A Momentary Lapse of Certification… & Dr. Bose Bounces a Check

Props to my partner, Gary Baker, for his latest victory in today’s case du jour.  I give you  Joseph Wilson v Gingerich Concrete, K21A-06-002 JJC (Del. Super. Ct. Mar. 9, 2022) in which the Superior Court upheld the Board’s denial of payment to Dr. Bose due to a lapse in his workers’ comp provider certification. The lapse in question was one of 18 months and the outcome pivoted on the plain language of Section 2322D.

The appellant’s arguments in favor of payment are worthy of mention:

• A lapse in certification does not equate to a lack of certification

• Once certified, always certified, and a lapse is apparently an innocuous event

• The more stringent Regulations involved (29 Del. Code Sections 10101-10161) do not specify that a lapsed certification is synonymous with no certification.

• There was no notice to Dr. Bose from the DOL before he was removed from the list of certified providers.

• The Wyatt v. Rescare Home Care case can be distinguished from this one in that the surgeon there was never certified, whereas Dr. Bose certified and re-certified on multiple prior occasions including after he performed the surgery in question

Bottom line is there are limited exceptions to the provider certification requirement articulated in Section 2322D and an additional “good faith” exception is not one of them.  As the Court recognized, a harsh outcome for both the injured worker and the provider, but the statute allows no room for non-compliance. 

Irreverently Yours,

Cassandra Roberts