A New Spin on Mexican Take-Out: Delaware Superior Court Strikes 45-Day Utilization Review Appeal Period as Invalid

 A big shout-out to Nancy Chrissinger Cobb and Mike Galbraith who kept their promise to provide me with a "breaking news" update when the Superior Court ruled on the pending challenge to the 45-day UR appeal period.  The decision of Judge Streett released January 6, 2012 represents a consolidation of three cases: Salvador Avila-Hernandez v. Timber Products, Cecil Palomino v. Christiana Care Health Services, and Julio Munoz v. Berger Bros., C. A. No. N10A-06-002 (Del.) (January 6, 2012) [Consolidated].  Other attorneys involved in this case include Gary Nitsche, Andy Carmine, Amy Taylor and Luciana Gorum.

Here is what Nancy had to say:

"Holy cow..........Judge Streett declares the DOL Regulation 5.5.1 invalid and (in essence) replaces the 45 day appeal time with a 5 year SOL.

Now, one wonders........since employers aren't ever faced with meeting a SOL, does this mean that they, too, get 5 years from the date of the last payment to appeal an adverse UR decision?  Doesn't this just gut the whole UR thing?  Wouldn't it just have been easier for the Judge to rule that a represented party is entitled, by law, to have his counsel copied on decisions?

I'm sure someone will take this up.  We all need to know one way or the other what we're up against......."

And Mike Galbraith, ever the master of understatement, succinctly comments:

"As promised, attached is a copy of Judge Streett's Memorandum Opinion in this consolidated appeal, finding that the provision contained in Workers' Compensation Regulation 5.5.1 limiting the time to contest a Utilization Review determination to 45 days is invalid.  Accordingly the Court reversed the Board's decisions to dismiss claimants' petitions and remanded for consideration of their petitions on the merits.  Enjoy."

Okay people, this is big.  Since the UR regulation is less than 5 years old, does that mean that every unfavorable decision issued to date is subject to now being appealed?  Oh, snap! Will there ever be closure to an already procedurally tortured system?   Will there ever be rest for the IAB?  Because a whole new "pocket of the docket" has now been created.

And get this-Gary and Mike also appealed the issue of whether the claimant's attorney was entitled to a copy of the UR decision from the Department of Labor.   Judge Street comments that she did not need to reach that issue.  Heck, with a 5-year appeal period, who needs their lawyer to have timely notice?

Irreverently yours,
Cassandra Roberts

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

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