Delaware UR Appellate Round-Up: Do We See a Trend Here?

Delaware UR Appellate Round-Up: Do We See a Trend Here?

Okay, I am thinking that UR rulings of non-certification have about as much sticking power as a defective Post-It note.  These have been busy weeks for your humble blogger and I owe y'all an update on something. Well, UR is the subject du jour and it packs a wallop.   If you are the employer/carrier and you prevail at the UR level, the claimant will appeal; on the other hand, if the carrier falters in its choice of submission for UR scrutiny, and thus appeals, the end result is the same.  We are all going to meet at the Board for an appeal hearing de novo.  So, what is the likely outcome?  And yep, we have a trend here in the First it seems.  And for the carrier, it is ugly indeed.

Here is the latest round-up of IAB appellate rulings from UR decisions:

   Kugler v. Wilkinson Roofing & Siding, IAB# 1205650 (8/19/10), wherein the IAB reversed a UR finding that Dr. Uthaman was non-compliant with the Guidelines in the issuance of narcotics. Medications under evaluation included Oxycontin, Oxycodone, Lyrica, and Valium....basically the entire narcotics section at Walgreens.

   Marcy Magner v. Peninsula Oil, IAB# 1136633 (8/20/10), wherein the Board reversed a UR finding of non-certification of a spinal surgery proposed by Dr. Katz.  Someone named Dr. Stephen Fedder (neurosurgeon) makes a cameo appearance as a defense medical expert to take on Dr. Katz. To no avail.

   Nancy Shipp v. United Distributors, IAB#1298510 & 1311641 (8/13/10), wherein the Board reversed a UR determination that a Dr. Rudin surgery was not within the Guidelines.  Yet another decision in which we are all reminded that Dr. Rudin wrote the Guidelines and as such, is to be given great deference on these issues. It did not help that Dr. Gelman came in and testified as to lack of causation on what was an admittedly a compensable claim, thus eroding what little credibility he might have had in taking on the doc that inspired my earlier piece....The Jesus Syndrome. (And for the love of Mike, would someone please explain to that man the concept of collateral estoppel?)

   Tajuana Goodlet v. Burlington Coat Factory, IAB# 1337871 (6/17/10), wherein the Board reversed a UR denial of compliance as to the treatment with Dr. Bandera.  Part of the problem for the carrier in this case was its defense medical expert, Dr. Robert Gordon, who appeared better prepared to testify as to the contents of his curriculum vitae (graduate of Yale, Stanford, and Harvard), than the contents of the medical bill under review.  The Board members were not impressed.

Okay, in light of the above, is there ever any merit to an appeal from the carrier's perspective?  I leave you with one case, which I had wanted to find the time to devote a blog on weeks ago..... but alas, so many cases, so little time.  This IAB ruling, carrier-favorable, stands alone in a recent cavalcade of claimant victories.  So in that regard, a shout-out for my colleague at the law firm of Tybout, Redfearn & Pell, defense counsel Joe Klusman.  What case am I referring to?

   Matthew Jones v. United Distributors of DE., IAB#1325606 (6/2/10), wherein a decision below in favor of the carrier was upheld on several grounds including a finding that the treatment of Dr. Ward, a local chiropractor, greatly exceeded the Guidelines, a finding that injection therapy was not reasonable or necessary, and finally, a finding that a second surgical consult was not reasonable or necessary after Dr. Sugarman concluded that claimant was not a surgical candidate.

Now anyone who practices in DE know that when Dr. Sugarman says no surgery.... what more is there to say? (and let's just leave it at that).....  I think we all could have seen that last one coming.  I call that one the "way to go, Joe!" case.

Until the next time, hang on to your Post-It notes!

Cassandra Roberts

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