State News : Delaware

The Department of Labor has issued a Final Order (effective: 8/11/24) for the publication of the revised Healthcare Practice Guidelines (which govern treatment of workers’ compensation patients in Delaware for certain common classes of work injuries).

This Order repeals all prior Practice Guidelines and replaces them with the revised Practice Guidelines, as approved by the Workers Compensation Oversight Panel.

The revised Guidelines are available on the Department of Labor’s website, specifically: Health Care Practice Guidelines - Delaware Department of Labor.

The most significant changes are to the Chronic Pain Guidelines, including language limiting the use of narcotic medication.

It is important to note that neither ortho-biologics for spinal disorders, nor medical marijuana, were added to the Healthcare Practice Guidelines in connection with these revisions. It is expected that these issues may be addressed in the future.

Should you have any questions, please contact any partner in our Workers’ Compensation Department. 

In a Petition filed January 23, 2023, claimant alleged that she developed Chronic Inflammatory Response Syndrome (“CIRS”) as a result of mold exposure at her workplace. Claimant suffered from a variety of treatment resistant symptoms and was diagnosed with CIRS by her functional medicine physician, Dr. Matta. His theory was that mold in claimant’s workplace was causing her chronic symptoms. Her employer, Athletico Physical Therapy, argued that CIRS is a broad diagnosis with many potential causes, and that it would be impossible to identify the origin of the symptoms and whether the diagnosis stemmed from the workplace or if its roots were elsewhere. 

In order to prove that her CIRS was an occupational illness, claimant needed to establish that the CIRS was a natural incident of her occupation at Athletico Physical Therapy, such that working there presented a risk that was distinct and greater than employment in general; however, evidence brought to light at hearing poked holes in the idea that her condition began at work.

Testimony by claimant’s treating physician and the employer’s medical expert, Dr. Gelman, revealed that her blood contained traces of twelve types of mold, only four of which were found at her job; the mold that was found at her job was common to indoor environments and only slightly above the normal range; her workplace and around her home displayed similar quantities of the same types of mold; and the mold that had the highest concentration in her blood was not present at her workplace. Additionally, claimant had a plethora of other medical conditions that could have contributed to a CIRS diagnosis, and her symptoms began while she was on vacation in Florida - not while she was at work. Lastly, Dr. Matta conceded under cross-examination that he could not identify which of the twelve types of molds found in claimant’s blood were the actual cause of symptoms, nor could he exclude any as the culprit.  Because of these reasons, the Board denied the Petition outright, stating that claimant had failed to show that the conditions in her workplace were a distinct hazard, worse than employment in general and capable of leading to a diagnosis of CIRS on their own.

 Should you have any questions regarding this decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.

Elena Doherty v. Athletico Physical Therapy, IAB No. 1532122 (May 29, 2024)

Claimant was involved in a work-related 9/24/20 motor vehicle accident resulting in injuries to his ribs, bilateral wrists, pelvis and right foot. Claimant had previously undergone two unrelated lumbar spine surgeries involving fusions, first at L4-5 and most recently at L3-4. After this work accident, the claimant underwent two lumbar spinal fusions, performed in February 2021 and May 2021, culminating in a combined lumbar fusion from T10-L5. The claimant filed a Petition to Determine Additional Compensation Due seeking acknowledgement of a low back injury, including payment of the surgeries, and recurrence of total disability. A Board Hearing was held on 12/8/23 at which time the Board appropriately denied claimant’s Petition, ruling the low back injury was not causally related to the work accident and claimant did not sustain a work-related recurrence of total disability.

The Board opined it found “most interesting” the “timeline and chronology of events and emergence of low back issues … in the context of [Claimant’s] preexisting condition.” The crucial facts included the claimant’s prior back injury, the claimant’s prior low back surgeries in 2013, and 6 months before the accident in 2020, as well as pre-accident CT scan images. The claimant’s lumbar spine was fused, with a “cage” inserted into his spinal column in 2013 and again in early 2020. CT scans from before the work accident revealed the surgical cage had migrated beyond the interior cortex of his spine before the work accident even occurred.

Claimant argued that his surgical hardware had failed because of the work accident, which created the need for the final two lumbar spine surgeries. Drs. Piccioni and Rushton testified for the Employer, stating that immediately after the car accident, the claimant identified no low back complaints during his nine-day stay in the hospital. The doctors agreed that if this car accident caused the hardware to fail, then the claimant would have felt similar or even more pain compared to his other factures. The doctors agreed the pre-accident CT scans showed the cage migrating already, and the “wheels were already in motion” for the claimant to need additional back surgery. Post-accident X-Rays were also compared to the pre-accident films, which clearly showed the surgical cage, implanted months prior to his work accident, had migrated but was stable after the trauma of the car accident. Finally, claimant’s surgical hardware failed again, this time between the third and fourth surgeries. If it could fail then with no trauma, then it could have failed previously even without the work accident, contrary to the opinions of claimant’s experts.

The Board agreed that there is no evidence that the work-related trauma accelerated or impacted the claimant’s pre-existing low back condition. The Board issued a Decision finding the low back injury was not causally related to this work accident but was an ongoing issue the claimant had had for many years pre-dating the accident. Finally, because claimant’s doctors linked disability to the low back, the Board found claimant did not sustain a work-related recurrence, and thus the Petition was denied outright.

Should you have any questions regarding this Decision, please contact Nicholas Bittner or any other attorney in our Workers’ Compensation Department.

Young v. IG Burton & Company, Inc., IAB Hrg. No. 1510414 (Dec. 20, 2023)

The Claimant/Appellant, Barry Mullins, was diagnosed with ocular melanoma in 2010 and passed away in 2021. Claimant was awarded a disability pension as a result. Claimant’s widow, Melissa Mullins, filed a Petition with the Industrial Accident Board on April 22, 2022, seeking workers’ compensation survivor benefits, based upon the City of Wilmington Pension Code. An Industrial Accident Board Hearing took place on December 8, 2022, where Employer argued benefits paid through the City of Wilmington Pension Code did not constitute or establish liability for Workers’ Compensation benefits relating to an occupational disease. The Board ultimately found the Claimant had failed to prove entitlement to workers’ compensation benefits in relation to his death from ocular melanoma.  

The Claimant then appealed this Decision to the Superior Court. It was the Claimant’s position that the City “acknowledged” the claimant’s injury by paying a disability pension to the Claimant’s widow, claiming the presumption of a work-related condition was unrebutted as a result. It was the Employer’s position that the cause of the Claimant’s condition was not related to his employment with the City. The Employer further argued that payment to the Claimant’s widow through the Pension Code is independent from any payment under the Workers’ Compensation Act.

The Superior Court agreed with the Board Decision. Establishing causation of a work-related occupational disease requires evidence “the employer’s working conditions produced the ailment as a natural incident of the employee’s occupation in such a manner as to attach to that occupation a hazard distinct from and greater than the hazard attending employment in general.” The Superior Court ruled payments under the Pension Code do not in turn make the City liable for causation under the Workers’ Compensation Act, as a finding of causation requires claimants to meet the burden established in the Act. The Court noted this was consistent with comments made in a prior Board Decision (Armstead v. City of Wilmington, IAB No. 1485578, May 6, 2021), in which the Board noted the standard under the Pension Code does not translate to the causation standard in the Workers’ Compensation Act.

Should you have any questions regarding this decision, please contact Nick Bittner or any other attorney in our Workers’ Compensation Department.

BARRY MULLINS v. CITY OF WILMINGTON, N23A-01-004 CLS (August 18, 2023).

There are many sections of the Workers’ Compensation Act that may subject employers/carriers to fines, as follows:

·      19 Del. C. §2313 – Where an employer or insurance carrier fails within 10 days after knowledge of the occurrence of an accident resulting in personal injury to file a First Report of Injury, the employer may be fined between $100.00-$250.00. Reports made under this section are not admissible in evidence against the employer.

·      19 Del. C. §2320(8) – “Costs legally incurred may be taxed against either party or apportioned between the parties at the sound discretion of the Board, as the justice of the case may require.”

·      19 Del. C. §2322E(d) – Within 14 days of the issuance of an Agreement for any period of total disability, the employer shall provide to the health care provider/physician most responsible for the treatment of the employee’s work-related injury and to the employer’s insurance carrier, if applicable, a report of modified duty jobs which may be available to the employee. The insurance carrier for an insured employer shall send to such employer the aforementioned report for completion, and shall be independently responsible for providing a completed report of modified duty jobs to the health care provider/physician. 19 Del. C. 2322F(g) provides for fines of between $1,000.00-$5,000.00.

·      19 Del. C. §2322F(h) - An employer or insurance carrier shall be required to pay a health care invoice within 30 days of receipt of the invoice as long as the claim contains substantially all the required data elements necessary to adjudicate the invoice, unless the invoice is contested in good faith. If the contested invoice pertains to an acknowledged compensable claim and the denial is based upon compliance with the health care payment system and/or health care practice guidelines, it shall be referred to utilization review. Any such referral to utilization review shall be made within 15 days of denial. Unpaid invoices shall incur interest at a rate of 1% per month payable to the provider. 19 Del. C. §2322F(g) allows for fines of between $1,000.00-$5,000.00.

·      19 Del. C. §2346 – The Board may impose a fine not to exceed $500.00 for each use of the term “independent medical examination” or “IME”.

·      19 Del. C. §2362 – Requires payment of final Board Awards and settlement agreements within 14 days, and permits fines of between $500.00-$2,500.00 for non-compliance.

·      Huffman – If a Board Award or Agreement between the parties is not paid within 30 days of a final Award or Agreement, claimant can assert a Huffman demand under the Wage Payment Collections Act. If not paid within 30 days of the demand, Huffman sanctions/penalties include a liquidated damage payment of 10% per day of the outstanding balance up to 100% liquidated damages, costs of any filing (Superior Court Complaint) and a claimant’s attorney’s fee (rate of whatever is reasonable -- could be +/- $300.00 per hour). This is in addition to any other penalties otherwise available under the Workers’ Compensation Act.

·      19 Del. C. §2365 retaliation – fines of between $500.00-$3,000.00.

·      19 Del. C. §2374 – minimum of $250.00 per day or $10.00 per employee, whichever is greater, for the time period no workers’ compensation insurance policy is in effect.

·      19 Del. C. §2386 – whenever an insurance company or self-insurer violates this chapter, neglects or refuses to comply with this chapter, or willfully makes any false or fraudulent statement of its business or condition or a false or fraudulent return, it shall be fined between $100.00-$1,000.00 per offense.



Should you have any questions, please contact any attorney in our Workers’ Compensation Department. 

Claimant filed a Petition to Determine Compensation Due seeking acknowledgement of injuries to his back, neck, right hand/wrist and head, as well as payment of medical expenses and temporary total disability benefits. Employer disputed the entire claim and, in the alternative, argued for resolution of any work injuries. The Board granted the Petition in part, acknowledging a sprain and strain of the low back and of the right hand/wrist and payment of outstanding medical expenses to the right hand/wrist. The Board denied compensability for the neck and head injury as well as total disability benefits.

A key factor in the outcome involved issues with the claimant’s treating doctor, Dr. Cary. The Board expressed concern as to Dr. Cary’s treatment of the claimant and recordkeeping of same. Dr. Cary’s treatment violated 19 Del. C. Section 2322D(a)(1), which requires that a health-care provider providing treatment to an injured employee under the Delaware Workers’ Compensation Statute be a certified provider at the time of treatment or obtain preauthorization for each health-care produced, office visit, or health service. Dr. Cary was not certified when he started to treat the claimant. Another issue involved Dr. Cary referring the claimant to a work hardening program despite having released the claimant to full-duty work with no restrictions. If the claimant was released to full duty, then the Board found he would not have needed a work hardening program.

As for recordkeeping, the Board found Dr. Cary failed to comply with the requirements relating to prescribing medications, including narcotics. In discussing these requirements, the Board noted Dr. Cary failed to document checking the prescription drug monitoring program. He failed to document discussions with the claimant about the risks and benefits of the medications. When asked about this during deposition testimony, Dr. Cary responded stating he “could not possibly document every single thing that he says or does to a patient and every single thing the patient says to him.”  The Board stated it was “alarming” that after Dr. Cary’s medical license was already suspended previously, he was again not in compliance with his obligations when prescribing medications. The Board explained Dr. Cary was demonstrating “the same types of cavalier and unprofessional recordkeeping and medical oversight he exhibited leading up to his suspended license.” Due to these findings, in addition to other evidence, the Board did not find Dr. Cary credible, which contributed to the denial of certain benefits and resolution of the remaining work injuries.

Should you have any questions regarding this decision, please contact Nick Bittner or any other attorney in our Workers’ Compensation Department.

Donald Savage v. Shoprite, IAB Hrg. No. 1518646 (May 26, 2023).