Benjamin K. Durstein

The claimant was injured in a work accident on April 4, 2011. On December 2, 2019, the employer filed a petition for review that sought to terminate the claimant’s entitlement to ongoing narcotic pain medications on the basis that they were not reasonable, necessary or causally related to the work accident. During the hearing on the merits, the claimant moved to dismiss the petition when the employer completed its case-in-chef. The claimant contended the employer failed to raise a good faith causation defense and that, without a causation argument, the treatment was required to be referred to Utilization Review pursuant to the Workers’ Compensation Act. The Industrial Accident Board concluded the employer presented sufficient evidence on the issue of causation to proceed, via petition for review, and denied the motion. Moreover, the Board found that the narcotic pain medication treatment was no longer compensable following a weaning period.

The IAB’s ruling on the motion to dismiss was appealed, and the Superior Court affirmed. The claimant then appealed to the Delaware Supreme Court, with the same arguments regarding whether it was permissible for the employer to file a petition for review instead of referring the treatment to Utilization Review. Specifically, the claimant argued the employer failed to articulate a good faith change in condition or circumstance relating to the causal relationship of her treatment to the work injury.

The Supreme Court opined that the employer’s medical expert testimony, from Dr. Jason Brokaw, was sufficient to raise an issue of causation and that the employer was not precluded from making the argument now, despite a prior Utilization Review of pain management treatment in 2016 or a prior IAB determination that the claimant had a permanent injury. The court explained that Utilization Review is to be used when causation is not in dispute but that it did not forever bar an employer from raising a causation defense. Additionally, the employer’s continued payment for the claimant’s treatment through September 4, 2019, did not equate to a waiver of causation with respect to the December 2019 petition. Lastly, the court emphasized that there was a good faith basis for the causation argument as the claimant and her medical expert were not determined to be less credible than the employer’s expert, who did not feel the treatment was causally related.

 

_{What’s Hot in Workers’ Comp is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2022 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}