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SIU Spotlight

Evaluating “Reasonable and Necessary” PIP Charges Under Delaware Law

May 15, 2026

by Eric Scott Thompson

When it comes to evaluating bills submitted to PIP carriers in Delaware, insureds often ask whether, pursuant to Delaware law, carriers are required to pay only those amounts billed/charged by medical practitioners that are “ordinary and customary.” Delaware law is unique when it comes to consideration of this issue. 

Applicable Statute: 21 Del. C. § 2118(a)

Delaware does not have a fee schedule for first party claims submitted for payment under a policy providing personal injury protection benefits. Pursuant to 21 Del. C. § 2118(a)(2)a.:

No owner of a motor vehicle required to be registered in this State, other than a self-insurer pursuant to § 2904 of this title, shall operate or authorize any other person to operate such vehicle unless the owner has insurance on such motor vehicle providing the following minimum insurance coverage:

(2)  a.  Compensation to injured persons for reasonable and necessary expenses incurred within two years from the date of the accident for:

  1. Medical, hospital, dental, surgical, medicine, x-ray, ambulance, prosthetic services, professional nursing and funeral services. Compensation for funeral services, including all customary charges and the cost of a burial plot for one person, shall not exceed the sum of $5,000. Compensation may include expenses for any nonmedical remedial care and treatment rendered in accordance with a recognized religious method of healing.
  2. Net amount of lost earnings. Lost earnings shall include net lost earnings of a self-employed person.
  3. Where a qualified medical practitioner shall, within two years from the date of an accident, verify in writing that surgical or dental procedures will be necessary and are then medically ascertainable but impractical or impossible to perform during that two-year period, the cost of such dental or surgical procedures, including expenses for related medical treatment, and the net amount of lost earnings lost in connection with such dental or surgical procedures shall be payable. Such lost earnings shall be limited to the period of time that is reasonably necessary to recover from such surgical or dental procedures but not to exceed 90 days. The payment of these costs shall be either at the time they are ascertained or at the time they are actually incurred, at the insurer’s option.
  4. Extra expenses for personal services which would have been performed by the injured person had they not been injured.
  5. “Injured person” for the purposes of this section shall include the personal representative of an estate; provided, however, that if a death occurs, the “net amount of lost earnings” shall include only that sum attributable to the period prior to the death of the person so injured.  

The Insurance Commissioner, in Auto Bulletin No. 10, Amended October 15, 1998 interpreted 21 Del. C. § 2118(a)(2), as requiring insurers to pay “reasonable and necessary expenses” for PIP coverage. See attached. The commissioner noted that “[s]ome insurers are refusing to pay more than a portion of the medical, hospital, or other professional medical expenses on behalf of their insureds based upon what those carriers believe are “unreasonable” fees billed” and opined “PIP carriers must pay all of an insured’s PIP costs (less any applicable deductible) if those costs are reasonable and pertain to services that are necessarily required for the care of the insured” unless the  carrier and provider have previously agreed on a price for a specified service. The commissioner went on to state “[i]f a medical provider has charged [a]n ‘unreasonable fee’ for a necessary treatment, the unreasonableness of that fee does not render the treatment ‘unnecessary.’  That portion of the fee which is not in dispute shall be paid according to relevant law.  A dispute over the remaining amount of such a fee should remain a dispute between the carrier and the provider.  It is expected that carriers will make good faith efforts to resolve such disputes and not expose the insured party to harassment or legal action.  However, if a claim is made or legal action is filed by the provider against the insured party for the amount of the fee in dispute, the carrier must provide a defense for its insured against that claim or legal action.”

Finally, the commissioner proclaimed, “[u]nder the Delaware Unfair Practice Act, Title 18 Delaware Code, Section 2304(16), it is an unfair trade practice to attempt with such frequency as to indicate a general business practice to settle a claim for less than the insurance policy requires. The Department will vigorously enforce the rights of insured to receive the benefits to which they are contractually entitled.  It will be considered a violation of 18 Delaware Code, Section 2304 if a carrier asserts that the provisions of this bulletin prohibit balance billing.”

Case law

The issue of unilateral reduction in payment of bills submitted by providers under a PIP policy has been a subject of several court cases in Delaware.  In Green v. Geico Gen. Ins. Co., 2018 WL 1956287 (Del. Super.), the plaintiffs sought to obtain class certification challenging Geico’s procedure for evaluating and paying for treatment as being in violation of 21 Del. Sec. 2118.  GEICO apparently evaluated utilizing two rules: the Geographic Reduction Rule (GRR) which set an arbitrary cap at the “80th percentile” of other claims submitted to GEICO within a particular geographic region and the Passive Modality Rule (PMR) under which GEICO automatically denied payment for certain “passive modalities” when treatment occurs more than eight weeks from the date of the automobile accident.  The plaintiffs argued under the GRR, 20% of bills submitted to GEICO for reimbursement were automatically deemed “unreasonable,” without inquiry into the facts giving rise to the claim or any factors that could impact pricing and the GRR was, in effect, a secret cap on what GEICO will pay. The court denied class certification but also denied GEICO’s motion to dismiss, finding insufficient discovery had occurred for it to render a dispositive ruling.

A similar result had been found by the United States District Court for the District of Delaware in Johnson v. GEICO Casualty Co.  310 F.R.D. 246 (D. Del. 2015), aff'd, 672 Fed. Appx. 150 (3d Cir. 2016).  In Johnson, the USDC initially certified a class, however, later in litigation the court reviewed and found that the plaintiffs could not maintain the class based on a damage model which required significant individual inquiries. The Delaware District Court decertified the class because “even assuming that Geico's policies resulted in the classes' claims being systematically denied and reduced, ... individualized inquiries would be required to determine whether each class member's individual claim was actually medically necessary and their expenses reasonable.”  Id. at 251. The primary fight in the regarded decertification of the class, which the court agreed with and was affirmed by the 3rd Circuit. 

In Wilmington, the Pain & Rehabilitation Center instituted litigation against USAA Gen. Indem. Ins. seeking class certification and declaratory judgment that USAA’s utilization of a computerized bill review system called “Reasonable Fee Methodology,” to determine the reasonableness of medical expenses was in violation of 21 Del. C. § 2118(a).  Wilmington Pain & Rehab. Ctr. V. USAA Gen. Indem. Ins. Co., 2017 WL 8788707 (Del. Super.).  Again, the sole issues decided by the court was class certification, which it again declined to certify. The court did not address the issue of declaratory judgment.  

In 2019, First State Orthopedics sought class certification arguing Liberty Mutual Insurance Company’s policy of paying invoices more than 30 days after they were submitted for payment was in violation of 19 Del. C. § 2362, which mandates “[a]ll medical expenses shall be paid within 30 days after bills and documentation for said expenses are received by the employer or its insurance carrier for payment, unless the carrier or self-insured employer notifies claimant or the claimant's attorney in writing that said expenses are contested or that further verification is required.”  First State Orthopedics v. Liberty Mutual Ins. Co., 2020 WL 764149 (Del. Super.).  The Court again denied class certification but allowed the merits to proceed.

Conclusion

In sum, this issue has yet to be presented in full to the court and a trial regarding the same has not yet been held before a fact finder in Delaware. Additionally, the Delaware Insurance Commissioner has not instituted litigation seeking a definitive determination regarding whether it is an “unfair trade practice to attempt with such frequency as to indicate a general business practice to settle a claim for less than the insurance policy requires” as is threatened in Auto Bulletin No. 10.  Nevertheless, the language of § 2118(a) and the Insurance Commissioners interpretation in Auto Bulletin No. 10 likely support a finding that a systemic practice of doing so violates § 2118(a). The bulletin was designed (and has been amended several times) in an effort to afford the insured the protection of having his/her bills for necessary treatment paid while protecting the carrier from a physician or practice attempting to take advantage of Delaware’s “dollar-for-dollar” PIP payment laws. However, it is delineated within the bulletin that same is not to be construed as authority for the carrier to engage in a repeated practice of not paying the total amount of bills submitted for payment. Therefore, it is expected that a systematic practice of not paying the total amount of bills submitted for payment without analysis on an individual basis as to the relationship of the treatment and corresponding bills to the condition being treated supported by an independent medical examination would lead to litigation that the practice violates the requirements of 21 Del. C. § 2118(a).  

Firm Highlights

Thought Leadership

NJ Workers' Compensation Legislation Update

A couple more bills were introduced for the 2026-27 session. Any updates since February have been highlighted in bold. A1023 | S3984 Medical use of cannabis under certain circumstances This requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances. It was introduced on January 13, 2026 and referred to the Assembly Financial Institutions and Insurance Committee. It was also introduced on March 19, 2026 and referred to the Senate Commerce Committee. A1045 Certain injuries to volunteer and professional public safety and law enforcement personnel This revises workers’ compensation coverage for certain injuries to volunteer and professional public safety and law enforcement personnel. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. A3724 Personal liability to employer officers for failure to pay for coverage This provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers' compensation coverage. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. On May 7, 2026, it was reported and referred to Assembly Judiciary Committee. A4617 Certain workers' compensation supplemental benefits and funding method This concerns certain workers' compensation supplemental benefits and funding method. For a permanently and totally disabled worker or surviving dependents after December 31, 1979, with some exceptions, this bill provides for an annual cost of living adjustment in the weekly workers’ compensation benefit rate. It was introduced on March 10, 2026, and referred to the Assembly Labor Committee. S241 Inclusion in database of appointed officials This requires that workers’ compensation judges and administrative law judges be included in database of appointed officials. It was introduced on January 13, 2026 to the Senate, Referred to Senate State Government, Wagering, Tourism & Historic Preservation Committee. A1870 | S1379 Workers' compensation benefits for certain workers due to September 11, 2001, terrorist attacks This provides workers’ compensation benefits for certain public safety workers who developed illness or injury as result of responding to September 11, 2001 terrorist attacks. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. It was also introduced on the same day and referred to the Senate Labor Committee. On February 5, 2026, it was reported from the Senate Committee, 2nd Reading, and referred to the Senate Budget and Appropriations Committee. A2779 | S1521 Excludes Certain Illegal Aliens This excludes certain illegal aliens from workers’ compensation and temporary disability benefits. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A2792 | S1555 Prevent Intoxicated Employees from Workers’ Compensation This prevents intoxicated employees from receiving workers’ compensation. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. S2290 Increase Mandatory Retirement Age This increases statutory mandatory retirement age for Supreme Court Justices, Superior Court Judges, Tax Court Judges, Administrative Law Judges, and Workers’ Compensation Judges from 70 to 72. It was introduced on January 13, 2026, and referred to the Senate Judiciary Committee. A3167 | S2372 Workers’ compensation insurance requirements for certain corporations and partnerships. This concerns workers’ compensation insurance requirements for certain corporations and partnerships. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A1384 | S2757 Reduce Statute of Limitations in Medical Fee Disputes This reduces statute of limitations from six years to two years in medical fee disputes in workers’ compensation matters. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. S3144 Testimony in Workers’ Compensation This concerns submission of testimony in workers’ compensation claims. It was introduced on January 13, 2026, and referred to the Senate Labor Committee. S3342 Increase Mandatory Retirement Age This increases statutory mandatory retirement age for Supreme Court Justices, Superior Court Judges, Tax Court Judges, Administrative Law Judges, and Workers’ Compensation Judges from 70 to 75. It was introduced on February 5, 2026, and referred to the Senate Judiciary Committee. A3548 | S3571 Maximum benefits for certain volunteers This provides certain volunteer and other workers with maximum compensation benefit for workers' compensation claim regardless of outside employment.. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. On March 2, 2026, it was reported from the Senate Committee, 2nd Reading, and referred to the Senate Budget and Appropriations Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. On May 7, 2026, it was reported and referred to Assembly State and Local Government Committee.

Thought Leadership

What’s Hot in Workers’ Comp - News and Results*

RESULTS* Ben Durstein (Wilmington) obtained a favorable decision involving a claimant who fractured his patella in a work accident requiring two surgeries. The IAB rejected the claimant’s medical expert’s opinion that he sustained a 25% permanent impairment to the right lower extremity. Instead, the board accepted the opinion of the employer’s medical expert that the appropriate permanency was 13% utilizing the 6th Edition of the AMA Guides to the Evaluation of Permanent Impairment. Tony Natale III (King of Prussia) successfully had a claim petition alleging new injuries and periods of disability dismissed based on full recovery. The claimant was injured when his skid loader was struck by another loader in the process of baling hay. Original injuries were accepted and the claimant returned to work. Thereafter, the claimant abandoned work and filed a claim petition to assert new injuries and extended disability. Cross examination of the claimant’s medical expert stunningly revealed his failure to review claimant testimony, his lack of awareness of a social security disability decision detailing the existence of claimant’s alleged work-related conditions prior to the date of work injury, and his failure to understand that the claimant admitted to full recovery of injuries for which he was continuing to treat. Tony Natale III (King of Prussia) successfully obtained a defense verdict in a Medicare conditional payment lien third level appeal. The United States government alleged a Medicare conditional lien payment was due and owing in the upper six-figure range based on an auto accident and PIP policy for which the government conditionally became the primary carrier. The government argued that our client, the PIP carrier, was the primary payer and, under federal law, must reimburse the government for its conditional lien payment. At the third-level appeal hearing, the government’s position was refuted by the revelation that the date of injury tied to the medical bills associated with the lien was glaringly and chronologically prior to the insurer’s PIP policy date. The court held that based on this evidence and argument, the government could not meet its requirements to assert a lien against our client. A. Judd Woytek (King of Prussia) and John Abda (Scranton) successfully had a workers’ compensation claim petition granted for medical benefits only for a closed period with no wage loss awarded. The claimant alleged multiple injuries as the result of a very minor motor vehicle incident where a co-worker’s delivery van rolled down an incline of approximately six feet, and bumped into the rear of the claimant’s delivery van. He claimed he was thrown forward and suffered head and neck injuries, along with aggravating a pre-existing ankle injury. The claimant was also terminated following the accident for having a large hunting knife in his van, which was against the employer’s workplace violence policy. The judge granted the claim for a mild concussion and an ankle contusion, but terminated medical benefits as of the date of our IME’s. The judge found that no wage loss benefits were payable as the claimant was terminated for cause and work remained available to him. The judge found our medical experts to be more credible than the claimant’s, along with finding our four employer witnesses to all be credible. The trial team was assisted by paralegal Bonnie Zemek (King of Prussia). Eric Scott Thompson (Wilmington) was successful in a workers’ compensation matter in Delaware. On October 15, 2024, the claimant was injured while performing fire training in a multistory building when he tripped over a fire line, injuring his right knee. The claimant received regular and consistent treatment for the right knee through August 29, 2025, when he presented with left knee complaints for the first time. His treating orthopedist diagnosed a hamstring strain. The claimant was next seen October 15, 2025, with continued left knee complaints, and was referred to a total knee doctor within the practice. He was then diagnosed with a posterior root tear of the medial meniscus. Our expert testified that it was not plausible for a lateral hamstring strain to progress to a meniscal tear in two months. The claimant required a total knee replacement that was ultimately performed in February 2026. In the six months between the time of initial presentation with left knee complaints and the total knee replacement, conservative care consisted of a single injection. Our expert testified that posterior root media meniscal tears can respond to conservative care, and it was not known if it would with the claimant because it was not adequately explored. The Industrial Accident Board agreed with our expert and determined that the claimant failed to meet the burden of establishing more likely than not that the left knee complaints were caused by overloading/overuse as a result of the compensable injury to the right knee. They also agreed that the claimant was able to return to work in a sedentary capacity as opined by his physicians and our expert prior to the left total knee replacement and that there were employment opportunities available within his restrictions and capabilities as presented by the vocational expert. As a result, the claimant was no longer entitled to total disability benefits and will receive partial disability benefits for which he is limited to 300 weeks. Michele Punturi (Philadelphia) and Alana Staniszewski (Pittsburgh) had a termination petition granted in a Pennsylvania workers’ compensation case. The petition involved an echocardiography technologist with long-term employment at a local hospital who sustained a right shoulder injury resulting in surgery in January 2024. Following surgery, the claimant was diagnosed with a frozen shoulder and underwent additional surgery in June 2024, with a recommendation for a third surgery. The opinions of the defense medical expert, a Board-certified orthopedic surgeon, were found credible, persuasive, and competent based upon the extensive history he obtained from the claimant, analysis of the mechanism of injury, and review of records, along with comparison of MRIs from October 2023, February 11, 2024, and January 6, 2025, which failed to reveal any causal relationship other than a strain/sprain of the right shoulder. This evidence supported that the claimant had fully recovered, and was not in need of any ongoing medical treatment and/or restrictions. In particular, despite allegations of injuries beyond a sprain/strain, the defense medical expert identified that those allegations were not consistent with what was found at the time of surgery, and elements of the surgery were to treat a chronic and degenerative condition. Additionally there were no ongoing issues or problems with the subscapularis, which was intact, consistent with the follow-up MRI of February 11, 2024, and the claimant did not have evidence of a frozen shoulder. In fact, the MRIs and mechanism of injury, he opined, did not support any injury causing tendonitis or inflammatory conditions within the bicep tendon. Furthermore, multiple days of surveillance footage demonstrated the claimant’s normal use, with the ability to sweep and shovel snow, operate her vehicle, raise her arms above shoulder level, and use a broom – all without any observable difficulty, which challenged the claimant’s credibility of a disability and further established a lack of causation. As a result of this favorable decision, supersedeas fund reimbursement will be obtained for both wage loss and medical benefits through the supersedeas fund recovery process. *Prior Results Do Not Guarantee a Similar Outcome NEWS Heather Carbone (Jacksonville) was a panelist for a webinar hosted by The Workers’ Compensation Claims Professionals (WCCP) Association. As part of the “Meet the Experts” Series, the speakers addressed “Afterthoughts that Undermine a Successful Mediation,” highlighting the pitfalls and challenges of underprepared or unprepared mediation participants. The discussion included appropriate pre-mediation communications, setting of expectations, management of expectations, and working through the unexpected or unprepared. Attendees gained ideas about how and when to prepare, best practices, and the potential for non-parties (spouse, significant other, risk owners-insurers) to have differing perspectives or concerns than the actual employee and employer. On May 21-22, 2026, A. Judd Woytek, (King of Prussia) joined a panel at the CLM Alliance (Claims and Litigation Management Alliance) Work Comp Conference in Nashville to present "We See You: How Employee Engagement Enhances Work Comp Outcomes." Judd and his fellow panelists discussed the positive impact of employee engagement on claim outcomes, return-to-work timelines, and overall claim costs.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict.