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Okay, this one is a big deal, folks, a procedural lollapalooza, with props to both Mike Galbraith and Dennis Menton who heralded the Superior Court appellate decision as it was released by the Court. Allow me to simply introduce Mike's comments and Dennis' summary, since they have the superior vantage point on this issue, no pun intended.
"This case presented an issue of first impression concerning whether an employer may avail itself of the UR process once compensability is determined by the Board for medical treatment at issue before the Board. The procedural background is significant. Claimant filed a DCD petition seeking a determination that the injury is compensable, payment of medical expenses, and total disability benefits. Employer disputed that a work accident occurred and denied that claimant injured his low back at work. Following a hearing on the merits, the Board granted the petition in its entirety and specifically found that the medical treatment provided was reasonable, necessary and causally related to the work accident. However, the Board noted that because it was challenging causation, the employer could not previously avail itself of the UR process, but now that causation was found, the Board afforded employer the opportunity to submit the bills to UR within 30 days of the decision.
Subsequently, the Board granted in part the employer's motion for reargument and agreed that its reference to the reasonableness and necessity of Claimant's medical expenses was premature given employer's referral to UR and therefore redacted the terms reasonable and necessary from the original decision.
The Superior Court disagreed and found that the Board erred in removing the phrase "reasonable and necessary" from its original decision and in allowing employer to request UR of medical treatment that was at issue before the Board. The Court noted that the Board's review of medical treatment expenses for reasonableness, necessity and causality under 19 Del. C. § 2322(a) was unchanged by the 2007 amendments."
And the Cliff Notes version, from Dennis:
"When a Petition to Determine Compensation is filed, the IAB must determine if medical treatment and expenses are reasonable, necessary and causally related.
The IAB can no longer allow an employer a Utilization Review process (post Decision on an initial compensability finding ) for those bills in existence and at issue at the time of Hearing.
I think it is that simple. The Court overturned the IAB practice of allowing a UR review in the context of a PTDCD.
[There is another issue in this case which is under review for a possible Motion for Reargument, but it does not involve the Court's ruling on how the IAB must make all decisions at the time of the initial Hearing. It has to do with what I consider a procedural defect in the Court's underlying ruling as to the merits of the bills involving the claimant]."
The case under discussion is Raymond Poole v. State of Delaware, CA No. 11A-04-012-JOH (Del. Super., December 4, 2012). I am kind of scratching my head -- not sure whether I think this outcome is a blessing or a curse. On the one hand, I thought those recent IAB rulings that held a referral to UR waives the causation defense created a clunky, cumbersome, cost-inefficient litigation process. I never understood why you could not run a UR and a DCD or DACD on causation concurrently. That thus said, it would seem that allowing the issue of causation of the injury and compensability of the bills to all be resolved in one Hearing would seem like a no-brainer-for me the big "but" that accompanies that conclusion is the fact that this outcome totally bypasses UR.
SO-is that a good thing? Is there a God-given right to UR? Will this be appealed?
And given that fact that any UR outcome has a right of appeal de novo on the standard of "reasonable and necessary"....does it even matter?
Irreverently yours,Cassandra Roberts
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
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