The Witching Hour… for a Provider Certification Lapse and Related Surgery Bill
It’s always a little special when the Supremes decide a workers’ comp issue. And, in keeping with the season, this week’s highlighted case is a little bit frightening if you are on the claimant side of the vee. We bring you Joseph Wilson v Gingerich Concrete & Masonry, No. 114, 2022 (Del. 2022), which boasts a victory for my partner, Gary Baker, but otherwise may strike fear in the hearts of men, ghosts, and goblins. It also defers a potentially really big deal of an issue for another day.
Issue decided: Where a previously certified physician’s provider certification status under the Workers’ Compensation Act lapses and fails to obtain pre-authorization for additional treatment (in this case, surgery), does that negate the carrier’s obligation to pay for the bills under Section 2322D? (YES)
Issue deferred: Where the carrier is absolved of a duty to pay medicals due to a provider certification lapse, can the provider go after the claimant for the amount owed? (This trick-or-treat bag is left empty)
The IAB decision below held in favor of the lapse, exonerating the carrier’s bill payment obligation which was affirmed by the Superior Court. The Supreme Court affirmed and declined to judicially craft a “de minimus” exception to the provider certification mandate of Section 2322D. The physician in question was Dr. Bikash Bose, who had a history of certification on 4 previous occasions. The period of lapse was 19 months. The Court did not embrace claimant’s argument that a “lapse” in certification was distinguishable from a “lack” of certification.
With regard to the issue of whether the claimant could personally be held liable for the bills, the Supreme Court held that issue was not yet ripe given that Dr. Bose had not asserted a claim. Furthermore, the tribunal deemed the record “underdeveloped” in the face of “an extremely limited record where the circumstances surrounding the lapse are largely unexplained.” (Given that the lapse straddled the period August 2019 through March 2021, the Court didn’t buy the whole “blame it on Covid” excuse)
Check out the decision in full as we wait with anticipation for “Gingerich: The Sequel” and what happens when the claimant eventually receives that surgery bill.
Irreverently Yours,
Cassandra Roberts
