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Streifthau v. Bayhealth Medical Center

Superior Court of Delaware

March 21, 2019

CAROLE STREIFTHAU, Claimant Below-Appellant,
v.
BAYHEALTH MEDICAL CENTER, Employer Below-Appellee.

          Submitted: January 2, 2019

          Upon an Appeal from the Decision of the Industrial Accident Board.

          Walt F. Schmittinger, Esquire of Schmittinger and Rodriguez, P. A., Dover, Delaware; attorney for Appellant.

          Keri Morris-Johnson, Esquire of Marshall Dennehey Warner Coleman & Goggin, Wilmington, Delaware; attorney for Appellee.

          ORDER

          WILLIAM L. WITHAM, JR. RESIDENT JUDGE

         INTRODUCTION

         1. Before the Court is the appeal of Carole Streifthau (hereinafter "Appellant") from a decision of the Delaware Industrial Accident Board (hereinafter "the Board" or "IAB"). The Board originally considered the Appellant's motion pursuant to 19 Del. Admin. C. § 1341 ¶ 4.16.1.2, at a hearing conducted on May 9, 2018 and denied the motion on June 27, 2018 in favor of Bayhealth Medical Center (hereinafter "Appellee") and Dr. Stephen L. Fedder (hereinafter "Dr. Fedder").

         2. After consideration of the record and the parties' arguments on appeal, the Court finds that the Board did not fully address the Appellee's argument at the hearing that raised an issue regarding the Appellant's possible lack of standing to bring the motion before the Board. As a result, this appeal is hereby REMANDED to the Board for determination and resolution of the Appellant's standing.

         FACTUAL AND PROCEDURAL BACKGROUND

         3. This appeal arises as part of the Appellant's IAB petition regarding surgical treatment that was heard by the Board on February 13, 2018.

         4. As part of its defense, the Appellee retained Dr. Fedder, a certified provider under the Delaware Workers Compensation Act, as a defense medical expert. The Appellee and Dr. Fedder allegedly negotiated Dr. Fedder's services fee and eventually agreed to a fee totaling $5, 000.00.[1] Dr. Fedder was responsible for providing the Appellee with an evaluation of the Appellant and his subsequent deposition testimony.

         5. During the February 13 hearing, the Appellant raised an objection to the fees charged by Dr. Fedder, asserting that the $5000.00 fee was for his deposition testimony only, violating the Delaware's Workers' Compensation Regulations, specifically, 19 Del. Admin. C. § 1341, ¶ 4.16.1.2. The Appellant's motion sought the mandatory fine pursuant to the regulation pursuant to 19 Del. C. § 2322F.[2]

         6. The Board issued its decision on March 5, 2018, granting the Appellant's petition for surgical treatment.[3] However, the Board reserved hearing arguments on the Appellant's objection to Dr. Fedder's fee until a second hearing.

         7. The Board conducted the second hearing on May 9, 2018 and heard oral arguments in consideration of the Appellant's objection. The Appellant argued that both Dr. Fedder and the Appellee were subject to the mandatory fine for its violation of section 1341, ¶ 4.16.1.2, because Dr. Fedder had allegedly charged the Appellee more than $2, 000.00, the amount allowable by law, for his deposition testimony and the Appellee paid $5, 000.00. The Appellee proffered several arguments in response, one of which being that the Appellant had no standing to make the motion on behalf of the employer.[4]

         8. Ultimately, the Board denied the Appellant's motion on June 27, 2018, and found that a fine was not warranted based on the facts.[5] The Board held:

[t]he Fee Schedule is meant to limit the bills that an injured worker can impose on the carrier...it is not meant to restrain a carrier who wants to pay more for its defense medical expert witness testimony.[6]

         The Board further found that Dr. Fedder's deposition fee was in actuality less than $2, 000.00 and justified the remaining $4000.00 as Dr. Fedder's compensation for time spent on other aspects of the case other than testimony.[7] However, while the Board noted the Appellee's standing objection and Appellant's counter in its opinion, the Board failed to determine the issue.[8]

         9. The Appellant filed a timely Notice of Appeal on July 17, 2019.

         THE ...


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