Workers' Compensation

Four Doctors and a Claimant—A Study In Lymphedema At the Delaware IAB

Thought I was done posting this week until I heard from Don Marston with a little tutorial on lymphedema.  Now how could I turn that one down?  So here you have it:

"Here is a case that may have some appeal for your blog.

Lymphedema is not a common issue, at least in my practice.

John Ellis did a nice job of defending this one. I think we were successful because my two local experts (who also teamed up for the surgery) prevailed over a highly qualified but out of state expert."

I agree with Don that lymphedema is not your garden variety comp claim.  And I love practicing law as part of the DE comp bar because where else do you have adversaries, and competitors, complimenting each other so readily.  Because John Ellis (Heckler & Frabizzio) did a splendid job for the employer-he just didn't win....

Turning to the case at hand, Benjamin Buffington v. JF Acquisition, LLC,  IAB#1357305 (8/31/12), Dr. Rudin and Dr. Tuerff, the home grown docs, testified for the claimant. Dr. Gelman and Dr. Kent Haas, vascular surgeon, testified for the employer.  The Board found in favor of the claimant.  Here are a few take-aways from this decision:

   Surgery is one of the most common causes of disabling lymphedema

   Factor V Leiden is a medical condition of genetic origin which makes a patient predisposed to a clotting disorder

   Phlebitis, lymphedema and venous insufficiency are all different conditions

   Lymphedema is more likely to occur in obese patients

Benefits were awarded under a Reese "but for" analysis.  With causation established in claimant's favor, the Board allowed that the employer was entitled to Utilization Review if it was also challenging the specific treatment modalities-raising the question in my mind as to what Practice Guidelines are triggered for lymphedema? (apparently the Lower Extremity Guidelines).

I do take issue with one series of comments in the  Board's ruling:

"UR is the best vehicle for determining whether any contested treatment is reasonable and necessary. UR is also a great medium for determination of whether certain charges are appropriate in amount under the Fee Schedule, whether there was duplication of certain treatment and whether the expenses were properly billed to the respective insurance carriers. Finally UR is the best tool for determining whether any contested treatment is within the Practice Guidelines."

What is wrong with the above?

   UR does not address whether treatment is reasonable and necessary-it addresses whether treatment is Guidelines-compliant.

   UR will not, I repeat, will not, look at bills or charges so it cannot address propriety of charges, compliance with the Fee Schedule or duplication of charges-admittedly it may address whether treatment is duplicative to the extent that exceeding the Guidelines is involved.

   Because it doesn't look at billing, UR will not key in on the propriety of charges to a given carrier.

   Finally, UR is not the "best tool" for evaluating conformity with the Practice Guidelines-it is essentially the "only" tool.

This is an awesome case for learning the medicine involved in lymphedema, from the perspective of various medical disciplines.  For learning about UR...... well, not so much......:>)

Irreverently yours,
Cassandra Roberts

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

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