Submitted: January 14, 2014
Upon Consideration of Appellant's Appeal From Decision of the Industrial Accident Board
Cheryl Ann Ward, Esq., Franklin & Prokopik, Wilmington, Delaware. Attorney for Appellant.
Walt F. Schmittinger, Esq., and Kristi N. Vitola, Esq., Schmittinger & Rodriguez, Dover, Delaware. Attorneys for Appellee.
VAUGHN, President Judge
This is an appeal from a decision of the Industrial Accident Board granting the claimant's petition to Determine Additional Compensation relating to a 2010 spinal surgery and subsequent pain management treatment. For the reasons which follow, I conclude that the medical expenses relating to the claimant's spinal surgery are not recoverable under 19 Del. C. § 2322. I also conclude that the Board's decision that the claimant's pain management treatment was preformed by a certified medical provider, was reasonable and necessary, and was related to the claimant's work-related accident is support by substantial evidence and is free from legal error.
In February 2001, the claimant suffered a work-related neck injury. As a result of the work-related injury, the claimant underwent spinal surgery in 2001 and received disability benefits. On August 11, 2010, Dr. Sonti, a Maryland surgeon, preformed a second spinal surgery on the claimant, allegedly relating to the claimant's 2001 work accident. Although other doctors in Dr. Sonti's medical practice firm were certified, Dr. Sonti was not certified under 19 Del. C. § 2322D(a)(1) at the time he performed the claimant's surgery.
On August 23, 2010, the claimant filed two petitions for Determination of Additional Compensation. The first petition sought retroactive preauthorization for the cervical spine surgery preformed by Dr. Sonti almost two weeks earlier. The second petition demanded total disability benefits and compensation for medical expenses relating to the claimant's 2010 spinal surgery. The two petitions were consolidated. On November 12, 2010, the employer moved to dismiss the claimant's petition because Dr. Sonti was not certified under the Delaware Workers' Compensation Act and lacked preauthorization to preform the spinal surgery. The Board held a hearing on December 22, 2010 to evaluate the merits of the employer's motion to dismiss.
At the hearing, the employer argued that Dr. Sonti was not certified nor had preauthorization to preform the surgery and, thus, the claimant's claims for Dr. Sonti's medical expenses should be dismissed. The claimant argued that a treating doctor did not need to be certified or preauthorized to preform the medical treatment so long as the treatment was "reasonable, necessary, and related to the work injury." Additionally, the claimant argued that the preauthorization should relate back to before the surgery because delaying surgery for preauthorization would promote "unreasonable form over substance."
On December 21, 2010, the Board dismissed the claimant's claim for Dr. Sonti's medical expenses because, as the Board determined, the statute requires that if the claimant resides in Delaware and/or uses a Delaware provider, the provider must be certified or receive preauthorization to be reimbursed for expenses under the Delaware Worker's Compensation Act. The Board also concluded that retroactive preauthorization was insufficient under the circumstances. On September 15, 2011, the claimant appealed the Board's decision to this Court.
On November 28, 2012, this Court held that 19 Del. C. § 2322C(6) did not operate as a complete bar to compensation recovery when medical services were preformed by an uncertified medical provider. This Court found that the statute was ambiguous and that where the medical provider is not certified nor has obtained preauthorization, that the presumption of "reasonable and necessary" falls away and a claimant must show that the medical expenses were reasonable and necessary to treat the work-related injury. This Court remanded the case to the Board to determine whether the claimant's 2010 spinal surgery was reasonable and necessary.
On September 11, 2012, the claimant filed a petition to Determine Additional Compensation demanding compensation for the medical expenses associated with his ongoing pain management. Following the claimant's 2010 spinal surgery, Dr. Sonti referred the claimant to Dr. Dickinson for pain management treatment. Dr. Dickinson began treating the claimant on May 19, 2011 for his persistent and chronic back pain. Dr. Dickinson is certified under the Delaware Workers' Compensation Act.
On May 2, 2013, the Board heard the remand and evaluated the claimant's September 2012 petition for ongoing pain management. The Board accepted numerous medical providers' opinions regarding the reasonableness and necessity of the claimant's 2010 spinal surgery and pain management administered by Dr. Dickinson. Ultimately, the Board concluded that the surgery and the following pain management treatment ...