August Appeals Round-Up: Utilization Review & The Unrebutted Presumption of Disability Pension?

Aug 23

The summer is about to come to a close and some of us are scrambling to take off for that last hurrah at the beach….. That Dynamic Duo of John Ellis and Nick Bittner boast successful appeals in lieu of a surfboard and boardwalk fries, Ellis from the Supreme Court and Bittner from the Superior Court.

John Ellis weighs in on This and That Services Co. Inc. v. Nieves, 2023 WL 5286043 (Del. 2023) which involved an appeal and a remand and an appeal and a remand and a whole lot more of This and That (literally).

Background: On its final appeal, the issue came down to whether the Superior Court erred in concluding that the IAB could not consider the compensability of the employee’s ongoing narcotic treatment until the employee submitted invoices for payment to the employer and the employer disputed those invoices in the statutory review process (so much for being proactive). The Supreme Court ruled that they did and reinstated the IAB decision below, commenting that the statute itself, Section 2322F(J), provides for UR to address “both proposed or provided health care services.”

Issue No. 2 in this appeal was whether the carrier was required to return to UR when new or subsequent claims are made, even when each new claim refers to treatment originally sent to UR. The answer is a resounding “no.”

In John’s words-

This was a very significant opinion from the Supreme Court. If the Superior Court’s reasoning had been accepted, employers would be prevented from filing for UR and even some petitions before the Board unless a bill or demand for payment was received first. Additionally, multiple UR applications may have been required to address ongoing similar treatment. This opinion confirms that proposed treatment can be at issue and challenged proactively in the UR process and before the Board.

Turning to Nick Bittner’s case, Barry Mullins (Deceased) v. City of Wilmington, 2023 WL 5322292 (Del. Super. Ct. Aug. 18, 2023), the Claimant appealed an IAB denial of benefits for occupational disease (ocular melanoma) where the Board rejected Claimant’s argument that the award of a City disability pension established causation of the disease to employment. The Court cited a prior Board decision, Armstead v. City of Wilmington, IAB# 1485578 (May 6, 2021), which similarly held: “The Employer’s Pension Code does not set the legal standard for causation that this Board must follow.” By analogy, the Court also recognized Jarman v. Willow Grove Meats, 650 A. 2d 1306, 1994 WL 525089 (Del. Sept. 16, 1994) for the proposition that an award of Social Security disability is not binding on the Board in its deliberation, given that Social Security employs a different standard in determining disability from employment.