Benjamin K. Durstein

1.    The General Assembly amended Section 2347 of the Workers’ Compensation Act regarding Petitions for Review to codify existing litigation practices and clarify areas of dispute.

The Bill was signed into law by Governor Carney on October 7, 2022. The language is completely re-worked from the prior version. There are multiple changes, including, but not limited to: 
•    PFR hearings may not occur within 26 weeks of each other;
•    Supporting documentation is now required to accompany a PFR filing;
•    A PFR may now be filed to determine entitlement to permanency benefits;
•    PFR service may now be accomplished electronically and by private mailing services; and 
•    Workers’ Compensation Fund participation and reimbursement rights were clarified.

2.    New workers’ compensation rates.

The Department of Labor announced that the new workers’ compensation rates effective July 1, 2022, establish an average weekly wage of $1,234.04. Accordingly, the maximum weekly compensation rate is $822.70 and the minimum weekly compensation rate is $274.24.

3.    Statistics from the Department of Labor.

The 24th Annual Report from the Department of Labor is available on the state’s website and provides updates, data and information that cover the year 2021. Of note, Utilization Review requests increased from 2020, and approximately 62% resulted in an appeal to the Industrial Accident Board, although most appeals were withdrawn before hearing. Chronic pain treatment continues to represent the most challenged treatment modality. There are now 3,364 certified providers in Delaware, which represents a 19% increase from 2020. Five-year cumulative statistics on appeals indicates the Board has rendered 1,594 decisions, 202 of which were appealed. Sixty-four decisions were affirmed, 26 were reversed or remanded, 87 were dismissed or withdrawn, and 25 were pending decision at the time of the report. Accordingly, 14.7% of decided appeals in the last five years were reversed and/or remanded.

4.    The Superior Court reversed and remanded a Board decision that denied a petition for a COVID-19 workplace exposure.
Carl Fowler v. Perdue Farms, Inc., 2022 WL 807327 (Del. Super. March 16, 2022)

The claimant alleged that he suffered a compensable COVID-19 exposure at work. Although both medical experts concluded the COVID-19 condition was likely acquired at work, the Industrial Accident Board denied the petition because it did not find the claimant’s testimony about other potential exposures or histories provided to the doctors to be credible. The claimant appealed.

The Superior Court reversed and remanded the decision because the Board had rejected unrebutted medical expert testimony and had improperly relied on its own expertise and extrajudicial knowledge of facts not in the record. Additionally, the Board committed legal error and imposed an incorrect burden of proof. The court felt that the claimant was effectively tasked with proving the workplace exposure beyond a reasonable doubt rather than the correct “more likely than not” standard. The case was remanded for further proceedings and instructed to determine whether or not COVID-19 is an occupational disease if exposure was proved. The remand hearing has not yet occurred.

5.    The Industrial Accident Board denied two COVID-19 exposure petitions.
Cacchioli v. Infinity Consulting Solutions, (IAB No. 1501061 - Decided March 9, 2022) and Hudson v. Beebe Medical Center, IAB No, 1516467 (Decided Oct. 24, 2022).

In Cacchioli, the claimant filed a lawsuit in Superior Court for wrongful conduct by the employer that resulted in COVID exposure at work and, ultimately, the claimant’s death. The court stayed the lawsuit in order to have the Industrial Accident Board determine whether it had exclusive jurisdiction over the claim and, more specifically, whether COVID qualified as an occupational disease under the Workers’ Compensation Act.

At the hearing before the Board, the claimant argued that his own petition should be dismissed for lack of jurisdiction. The Board agreed and reasoned that “in the limited office setting described in the petition in this case, there is no assertion that claimant’s occupation produced a hazard of contracting COVID-19 distinct from and greater than the hazard attending employment in general.” However, the Board further found that COVID-19 “can certainly be a compensable occupational disease in a proper situation.”

In Hudson, the Board denied a petition from a nurse who worked in the “COVID unit” of a hospital for failure to meet burden to prove COVID-19 was contracted at work and failure to prove that any alleged exposure qualified as an occupational disease for purposes of workers’ compensation under the specific circumstances of her employment. The decision is on appeal.

6.    The Supreme Court affirmed a decision of the Board that determined a claimant failed to meet his burden to prove a permanent impairment even though it did not accept the opinions of the employer’s medical expert.
Shipmon v. State of Delaware, 275 A.3d 755 (Table), 2022 WL 984396 (Del. April 1, 2022)

The claimant alleged that he sustained a 22% cervical spine permanent impairment as a result of the work accident based on the opinions of Dr. Stephen Rodgers. In defense, the employer relied on the opinions of Dr. Stephen Fedder, who testified that there was no permanent impairment caused by the work accident. Following a hearing, the Industrial Accident Board concluded the claimant failed to meet his burden to prove that he sustained a permanent impairment of his neck. The Board commented that, although it did not believe the claimant had a zero percent rating, it would not award permanency benefits because Dr. Rodgers’ testimony failed to carry the burden to prove his 22% rating. The Superior Court affirmed the Board’s decision.

The Supreme Court rejected the claimant’s argument that the Board erred as a matter of law when it declined to award him permanent impairment benefits while simultaneously finding that he “suffered permanent limited function.” The court reasoned that the Board is permitted to unilaterally assign a specific degree of permanent partial impairment in the absence of any supporting evidence and that the Board “should not . . . make a determination that a permanent partial impairment is of a certain degree when there is no evidence in the record to support that finding.” The judgment of the Superior Court was affirmed.

7.    The Supreme Court held that an employer may challenge medical treatment via a Petition for Review instead of Utilization Review if causation is disputed, despite a prior UR and and more than eight years’ of paid medical bills for the same treatment.
Sheppard v. Allen Family Foods, 279 A.3d 816 (Del. 2022)

The employer filed a Petition for Review seeking to terminate the claimant’s entitlement to ongoing narcotic pain medications on the basis that they were not reasonable, necessary or causally related to a 2011 work accident. The claimant moved to dismiss the petition when the employer completed its case-in-chef because the employer had failed to raise a good faith causation defense and, therefore, the treatment was required to be referred to Utilization Review. The Industrial Accident Board concluded that the employer presented sufficient evidence on the issue of causation to proceed via Petition for Review and denied the motion. The Superior Court affirmed.

The Supreme Court opined that the employer’s medical expert testimony was sufficient to raise an issue of causation and the employer was not precluded from making that argument now. The prior Utilization Review referral did not forever bar an employer from raising a causation, and the employer’s payments through September 4, 2019, did not equate to a waiver of causation with respect to the Petition for Review. Lastly, the court emphasized that there was a good faith basis for the causation argument as the claimant and her medical expert were both determined to be less credible than employer’s expert.

8.    The Superior Court holds that § 2322(b) was not superseded by the adoption of § 2322B and that when an employer refuses to furnish medical treatment, claimants are entitled to recover the “reasonable cost” of medical treatment instead of the Delaware Fee Schedule amount.
Quaile v. National Tire and Battery, 2022 WL 2527619 (Del. Super. July 7, 2022)

The employer denied medical treatment for a rectal and left knee injury. The claimant filed a petition, and the Board determined those injuries were compensable. The employer was ordered to pay medical expenses according to the Delaware Fee Schedule. The claimant appealed and contended that he was entitled to more than the Fee Schedule. Following a remand and another appeal, the issue made it to the Superior Court.

The court determined that the plain language of the statute did not address or control the issues, so the language must be interpreted to ensure that the overriding, benevolent purpose of the Workers’ Compensation Act was achieved. It concluded that Section 2322(b) was not rendered non-viable by the adoption of Section 2322B. Therefore, because the employer had refused to pay for the treatment expenses at issue, Section 2322(b) determined the appropriate recovery amount instead of the Fee Schedule amount and the claimant was entitled to recover the “reasonable cost” of the treatment. The “reasonable cost” was held to be the outstanding balance with the providers of $16,818.86, following payment/adjustments from health insurance.

9.    The Board denied a claimant’s petition for increased medical bill payments for ketamine infusions under the theory that the Delaware Fee Schedule did not apply and the Board should order payment of the “reasonable cost” of the treatment.” 
Taylor v. State of Delaware, (IAB No. 1447456) (September 6, 2022)

The claimant was injured in a compensable work accident on September 16, 2016, and subsequently developed Complex Regional Pain Syndrome (CRPS). Beginning in 2017, she regularly received ketamine infusion procedures from a surgery center in Pennsylvania as part of her treatment plan. The amount billed by the surgery center for each infusion was $8,700. The State of Delaware (the employer) initially paid a higher amount but subsequently corrected the reimbursement to around $547 per the Delaware Fee Schedule. The charge versus payment disparity prompted the claimant to file a petition to determine whether the employer was paying the correct amount.

The Industrial Accident Board held that 19 Del. C. § 2322B(7) applied because the surgery center was an out-of-state provider not licensed in Delaware or certified under the Delaware workers’ compensation payment system. The Delaware Fee Schedule was the appropriate mechanism to determine the payment. The Board rejected the claimant’s argument that the “reasonable cost” provision of 19 Del. C. § 2322(b) applied pursuant to the Quaile v. National Tire and Battery decision (summarized above). The Board reasoned that this was not refused or contested treatment because the employer had made payments and agreed to the compensability. The Board explained that the proper forum to obtain a higher rate for ketamine infusions was the Workers’ Compensation Oversight panel established pursuant to the Delaware Workers’ Compensation Act. The petition was denied. The Industrial Accident Board’s decision is currently on appeal to the Superior Court. 

10.    The Delaware Supreme Court held that a lapse in a Delaware doctor’s provider certification renders the treatment not compensable as a matter of law without preauthorization.
Wilson v. Gingerich Concrete & Masonry, 2022 WL 4678846, --- A.3d --- (Del. October 3, 2022)

The claimant injured his cervical spine in a work accident on August 1, 2002. He came under the care of Dr. Bikash Bose in 2014. On July 22019, Dr. Bose performed a cervical fusion surgery that was acknowledged as compensable and paid for by the employer/carrier. When the fusion did not heal in a timely fashion, Dr. Bose performed a second sugary on February 22, 2021. The employer disputed the compensability of the second surgery, and the claimant filed a petition. It was determined that Dr. Bose’s certification as a workers’ compensation provider per 19 Del. C. § 2322D had lapsed at the time of the second surgery. Although this was claimed to be an “administrative error” resulting from the COVID-19 pandemic, the Industrial Accident Board concluded that certification was mandatory and uncertified treatment was not compensable without preauthorization.

On appeal, the Superior Court affirmed the Board’s decision and rejected the claimant’s argument that a lapse in certification should be treated differently from a lack of certification on the part of a provider. The exceptions in Section 2322D are explicit and do not include a “good faith” exception. The claimant appealed again to the Supreme Court.

The Supreme Court declined to follow prior decisions of the Board that allowed for a “de minimus” exception for Delaware providers who had certification lapses. Any exceptions needed to be crafted by the General Assembly, not the courts. The claimant’s final contention, that he will potentially be liable for the surgery bills through no fault of his own, was not ripe for a decision.

 

_{What’s Hot in Workers’ Comp, Vol. 26, No. 12, December 2022 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 Warner Coleman & Goggin, 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.}