Absence Makes the Heart Grow Fonder In This Delaware Utilization Review Appeal

Absence Makes the Heart Grow Fonder In This Delaware Utilization Review Appeal

So here is the sub-title: IAB Denies Employer's UR Appeal Despite Lack of Testimony from Claimant's Treating Doctor.  Pretty catchy, huh?  Props this week to claimant attorney Michael Galbraith who flagged for my interest the case du jour. Before I read this case, issued by the Board last week, I would have thought, going out on a limb, that the provider who is the subject of a UR appeal would be expected to testify.  My guess is that defense counsel in this case shared that misapprehension.  Ah!! Never a dull moment in Delaware workers comp.  Every day a new monkey jumps out of the barrel.

What am I talking about? Lionel Pizzaro v. Wal-Mart Associates, IAB# 1342542 (4/12/12).  Mr. Barber and Mr. Epolito sitting for the Board and decision authored (once again!) by Angela "Quick Fire" Fowler (however does she do it?)

Here is the deal: A Utilization Review decision certified certain pain management modalities offered by Dr. Balu, including injection therapy, medication management and diagnostic imaging.  The Employer appealed and offered the testimony of Dr. Keehn.  Dr. Balu was foreclosed from testifying, as discussed in my post of 3/14/12-  The case of the Purple Robe: A little Motion Day Magic (Pizarro v. Wal-Mart, IAB#1342542 (3/6/12)(ORDER) (medical expert cannot later be added where there is no compliance with the original 30 day and the Hearing date is later bumped by the IAB due to its docket).

Here is what Mike Galbraith has to say about the merits hearing decision:

"I would be wary to suggest that the principal proposition one should take from this case is that one does not need the provider to testify at a hearing on appeal of a UR determination.  Instead, I would suggest that this case stands for the proposition that an employer must provide credible and persuasive evidence in order to rebut the presumption of reasonableness and necessity when challenging a UR certification decision.

The Employer's expert, Dr. Keehn, testified that Dr. Balu's treatment was unnecessary because he believed that Claimant's work-related injuries resolved within a few months after the work accident.  The Board recognized that, in essence, Dr. Keehn's opinions challenged the compensability of the treatment based on causation - an argument that the Employer waived by submitting Dr. Balu's treatment to UR.  Therefore, the issue of compensability turned on whether the treatment was reasonable and necessary.  Since Dr. Keehn agreed that Dr. Balu's treatment complied with the Health Care Practice Guidelines, the Board determined that the Employer was unable to meet its burden to show the treatment was unreasonable and unnecessary."

I am nonetheless impressed with Mike and this outcome.  At first blush I would not have thought that one could prevail in a UR appeal without the provider.  I suspect I am not alone in that thinking.  Here is what I take from all of this:

   My prior observation that this whole UR appeal process is ridiculously claimant-friendly is only bolstered by this particular ruling

   This case in not so subtle fashion revisits the subject of prior posts for the proposition that if you send it to UR, you abandon any semblance of a causation defense and that includes the argument that the original work injury has resolved

   Query whether the DME doctor would have alittle more sway if they were a local certified provider and not one of the Beltway Bandits (also commonly known as the Maryland Marauders and the "Docs in a Box")

   To quote the Board's decision, "Claimant is under no burden to produce evidence in support of the reasonableness and necessity of care unless and until the Employer provides credible and persuasive evidence that the care was not reasonable or necessary".

Now that's what I call easy-peasy lemon squeezy.....LOL!!

Irreverently yours,
Sassy Cassy

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

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