State News : Delaware

Claimant filed a Petition to Determine Compensation Due seeking acknowledgement of injuries to his back, neck, right hand/wrist and head, as well as payment of medical expenses and temporary total disability benefits. Employer disputed the entire claim and, in the alternative, argued for resolution of any work injuries. The Board granted the Petition in part, acknowledging a sprain and strain of the low back and of the right hand/wrist and payment of outstanding medical expenses to the right hand/wrist. The Board denied compensability for the neck and head injury as well as total disability benefits.

A key factor in the outcome involved issues with the claimant’s treating doctor, Dr. Cary. The Board expressed concern as to Dr. Cary’s treatment of the claimant and recordkeeping of same. Dr. Cary’s treatment violated 19 Del. C. Section 2322D(a)(1), which requires that a health-care provider providing treatment to an injured employee under the Delaware Workers’ Compensation Statute be a certified provider at the time of treatment or obtain preauthorization for each health-care produced, office visit, or health service. Dr. Cary was not certified when he started to treat the claimant. Another issue involved Dr. Cary referring the claimant to a work hardening program despite having released the claimant to full-duty work with no restrictions. If the claimant was released to full duty, then the Board found he would not have needed a work hardening program.

As for recordkeeping, the Board found Dr. Cary failed to comply with the requirements relating to prescribing medications, including narcotics. In discussing these requirements, the Board noted Dr. Cary failed to document checking the prescription drug monitoring program. He failed to document discussions with the claimant about the risks and benefits of the medications. When asked about this during deposition testimony, Dr. Cary responded stating he “could not possibly document every single thing that he says or does to a patient and every single thing the patient says to him.”  The Board stated it was “alarming” that after Dr. Cary’s medical license was already suspended previously, he was again not in compliance with his obligations when prescribing medications. The Board explained Dr. Cary was demonstrating “the same types of cavalier and unprofessional recordkeeping and medical oversight he exhibited leading up to his suspended license.” Due to these findings, in addition to other evidence, the Board did not find Dr. Cary credible, which contributed to the denial of certain benefits and resolution of the remaining work injuries.

Should you have any questions regarding this decision, please contact Nick Bittner or any other attorney in our Workers’ Compensation Department.

Donald Savage v. Shoprite, IAB Hrg. No. 1518646 (May 26, 2023).

Claimant was involved in a compensable work accident and was placed on total disability. He filed a Petition to add the left shoulder as a compensable body part, while the Employer filed a Termination Petition to end total disability and to address resolution of injuries. Right before the Hearing, the Claimant conceded to end total disability, and thus the Employer communicated to the Workers’ Compensation Fund a request for it to waive reimbursement of total disability, while noting the Hearing was still going forward on other issues. The Fund agreed.  

The morning of the Hearing, the Claimant requested a continuance of the resolution issue. The Board granted the continuance, and the Hearing went forward solely on the left shoulder issue. A few days later, the Board issued the Order on the continuance, which prompted the Fund to renege on its waiver of reimbursement; the Fund argued the continuance allowed it to bring in evidence to justify reimbursement and began scheduling a deposition. The Employer filed a Motion to Enforce the settlement/waiver, which was presented at a Legal Hearing, with the Board taking the matter under advisement while it considered whether to grant or deny the motion. 

The Board subsequently issued a Decision on Claimant’s Petition, finding the left shoulder was never injured in the work accident. It accepted the testimony of Dr. Matz, who discussed the lack of shoulder complaints in the early records, the lack of acute MRI findings, and other data points arguing against a specific shoulder injury. As such, claimant’s Petition was denied. 

A week later, the Board issued its ruling on the Motion to Enforce. The Order confirmed there was no indication of “deception or sharp practice on the part of Employer’s counsel,” and that the Employer was fully up front with the Fund about what it was seeking and what it intended to do; the continuance was strongly opposed by the Employer, and thus there was no foul play. The simple fact was the Fund had agreed to waive reimbursement, and the continuance was solely on the issue of resolution, and not on the issue of termination of total disability. Therefore, the Board ordered the Fund to abide by its waiver, resulting in no reimbursement from the Employer. 

Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department. 

Gary Steadman v. Evergreen Waste Services, IAB No. 1519915, Decision on Petition to Determine Additional Compensation Due, dated Nov. 21, 2022, Order on Motion to Enforce, dated Nov. 28, 2022

Claimant was allegedly injured in a work incident on July 25, 2018. Following a Hearing, the Industrial Accident Board issued a Decision finding claimant had sustained only a limited injury which had resolved, with treatment only compensable through January 2, 2019. Later, several medical bills for treatment after the date of resolution of injury were paid by accident.

Upon learning of the mistaken payments, the adjuster immediately requested reimbursement, with Heckler & Frabizzio providing a letter to be sent to each provider, explaining the consequences of the Board’s prior Decision, and reinforcing the need to issue reimbursement. However, none of the providers complied. The Employer filed a Motion with the Board, seeking to compel reimbursement of the mistaken payments. At the Legal Hearing, no physicians were present, despite receiving notice. Claimant’s attorney was present and argued against ordering reimbursement, out of concern the providers would then seek payment from the claimant.

In an Order dated August 11, 2022, the Board agreed with the Employer and granted the Motion. Because the treatment was all administered by certified providers under the Workers’ Compensation System, and because the Board has statutory authority over medical payments, the Board was empowered to compel reimbursement. Further, as the payments were issued for treatment after a clear cutoff date, the Board agreed they were made by mistake. As such, the providers were required to issue reimbursement within thirty days, or else they would be subject to further sanctions from the Board.

Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.

Patricia Wesley v. State of Delaware, IAB No. 1475026 (Aug. 11, 2022).

Claimant was involved in an 8/30/18 work related motor vehicle accident while working as a police officer. The neck and low back were accepted by Employer. She underwent a compensable two-level cervical fusion surgery on 8/7/19.

On 9/15/21, Claimant filed a Petition seeking 26% permanent impairment to the cervical spine and 10% permanent impairment to the lumbar spine, based upon Dr. Rodgers’ opinion. Dr. Rodgers rated permanency under the 5^th Edition of the AMA Guidelines. Employer contested the ratings based upon the opinion of Dr. Piccioni, who found there was 9% permanency to the cervical spine and 3% permanency to the lumbar spine. Dr. Piccioni rated permanency under the 6^th Edition of the AMA Guidelines.

After trial, the Board issued a Decision dated 7/7/22 finding in favor of Employer, and awarding Dr. Piccioni’s ratings. The Board noted that Claimant’s cervical fusion was successful. The surgery improved her pain and function. The treating surgeon released Claimant to work without any restrictions for the neck or back thereafter. Post-surgery imaging showed no nerve root compromise. Claimant declined offered lumbar injections. Claimant did not seek a second opinion for the neck or back. The Board also accepted the opinion of Dr. Piccioni that the 6^th Edition focuses more on objective findings and function, whereas the 5^th Edition relies more on subjective complaints.

Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.

Mobley v. City of Wilmington, IAB Hrg. No. 1476680 (July 7, 2022).