Submitted: January 2, 2019
an Appeal from the Decision of the Industrial Accident Board.
F. Schmittinger, Esquire of Schmittinger and Rodriguez, P.
A., Dover, Delaware; attorney for Appellant.
Morris-Johnson, Esquire of Marshall Dennehey Warner Coleman
& Goggin, Wilmington, Delaware; attorney for Appellee.
WILLIAM L. WITHAM, JR. RESIDENT JUDGE
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 ¶ 188.8.131.52, 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
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
AND PROCEDURAL BACKGROUND
appeal arises as part of the Appellant's IAB petition
regarding surgical treatment that was heard by the Board on
February 13, 2018.
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. Dr. Fedder was
responsible for providing the Appellee with an evaluation of
the Appellant and his subsequent deposition testimony.
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, ¶ 184.108.40.206. The Appellant's motion sought the
mandatory fine pursuant to the regulation pursuant to 19
Del. C. § 2322F.
Board issued its decision on March 5, 2018, granting the
Appellant's petition for surgical
treatment. However, the Board reserved hearing
arguments on the Appellant's objection to Dr.
Fedder's fee until a second hearing.
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, ¶ 220.127.116.11, 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
Ultimately, the Board denied the Appellant's motion on
June 27, 2018, and found that a fine was not warranted based
on the facts. 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.
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. However, while
the Board noted the Appellee's standing objection and
Appellant's counter in its opinion, the Board failed to
determine the issue.
Appellant filed a timely Notice of Appeal on July 17, 2019.