Workers' Compensation

God Rest Ye Merry? Well, Not So Much in This Delaware Superior Court Ruling on Provider Certification

Salvation Army

Above is my firstborn, Jocelyn, ringing the bell at the Prices Corner Wal-Mart. I am one partial Mama Bear but don't you agree she is the prettiest bell-ringer you have ever seen.  Interestingly, this picture will likely make my other girl, Sweet Caroline, "sad in her heart", as she likes to say (and yes, her vocabulary does include more than "sucks for you"). She shared with me over the holiday that she now looks for herself on the blog.  (Really?) Apparently she was very bitter that I am featuring other people's kids........was she ever chagrined to see me fussing over Larry Kimmel and Tim Lengkeek's young 'uns.  Isn't that a tickle?  Go figure.

Well, today is a "lucky day" as my girls used to say when they were little. And it's a first.  Literally within minutes of each other both sides of a recent Superior Court appeal emailed me to share the case.  What were they talking about?  Howard Vanvliet v. D&B Transportation, CA No. 11A-09-003-JTV (Del. Super., November 28th, 2012).  Yep, hot off the press! Just issued today (so you can say you heard it here first...LOL!) And who were the attorneys involved? Kristi Vitola for the injured worker and Cheryl Ward for the employer/carrier, that's who.

Let's hear from Kristi first:

"I just received this decision today and thought I'd share with you.   Our client had surgery performed by a non-certified provider which had not been pre-authorized.  The Board had dismissed the Claimant's Petition seeking payment for the surgical bills.

We appealed to the Superior Court and the decision was reversed and remanded.  Judge Vaughn decided that a non-certified provider is not afforded the benefits of certified providers, such as the presumption that his treatment is reasonable unless it is pre-authorized.   However, it does not bar the Claimant from petitioning the Board for payment of the medical bills. The presumption that they are reasonable does not apply but the Claimant can still prove that the treatment was reasonable and necessary before the Board.

Bottom line is if a non-certified provider does not get pre- authorization all is not lost, you can still petition the Board and attempt to prove that the treatment was reasonable and necessary.

I expect a further appeal from Cheryl but it is too soon to tell. . ..."

And Cheryl's spin:

"Attached is a very recent Decision by Judge Vaughn in which he finds that a claimant may still recover for medical expense, here surgery by a non-certified physician, if he can prove that the treatment was reasonable and necessary for his work related injury.  He further held that 2322D(a)(1) does require a health care provider to become certified if the doctor wishes to perform medical services for workers' compensation patients without preauthorization.

I obviously disagree strongly with this opinion as the statute is unambiguous and states that if the treatment is by a non-certified physician and not the first office visit it should as a matter of law be not compensable.  This matter will now end up aback at the Board where compensability will be litigated as our doctor indicates it is not related. It will then most likely be re-appealed on numerous issues back to the Superior Court, to include the untimely appeal of this Decision in the first place (which prior Motion to the court was denied)."

I just love the juxtaposition of perspective here.  And I appreciate these ladies offering the heads up at the moment of conception, so to speak.

Subsequent to the above I got yet another email from's actually a message for Kristi......

She says you're going down on causation......LOL!!   [Do I smell a chick fight?]

Never a dull moment around here, that's for sure.

Irreverently yours,
Cassandra Roberts

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

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