Delaware Supreme Court holds that a lapse in a Delaware doctor’s provider certification under the Workers’ Compensation Act rendered a cervical spine surgery non-compensable as a matter of law.
The claimant injured his cervical spine in a work accident on August 1, 2002. He came under the care of Dr. Bikash Bose in 2014. On July 2, 2019, Dr. Bose performed cervical fusion surgery that was acknowledged as compensable and paid for by the employer/carrier. When the fusion did not heal in a timely fashion, Dr. Bose performed a second sugary on February 22, 2021. The employer disputed the compensability of the second surgery, and the claimant filed a petition. During Dr. Bose’s deposition, it was revealed he may not have been certified as a workers’ compensation provider under 19 Del. C. § 2322D of the Workers’ Compensation Act at the time of the 2021 operation.
At the Industrial Accident Board hearing, the employer conceded the second surgery was reasonable, necessary and causally related to the work accident, but argued it was not payable because Dr. Bose was not certified at the time of the procedure. It was determined that Dr. Bose was first certified in 2008 and was re-certified four times over the years, but his certification lapsed from August 31, 2019, to March 29, 2021. Although this was claimed to be an “administrative error” resulting from the COVID-19 pandemic, the Board concluded certification was mandatory and uncertified treatment was not compensable without preauthorization.
On appeal, the Delaware Superior Court affirmed the Board’s decision and rejected the claimant’s argument that a lapse in certification should be treated differently from a lack of certification on the part of a provider. The exceptions in Section 2322D are explicit and do not include a “good faith” exception. The claimant appealed again to the Delaware Supreme Court.
The Supreme Court held that, although there was no explicit consequence in the statute for failing to adhere to the two-year re-certification requirement, the plain language indicates the requirements are of an ongoing nature in order to keep certification active. The court declined to follow prior Board decisions that allowed a “de minimus” exception for Delaware providers who had certification lapses. Any further exceptions needed to be crafted by the General Assembly, not the courts.
The claimant’s final contention, that he will potentially be liable for the surgery bills through no fault of his own, was not ripe for a decision.
What’s Hot in Workers’ Comp, Vol. 26, No. 11, November 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.