IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SANTIAGO MENDOZA,

Claimant-Appellant,

v.

TALARICO BUILDING SERVICES, 

INC., d/b/a SERVICE MASTER 

CLEANING,

Employer-Appellee.

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C.A. No. N22A-05-003 VLM

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.
2

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.
3

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.
4

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.
5

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.
6

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.
7

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.
8

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).
9

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.
10

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.
11

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.
12

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. 
13

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.
14

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.”). 
15

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.
16

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-OneInc., 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).
17

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).
18

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.
19

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