Utilization Review in DE: Baranowski case says no UR appeal necessary where DACD Petition for same medical treatment already pending

This week we are fortunate to have a cameo appearance from claimant attorney Mike Galbraith of Weik, Nitsche & Dougherty who is on the winning side of a Utilization Review procedural issue, which has been smoldering for several weeks.  In short, what happens when the claimant files a DACD Petition on a disputed medical treatment issue, that matter is then continued to allow UR, the UR decision issues and is adverse, and the claimant fails to appeal?  Can the claimant rely on the fact that there is already pending a DACD establishing that claim for litigation purposes?  The answer seems to lie in Robert Baranowski v. B&B Custom Masonry, IAB# 1198948 (8/3/10).

Here is what Mike had to say about the ruling:

"The Board denied the employer's request to dismiss a pending DACD Petition for pre-authorization of a surgery where UR was requested months after the Petition was filed but was not appealed within 45 days.  This case was definitely fact-driven and does not apply across the board.  I think a large part of the decision rested on the fact that the Petition and the UR decision dealt with identical issues - pre-authorization of the surgery - and the fact that the Petition was filed almost 3 months after the doctor first requested pre-authorization for the surgery without response from the carrier.  The employer requested a brief continuance - but not dismissal - of the previously scheduled hearing in order to request UR."

The defense was handled by former Hearing Officer Natalie Palladino, now of Tybout Redfearn & Pell, serving as understudy for Rob Greenberg who had a commitment in Superior Court.  I had an opportunity to speak to Rob who advised that the hearing on the merits is scheduled for tomorrow at which time a Motion for Reargument of the 8/3/10 Order will be entertained.  Rob does not agree with the characterization of facts in the Order as it relates to a lack of request for a Dismissal of the DACD prior to the July 28th Rule to Show Cause Hearing.  He offers that he requested a Dismissal at the earlier Legal Hearing and was told such proposal was premature and that the case should be allowed to move forward.  Rob also did not agree that the employer allowed the surgical authorization issue to languish for 3 months.

Am I the only one confused?

I may be a little slower that the rest of my colleagues in the work comp bar, but I continue to struggle with some of these nuances where UR is concerned.  I did not think a DACD was ever ripe where the medical claim under consideration was one that fell within the purview of UR, and the UR process had not yet fully come to fruition.  Doesn't the DACD Petition come afterward as the avenue of appeal?  Another issue that seems to keep cropping up is exactly what constitutes a request for medical treatment authorization?  On the one hand, there is an allegation that the employer failed to step up for 3 months in the face of a request to authorize surgery....and yet I see in the procedural history outlined in the Order a statement that a Legal Hearing was necessary to compel the claimant to obtain a written note from his doctor documenting the request for a multi-level disc replacement surgery, which was tendered in April, 2010-- more than 2 months after the DACD was filed.  And it would seem that the UR was requested by the employer 17 days thereafter.  Given that chronology, I fail to see a 3-month disregard of a medical treatment request...unless the obligation to request UR is now triggered by the first passing reference to surgery that appears in the doctor's notes?  It is a conundrum, to say the least.

Well, we certainly haven't heard the last on this issue, and I trust that attorneys Galbraith and Greenberg will keep us in the loop. 

Stay cool, stay poolside!

Cassandra Roberts

 Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts