Board denies petition for increased infusion treatment bills under theory that Delaware Fee Schedule did not apply; Board should order payment of “reasonable cost” of treatment. Board held that treatment in accordance with §2322B(7) was correctly paid.

Ms. Taylor was injured in a compensable work accident on September 16, 2016, and subsequently developed Complex Regional Pain Syndrome (CRPS) of her right upper and right lower extremities. Beginning in 2017, she regularly received ketamine infusion procedures from a surgery center in Pennsylvania as part of her treatment plan. The infusion procedure typically takes multiple hours before the patient is ready for discharge. The amount billed by the surgery center for each infusion was $8,700. The employer, the State of Delaware, initially paid a higher amount but later corrected the reimbursement to around $547, per the Delaware Fee Schedule. The charge versus payment disparity prompted the claimant to file a petition to determine whether the employer was paying the correct amount.

The Industrial Accident Board held that 19 Del. C. § 2322B(7) applied because the surgery center was an out-of-state provider not licensed in Delaware or certified under the Delaware workers’ compensation payment system. Further, the Delaware Fee Schedule was the appropriate mechanism to determine the payment, and the employer’s medical coding/billing expert established that the specific procedure codes at issue were reimbursed correctly. The Board rejected the claimant’s argument that the “reasonable cost” provision of 19 Del. C. § 2322(b) applied pursuant to the Quaile v. National Tire and Battery decision (summarized in the September 2022 edition of this newsletter). The Board reasoned that this was not refused or contested treatment because the employer had made payments and agreed to the compensability. The Board explained that the proper forum to obtain a higher rate for ketamine infusions was the Workers’ Compensation Oversight panel established pursuant to the Delaware Workers’ Compensation Act. The petition was denied.

_{What’s Hot in Workers’ Comp, Vol. 26, No. 10, October 2022 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2022 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}