Superior Court holds that § 2322(b) was not superseded by adoption of § 2322B. Therefore, when employer refuses to furnish medical treatment, claimants are entitled to recover “reasonable cost” of medical treatment instead of Delaware Fee Schedule amount.
The claimant was injured in a compensable work accident on August 31, 2015, but the employer denied medical treatment for a rectal injury and left knee injury on the basis that they were not causally related. As a result, the claimant used his wife’s private health insurance to pay for those medical expenses. On February 7, 2020, the Industrial Accident Board found the rectal injury and left knee injury to be compensable and ordered the employer to pay medical expenses according to the Delaware Fee Schedule set forth in 19 Del. C. § 2322B.
Following a denied motion for reargument, the claimant appealed to the Superior Court and contended he was entitled to more than the Fee Schedule. Specifically, he argued he was entitled to the total amount of medical expenses billed to his private health insurance pursuant to the collateral source rule and 19 Del. C. § 2322(b), which provides that an employee “shall receive . . . the reasonable cost [of medical treatment ] within the above limitations” when an employer refuses to furnish said treatment. That amount alleged was $226,408.93.
The court remanded the Board’s order. On remand, the Board determined that, following the enactment of the Fee Schedule provisions, including Section 2322B, the collateral source rule and 2322(b) are no longer viable theories of recovery under workers’ compensation law. The claimant appealed again.
On appeal a second time, the Superior Court determined that the plain language of the statute did not address or control the issues, so the language must be interpreted to ensure that the overriding, benevolent purpose of the Workers’ Compensation Act was achieved. Accordingly, the court determined that Section 2322(b) was not rendered non-viable by the adoption of Section 2322B. The General Assembly would have written the existing provision out of the Act if the intent was to supersede it. Here, the employer had refused to pay for the treatment expenses at issue; therefore, Section 2322(b) determined the appropriate recovery amount instead of the Fee Schedule amount. Accordingly, the claimant was entitled to recover the “reasonable cost” of the treatment pursuant to 2322(b).
Rather than remand the “reasonable cost” question to the Industrial Accident Board, the Superior Court determined the “reasonable cost” was the outstanding balance with the providers of $16,818.86, following payment/adjustments from health insurance.
What’s Hot in Workers’ Comp, Vol. 26, No. 9, September 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.