In a case of first impression, the board assesses a fine against an employer for not complying with the healthcare practice guidelines on a properly submitted medical bills claim.

The claimant sustained a compensable work injury to his back on August 27, 2007, and later had two surgeries performed to his low back. The employer paid for the first surgery but not the second one. The claimant filed a petition for medical expenses and at the Board hearing presented a motion for summary judgment. The claimant's position was that under 19 Del. C. Section 2322F of the Healthcare Practice Guidelines, the employer had to either pay the bills within 30 days of receipt or submit them to utilization review as this was an acknowledged injury. The claimant presented expert testimony from the treating surgeon that the second back surgery, in the nature of a revision and stabilization of the spinal fusion, was necessary and reasonable. The employer defended on the basis that the surgeon had indicated in a note that he would not operate unless the claimant quit smoking and he had not done so. The Board found in favor of the claimant. In rejecting the employer's argument, the Board noted the surgery had in fact been performed and the employer cited no authority that the physician was estopped by his note from doing the surgery if claimant did not quit smoking. The employer was ordered to pay the bills for the surgery plus interest at 1% per month. In addition, since the statute provides for an assessment of not less than $1,000 and not more than $5,000 for violations of its provisions, the employer was assessed a fine in the amount of $1,000 payable to the Workers' Compensation Fund.

Case Law Alert - 2nd Qtr 2010