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Butcher v. Wilmington Trust Company

Superior Court of Delaware, New Castle

March 31, 2014

KIM BUTCHER, Appellant,
v.
WILMINGTON TRUST COMPANY, Appellee.

Submitted: January 24, 2014

Upon Appeal from the Decision of the Industrial Accident Board. REMANDED and STAYED.

Michael B. Galbraith, Esquire, (Argued), Gary S. Nitsche, P.A., Weik Nitsche Dougherty & Galbrait, Wilmington, Delaware, Attorney for Claimant-Appellant Kim Butcher.

Danielle K. Yearick, Esquire, (Argued), Andrew M. Lukashunas, Esquire, Tybout Redfearn & Pell, Wilmington, Delaware, Attorney for Employer-Appellee Wilmington Trust Company.

PAUL R. WALLACE, JUDGE

OPINION AND ORDER

I. INTRODUCTION

This appeal is from a May 20, 2013 Decision of the Industrial Accident Board (the "Board")[1] denying Ms. Kim Butcher's Petition to Determine Additional Compensation Due, as well as three Orders of the Board dated October 5, 2012, December 10, 2012, and April 4, 2013. In its May 20, 2013 decision, the Board found that Ms. Butcher had not demonstrated a change in condition to warrant additional treatment; there was no substantial difference in the treatment provided by her two doctors; the initial Utilization Review ("UR") of the first doctor's treatment applied to the second doctor's treatment; and because an appeal of the UR is still pending, the reasonableness and necessity of the second doctor's treatment would be addressed at that appeal.[2] Because the appeal of the UR is still pending, this matter is not ripe for review and is hereby STAYED and REMANDED to the Board for proceedings consistent with this opinion.

II.FACTUAL AND PROCEDURAL CONTEXT

A. Ms. Butcher's Work-Related Injury and Treatment with Dr. Atkins

Ms. Butcher was employed by Wilmington Trust Company ("Wilmington Trust") when, on June 22, 2009, she sustained a back injury during the course and scope of her employment. She notified her employer, who acknowledged her injury as compensable. Shortly thereafter, Ms. Butcher began treating with Dr. William Atkins for her back injury. Wilmington Trust paid for the treatment she received from Dr. Atkins until December 1, 2009.

B. Utilization Review and Subsequent Treatment with Dr. Bandera

On December 1, 2009, Wilmington Trust denied coverage for Ms. Butcher's continuing treatment with Dr. Atkins and submitted the treatment for Utilization Review ("UR"). On December 29, 2009, Ms. Butcher ceased treatment with Dr. Atkins. A UR was issued on February 5, 2010 non-certifying the treatment with Dr. Atkins past December 1, 2009. After approximately seven months, Ms. Butcher began treating again for her back injury, this time with Dr. Peter Bandera, starting on July 26, 2010. (The Board later found Dr. Bandera's treatment to be substantially similar to what Dr. Atkins had performed for Ms. Butcher in 2009.[3]) No pre-approval was sought for Dr. Bandera's treatment.[4] Wilmington Trust denied coverage for a majority of the visits and procedures, with the exception of a few treatments between March and May of 2011. These payments were allegedly made in error, and Wilmington Trust subsequently issued a blanket denial of all treatments.[5] Ms. Butcher continued to treat with Dr. Bandera.

C. Ms. Butcher's First DACD Petition and September 27, 2012 Legal Hearing

It was not until June 11, 2012 that Ms. Butcher filed a Determination of Additional Compensation Due ("DACD") with the Board regarding treatment with Dr. Bandera from July 28, 2010 through the date of filing. A hearing on the merits of the DACD was initially scheduled for October 18, 2013. Wilmington Trust moved to dismiss, citing the February 5, 2010 UR in support of its argument that Dr. Bandera was providing the same treatment as Dr. Atkins, which had been non-certified by the time Ms. Butcher began treating with Dr. Bandera. The Board held a legal hearing on the motion to dismiss on September 27, 2012. It found, in an order dated October 5, 2012, that: 1) Wilmington Trust could rely on the February 5, 2010 UR, and that it was binding as long as Dr. Bandera was performing the same treatment; 2) Ms. Butcher's best fit a "changed circumstances" situation, and thus Ms. Butcher had the burden to prove a change in her condition after December 1, 2009; 3) if Ms. Butcher met her burden of proof, Wilmington Trust would have a chance to submit Dr. Bandera's treatment to a new UR; 4) if Ms. Butcher was unable to meet her burden, the prior UR would govern Dr. Bandera's treatment, and the DACD would be denied.[6] Ms. Butcher moved for reargument on October 16, ...


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