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This and That Services Co., Inc. v. Nieves

Superior Court of Delaware

June 7, 2019

THIS AND THAT SERVICES CO., INC., Employer-Below, Appellant,
v.
RAYMOND NIEVES, Claimant-Below, Appellee.

          Submitted: May 21, 2019

         Citation on Appeal from the Decision of the Industrial Accident Board dated 09/20/18 - Hearing No. 1453333

          John J. Ellis, Esquire, Heckler & Frabizzio, P.A., Attorney for Employer-Below/Appellant.

          Walt F. Schmittinger, Esquire, Schmittinger & Rodriguez, P.A., Attorney for Claimant-Appellee.

          MEMORANDUM OPINION

          Craig A. Karsnitz Judge.

         This case involves an "appeal" of a Utilization Review (the UR process) decision to the Industrial Accident Board ("Board"). I use quotation marks around the word appeal because the parties dispute the nature of the proceeding and whether it is a true appeal. In any event Employer challenged its responsibility to pay for medical expenses including medication incurred by its employee as a result of treatment for his work accident. As required by Delaware Worker's Compensation law[1] Employer initiated the UR process. Unsatisfied with the decision of the UR evaluator Employer requested review by the Board. In due course the parties prepared for a Board hearing, including the taking of medical witness depositions. Just prior to the scheduled hearing Claimant filed a motion in limine and motion to dismiss because, according to Claimant, events subsequent to the filing of the "appeal" rendered it moot.

         The Board considered the motions on the day scheduled for the hearing and granted them both. The Board granted the motion in limine to limit any hearing to one set of prescriptions issued by one of Claimant's treating doctors, Dr. Balu, in June of 2017. The motion was based upon Claimant's surgery in August, 2017 which according to Claimant changed everything. The Board's ruling on this issue was without comment. After being advised that Employer had paid for Dr. Balu's office visit, the Board granted Claimant's motion to dismiss the appeal as being moot.

         On the record before me the issue concerning payment for the medication is still unresolved. As a result I am of the opinion that it is not moot, and reverse the decision of the Industrial Accident Board, and remand the case for the Board to hear and decide the issues between the parties.

         FACTS

         Many of the facts are undisputed and unnecessary for consideration in this opinion. Employer sought utilization review of all treatment by Dr. Balu including his prescription for pain medications. The reviewer found all of the treatment reasonable and necessary and approved it. The Employer then "appealed" the reviewer's decision, but in the course of the appeal narrowed the issue to a challenge of only the prescription for pain medications. The parties filed a stipulation with the Board which stated that the issues to be considered by the Board "...include whether narcotic medication as part of Claimant (sic) pain management treatment from 6/13/17 and on going has been reasonable and necessary".

         Claimant filed a motion in limine to exclude all claims following his surgery, performed in August 2017, and a motion to dismiss claiming the issue before the Board was moot. In support of the mootness defense Claimant through counsel provided the Board with unauthenticated records showing the Employer paid for the office visit with Dr. Balu. It was following that visit that Dr. Balu prescribed the medication at issue. The Board decided that payment for the office visit mooted the issues and dismissed the case.

         ANALYSIS

         1. An Actual Controversy Existed

         As conceded by Claimant's counsel at oral argument, no factual record exists to support the claim that Employer paid for the medication in question. The only factual record created included the payment records supplied by Claimant's attorney. According to the transcript before the Board, the records ...


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