and in its legal application of the facts on Employer’s Petition

for Review as to the allegations of fraud.34 Employer maintains that the Board’s

decision is free from legal error and supported by substantial evidence as to both

petitions.35 It argues the Board properly considered and accepted one expert opinion

over the other.36 And that the decision was based not only on Dr. Gelman’s opinion,

but also on various factors, including Claimant’s incredulous inability to recall his

32
On May 12, 2022, Claimant filed a new Petition to Determine Compensation Due with the
Board; that Petition is stayed pending the outcome of this appeal. Claimant-Below/Appellant’s
Opening Br. on Appeal, at 3 [hereinafter Claimant’s Opening Br.].
33
IAB Decision, at 37.
34
Claimant’s Opening Br., at 11–15.
35
Employer-Below/Appellee’s Answering Br., at 28–32 [hereinafter Employer’s Answering Br.].
36
Id. at 32–36.
7
own medical history as well as Dr. Zaslavsky’s scant and inaccurate knowledge of

the same.37

STANDARD OF REVIEW

13. On an appeal from the Board, this “[C]ourt must determine whether the

findings and conclusions of the Board are free from legal error” and whether they

are “supported by substantial evidence in the record.” 38 Questions of law are

reviewed de novo.39 Substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”40 “A decision on a motion

to reopen rendered pursuant to Superior Court Civil Rule 60(b) by the Board will be

set aside on appeal only for an abuse of discretion.”41

DISCUSSION

14. Under the Worker’s Compensation Act, employers are required to pay

for medical “services, medicine and supplies” that are reasonable and necessary and

37
Employer’s Answering Br., at 18–22.
38
Wilson v. Unemployment Ins. Appeal Bd., 2011 WL 3243366, at *2 (Del. Super. July 7, 2011)
(citing Unemployment Ins. Appeal Bd. v. Martin, 431 A.2d 1265, 1266 (Del. 1981); Pochvatilla v.
United States Postal Serv., 1997 WL 524062, at *2 (Del. Super. June 9, 1997); 19 Del. C. §
3323(a)).
39
Kelley v. Perdue Farms, 123 A.3d 150, 152–53 (Del. Super. 2015) (citing Vincent v. E. Shore
Markets, 970 A.2d 160, 163 (Del. 2009)).
40
Byrd v. Westaff USA, Inc., 2011 WL 3275156, at *1 (Del. Super. July 29, 2011) (quoting
Oceanport Industries Inc., v. Wilm. Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994)).
41
Barber v. F.W. Woolworth's Co., 1996 WL 769221, at *3 (Del. Super. Nov. 15, 1996).

8
are causally related to an employee’s compensable injury. 42 Ordinarily, this

determination boils down to the battle of the experts. But here, this case also

involves credibility determinations of Claimant. Accordingly, this Court does not

“weigh the evidence, determine questions of credibility, and make its own factual

findings and conclusions.”43 The Board exclusively holds those functions,44 and

this Court “must uphold the decision of the Board unless the Court finds that the

Board’s decision ‘exceeds the bounds of reason given the circumstances.’”45

Claimant Failed to Meet Burden for Additional Compensation

15. The Board first offered a full explanation of why it accepted and

rejected the respective medical opinions, including the bases of the opinions from

Drs. Zaslavsky and Gelman. 46 Dr. Zaslavsky testified that he initially met with

Claimant in 2019, about one year after his 2018 slip and fall. 47 According to

Claimant, he landed on his buttocks, after which he developed back and right leg

pain. 48 When seen again in March of 2020, Claimant’s findings showed a

42
See 19 Del. C. § 2322(b); Nobles-Roark v. Burner, 2020 WL 4344551, at *2 (Del. Super. July
28, 2020) (“Accordingly, the IAB’s inquiry was governed . . . by the Workers’ Compensation Act,
which requires employers to pay for reasonable and necessary medical ‘services, medicine and
supplies’ causally connected with an employee's compensable workplace injury.”).
43
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965); see also Christiana Care Health Servs.
v. Davis, 127 A.3d 391, 394 (Del. 2015).
44
Noel-Liszkiewicz v. La-Z-Boy, 68 A.3d 188, 191 (Del. 2013) (citations omitted).
45
Elzufon v. Lewis, 2023 WL 152235 (Del. Super. Jan 10, 2023) (citations omitted).
46
See IAB Decision, at 29–34.
47
Id., at 7.
48
Id.
9
progressive worsening of his cervical condition and issued Claimant a no-work slip

for total disability.49 Dr. Zaslavsky also recommended a cervical discectomy and

fusion to remove the damaged discs caused by severe stenosis, performed in October

of 2021.50

16. While it is true that a treating physician may be afforded deference,51

“[w]hen conflicting expert opinions are each supported by substantial evidence, the

Board is free to accept one opinion over the other opinion.” 52 Accordingly, the

Board found that “Dr. Zaslavsky’s belief that Claimant developed right upper

extremity symptoms for the first or even one of the first times after this slip and fall

[wa]s not factually accurate [n]or reliable as a basis to establish causation herein.”53

Instead, it considered Dr. Gelman’s opinion, memorialized in 82 pages of deposition

testimony.54

17. Dr. Gelman examined Claimant twice.55 During his first examination

on January 23, 2019, Claimant neither provided any information as to his past

medical providers,56 nor did he report that he had been involved in an auto accident

49
IAB Decision, at 7.
50
Id., at 9.
51
See Diamond Fuel Oil v. O’Neal, 734 A.2d 1060, 1065 (Del. 1999).
52
Standard Distributing, Inc. v. Hall, 897 A.2d 155, 158 (Del. 2006).
53
IAB Decision, at 32.
54
See Dr. Gelman’s Dep.
55
Id., at 6.
56
Id., at 55.
10
after the 2018 slip-and-fall.57 Based on the information provided, Dr. Gelman found

that even if Claimant had suffered cervical injury from the 2018 work slip-and-fall

accident, it would have been a soft-tissue strain/sprain, which had resolved soon

thereafter.58

18. During Dr. Gelman’s second examination of Claimant on July 28,

2021,59 Claimant acknowledged his 2001 accident but suggested that it caused only

a right shoulder injury.60 He denied any other accidents or injuries other than that

2001 accident.61 Dr. Gelman again found that Claimant’s cervical and lumbar injury

would not have been anything more serious than soft tissue strain/sprain, which had

resolved. 62 In reaching this conclusion, Dr. Gelman explained that he ignored

Claimant’s subjective medical history as it was not “credible,”63 and he only took

Claimant at “face value.”64

19. In preparation for the deposition, Dr. Gelman also reviewed the lengthy

history of Claimant’s medical records from 2014 to 2019.65 Relying on Claimant’s

extensive history of injuries and medical records, and the doctor’s own

57
Dr. Gelman’s Dep., at 58.
58
Id., at 56.
59
Id., at 60.
60
Id.
61
Id., at 61.
62
Id., at 62.
63
Id., at 63.
64
Id., at 64.
65
Id., at 7–53.
11
examinations,66 Dr. Gelman testified that the three-level cervical fusion performed

by Dr. Zaslavsky in October of 2021 was not causally related to the 2018 work

accident; rather, the surgery was “elective.”67 The Board accepted his opinion.

20. In addition to the Board’s ability to choose one medical expert opinion

over the other,68 our Supreme Court has also held that the Board may accept “[the

expert’s] testimony, as enhanced by the employer’s other medical testimony and by

their evaluation of the claimant’s credibility. As the triers of fact, they were entitled

to do just that.”69

21. The Board found Claimant incredulous.70 Claimant confirmed having

seen a host of physicians over the years from prior work-related injuries, but claimed

he was not informed that—on three separate occasions—his medical records

mentioned the need for surgical consultations. 71 The Board did not accept his

testimony as true. Claimant denied any neck problems prior to July of 2018 despite

having undertaken cervical injections in 2002, 72 and medical records from two

treating physicians that documented he was permanently and totally disabled as it

66
Dr. Gelman’s Dep., at 7.
67
Id., at 64–66.
68
Glanden v. Land Prep, Inc., 918 A.2d 1098, 1102 (Del. 2007) (citing DiSabatino Bros. v.
Wortman, 453 A.2d 102, 106 (Del. 1982)); see also Bullock v. K-Mart Corp., 1995 WL 339025,
at *3 (Del. Super. May 5, 1995).
69
DiSabatino Bros., 453 A.2d at 106.
70
IAB Decision, at 29–30.
71
Id., at 4.
72
IAB Tr., at 21.
12
related to his 2001 work accident, including to his neck.73 And third-party litigation

taken on his behalf documented claims that he had suffered chronic neck pain with

a history of compressed discs and pain down his arms and into his hands.74 On this

record, it was within the Board’s purview to give Claimant’s testimony little to no

weight.

22. In sum, Claimant’s argument is without merit. First, it is inaccurate to

state that “Dr. Zaslavsky was clear that Claimant ha[d] a year of cervical spine

issues, but hit [sic] was this work accident that caused the accelerated need for his

surgery.”75 Claimant had more than a year of cervical spine issues as highlighted by

the Employer and the Board. Second, the Court is not persuaded by Claimant’s

suggestion that the subsequent motor vehicle accident and surgical references in the

Claimant’s prior medical records were merely “red herrings.” 76 Both were fair

considerations on the issues of compensability and causation before the Board.

23. The Board had substantial evidence to rely upon Dr. Gelman’s opinion

that the surgery was not related to the work accident of July 2018, and thus not

compensable. There is no basis to disturb the Board’s decision as it is supported by

substantial evidence.

73
IAB Decision, at 32.
74
IAB Tr., at 22.
75
Claimant’s Opening Br., at 14.
76
Id.
13
 Employer Established Burden for Review and Relief Under Rule 60(b)

24. The Court now turns to Claimant’s argument that the Board erred in its

findings under Superior Court Civil Rule 60(b), which provides relief from a

judgment due to “fraud, misrepresentation or other misconduct of an adverse

party.”77 Here, the Board considered Employer’s Petition for Review to re-open the

agreement, “akin to a motion to re-open a prior award . . . .”78 Applying the proper

Rule 60(b) standard,79 the Board determined Employer had met its burden,80 and

afforded relief.81

25. Claimant does not dispute that the Board properly considered

Employer’s request under Rule 60(b). Instead, this Court is asked to focus on

whether the Board properly considered the elements of reliance and damages in

finding fraud.82 He argues that (1) Employer did not establish reliance on Claimant’s

false representations because Dr. Gelman concurred with a finding that supported

77
Claimant’s Opening Br., at 11 (citing Super. Ct. Civ. R. 60(b)).
78
IAB Decision, at 34.
79
Potts v. State, 2002 WL 555065, at *1 (Del. Super. Apr. 11, 2002) (citing Barber v. F.W.
Woolworth's Co., 1996 WL 769221, at * 4 (Del. Super. Nov. 15, 1996)).
80
See id., at *1 (citation omitted) (“The burden is on the movant to establish the basis of relief
[under Rule 60(b)].”).
81
IAB Decision, at 35 (“The Board . . . is satisfied that the present record is sufficient to justify
Board intervention on the basis of fraud.”).
82
Id. (citing Lord v. Sauder, 748 A.2d 393 (Del. 2000)) (“A party claiming fraud must establish
hat [sic] the deceiver made a false representation, that the deceiver knew they made a false
assertion or acted with a reckless indifference to the truth; there was an intent to deceive the other
party; the other party acted in justifiable reliance upon the representation and damages resulted as
a result of the reliance.”).
14
the initial agreement for workers’ compensation benefits acknowledging an injury

from the 2018 slip-and-fall, and (2) Employer did not suffer damages because

Employer stopped making payments after 2019, consistent with when Dr. Gelman

opined Claimant’s injury had resolved.83 Both are without merit.

26. Claimant’s first contention is that there was no justifiable reliance.

More specifically, “no reliance of significance because what they did is what carriers

do,” and that the Employer’s failure to further investigate was simply “buyer’s

remorse,” such that Employer “in this circumstance did not use those protections,

that is now not [Claimant’s] burden to carry.” 84 This was not buyer’s remorse.

27. On de novo review, this Court finds that the Employer relied on material

misrepresentations that led the Employer to both hire Claimant and enter into an

initial agreement with him. Employer presented evidence that it would not have

hired Claimant if he had been truthful about his medical conditions,85 nor would it

have accepted Claimant’s workers’ compensation claim had it been informed about

his medical history and prior diagnoses.86

28. Claimant’s next claim that Employer suffered no damages because it

only paid out a portion consistent with Dr. Gelman’s opinion misses the mark.

83
Claimant’s Opening Br., at 11.
84
Claimant’s closing argument, IAB Tr. 134–35 (emphasis added).
85
IAB Decision, at 36.
86
Id.
15
Although the Board did not explicitly address the issue of damages, in finding for

Employer—including but not limited to crediting it for past benefits paid—this

Court may infer that the Board considered damages in its decision. 87 Thus, the

Board did not abuse its discretion when it determined to re-open the agreement and

set it aside.88

29. Furthermore, although the Board found fraud under Rule 60(b)(3), this

Court may affirm on the basis of a different rationale than that of the Board.89 Even

in the absence of fraud, Rule 60(b)(3) provides relief from a final judgment due to

“misrepresentation or other misconduct of an adverse party.”90

30. Here, the record is replete with findings from the Board that Claimant

made material misrepresentations regarding Claimant’s past medical history, with

his own treating physicians, including Dr. Zaslavsky, as well as the Human

87
See Chrysler Corp. v. Alston, 702 A.2d 925, 1997 WL 597120, at *2 (Del. Sept. 22, 1997)
(Table) (“[W]hile the [Industrial Accident] Board did not explicitly state in its decision that there
was fraud, this conclusion is implicit in the Board's finding . . . . We affirm the Superior Court's
conclusion that a determination of fraud can be drawn from the facts found by the Board.”).
88
See Potts, 2002 WL 555065, at *1 (“The Board’s decision on a motion to reopen will be set
aside on appeal only for an abuse of discretion.”).
89
Chrysler Corp., 702 A.2d 925, 1997 WL 597120, at *2 (citing Breeding v. Contractors-One-
Inc., 549 A.2d 1102, 1105 (Del. 1988)) (“In affirming a decision of the [Industrial Accident]
Board, the Superior Court may provide legal reasoning different from that of the Board, so long
as the Superior Court does not fall ‘into the error of weighing the evidence, determining questions
of credibility and making factual findings and conclusions.’”).
90
Del. Super Ct. Civ. R. 60(b)(3).
16
Resources Administrator, the Senior Claims Specialist Adjuster, and Dr. Gelman.91

In noting its bases for its ruling, the Board determined that:

[Claimant] failed to provide the information when there were
interpreters used, when there were not interpreters used, when
the forms…were in English…[and] in Spanish; the one
universal truth seems to be that Claimant was intent on not
providing the details of his ongoing cervical condition to
anyone. He continued this pattern of omission and explicit
deceit in his specific reports to the insurance adjuster in this
matter . . . .92

He was similarly evasive in his communications or lack there of
[sic] with the human relations representative from Employer, the
Spanish speaking Kelly Navarrete, whose uncontroverted
testimony herein is that she was working to help Claimant return
to work in positions identified to accommodate his physical
limitations. . . .93

Claimant, without explanation as to why he behaved as such, has
admitted that he was dishonest in his discovery responses to
Employer’s counsel because despite initially indicating he was
unemployed from 2007-2015, he admitted herein that he worked
for several employers, often for cash, throughout this time
period. In short, the Board finds it difficult to reconcile or find
credible almost anything that Claimant said. . . .94

The Board, finding Claimant’s conduct herein as it relates to
blatant lies and equally blatant omissions, is satisfied that the
present record is sufficient to justify Board intervention on the
basis of fraud. . . .95

91
IAB Decision, at 35–36.
92
Id., at 30 (emphasis added).
93
Id. (emphasis added).
94
Id. (emphasis added).
95
IAB Decision, at 34 (emphasis added).
17
 31. Beyond misrepresentations of past medical history, the

miscommunications to his Employer, and admissions of dishonesty and/or

omissions made during the discovery of his worker’s compensation case, his

testimony before the Board establishes further evidence of incredulity. 96 His

testimony that he experienced no cervical or lumbar issues before the 2018 work

accident,97 is wholly inconsistent with nearly twenty years of medical records that

say otherwise.

32. Claimant’s suggestion that the Board’s decision will have a chilling

effect on future claims filed by employees is also without merit.98 The facts here

involved more than a poor historian hampered by a language barrier. The evidence

supported findings that his misrepresentations were, at best, chronically evasive, at

worst, fatally fraudulent. Under Rule 60(b), Employer is entitled to relief.

CONCLUSION

33. Substantial evidence supports the Board’s determination that Claimant

failed to meet his burden for additional compensation. The Board did not abuse its

96
In response to cross-examination and questions from the Board regarding his past medical
history, more than ten times, Claimant indicated that he did not remember his past medical
treatment: “I don’t recall–I don’t recall”; “I don’t remember this. I don’t have memory of this”;
“No, no. [I don’t remember]”; “No, I don’t recall that”; “I’m just learning now”; “I don’t
remember”; “I don’t recall this much. I can[’t] give an answer because I don’t remember”; “I don’t
recall the exact time”; “I don’t recall that. [W]ell, I don’t have any–in my mind what that–the
doctors or the places that I had the treatment”; and “I don’t remember.” IAB Tr., at 21–28.
97
Id., at 14, 20.
98
See Claimant’s Opening Br., at 13.
18
discretion in its determination that Employer met its burden under Rule 60(b). There

is no error of law. The Board’s decision is AFFIRMED.

IT IS SO ORDERED.

/s/ Vivian L. Medinilla
Vivian L. Medinilla
Judge

19