Benjamin K. Durstein

Ms. Taylor was injured in a compensable work accident on September 16, 2016. The injury later developed into Complex Regional Pain Syndrome (CRPS) involving her right arm and right leg. She received ketamine infusion treatments for the CRPS that were performed at a surgery center in Pennsylvania. The employer did not contest that the treatment was reasonable, necessary, and causally related and made payments to the surgery center. Ms. Taylor filed a petition in which she alleged that the payments were not sufficient to reimburse such a complicated procedure and not consistent with the Workers’ Compensation Act. The Industrial Accident Board determined that the employer correctly reimbursed the surgery center in accordance with the Delaware Workers’ Compensation Fee Schedule (summarized in our October 2022 What’s Hot in Workers’ Comp).

On appeal, the claimant argued that the Board committed legal error when it failed to exercise its jurisdiction over the amount to be paid and determined that the “reasonable cost” provision of 19 Del. C. § 2322(b) did not apply and control reimbursement in this case. The Superior Court first concluded that the Board properly exercised its jurisdiction and correctly noted that a change to fee schedule reimbursement amounts could not be achieved by a Board decision. The court distinguished the Quaile v. National Tire and Battery opinion because, unlike in Quaile, there was no “refusal/denial” of treatment to trigger § 2322(b) in this case. Rather, the employer had accepted the treatment and paid for it correctly, as required by § 2322B(7)b’s provision directed towards reimbursement of out-of-state providers. Accordingly, Ms. Taylor was not forced to seek and pay for medical treatment herself. The Workers’ Compensation Act prohibited the surgery center from seeking payment from Ms. Taylor for charges above those authorized by the health care payment system.

The court held that the “reasonable cost” of the treatment did not apply and there was no legal error by the Board. The Board’s decision was affirmed. The Superior Court’s order is currently on appeal to the Delaware Supreme Court.
 

 

_{What’s Hot in Workers’ Comp, Vol. 27, No. 8, August 2023 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 © 2023 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.}