DE Supreme Court Clarifies Emergency Treatment Exception to Section 2322B(8)(b)

A big shout out to Linda L. Wilson of Marshall Dennehy who sent me her case, decided only yesterday by our Supremes.  It is very timely as we are coming off the glow of last week’s Randy J. Holland Inn of Court Inaugural that Justice Holland authored the decision under scrutiny — Amanda Wyatt v. Rescare Home Care, 81 A.3d 1253 (Del. 2013).

Under 19 Del. Code Section 2322D(a)(1), pre-authorization by the carrier is required for any treatment rendered by a non-workers-compensation- certified provider and in the absence of such pre-authorization, treatment by a non-certified provider lacks the presumption that such treatment is reasonable and necessary. A statutory exception to this exists in those cases where “healthcare provider services [are] provided in an emergency department of a hospital or . . . [with regard to] any emergency medical services provided in a pre-hospital setting by ambulance attendants and/or paramedics . . . .”

In the case under review, Dr. Venkataramana (a non-certified provider) performed an emergency spinal surgery, on a Sunday, and within roughly 48 hours of meeting the claimant; it was not until after surgery did the claimant advise that she had experienced the injury in a workplace setting.  Accordingly, the surgery was not pre-authorized by the workers compensation carrier.

At the Industrial Accident Board level, the Board found in favor of a work injury and awarded medical bills, among other benefits.  Counsel for the employer filed a Motion for Re-Argument to strike the medical award for surgery because Dr. Venkataramana is an in-state provider who is not workers comp certified and who did not obtain pre-authorization.  The Board granted the Motion for Re-Argument on the basis of Section 2322D.

On cross appeals to the Superior Court, the Court overturned the initial finding of compensability and, as such, did not reach the issue of Dr. Venkataramana’s surgery and the lack of prior authorization as a bar to payment.  The matter was then appealed to the DE Supreme Court.

The Supremes reversed the Superior Court’s ruling that the claim was not compensable and in reinstating benefit entitlement, was compelled to address whether or not Dr. Venkataramana could be paid under the “Emergency Exception” of Section 2322B(8)(b. Simply stated, he cannot.  The surgery in question was not performed in the emergency department of a hospital or in a pre-hospital setting.  Given that the statute will allow one non-authorized visit with a non-certified provider, the initial office visit was subject to payment but the subsequent surgery was not.

This may be the driest post in the history of the Detour & Frolic.  Perhaps my fertile imagination and sense of humor are drying up on me, but I am at a loss for how to convey the above with a spirit of wit and whimsy.  I like to think I am “all comp, all the time” and if nothing else, I have made sure y’all are privy to this historic ruling.

I promise we will have some fun with the next post.  It features Walt Schmittinger, skin lesions and systemic nickel poisoning and if that ain’t fun, I’m not sure what is . . :>)

Irreverently Yours,

Cassandra Roberts