In 2011, The Delaware Department of Labor had promulgated regulations that provided for only a 45-day appeal period from any Utilization Review decision, which could be appealed by either party to the Industrial Accident Board for a hearing de novo, but only before the expiration of 45 days from receipt of the Utilization Review decision. If an appeal from a Utilization Review decision was filed outside of the 45-day window, the defense would simply file a motion to dismiss the appeal. The Board would have been required to grant the motion based on the regulations.
This process has been turned upside-down since the Superior Court rendered its decision in January 2012 in Avila-Hernandez v. Timber Products, Palomino v. Christiana Care Health Services and Munoz v. Berger Brothers. The court held, in these consolidated cases, that the 45-day deadline to appeal Utilization Review decisions cannot stand. The court reasoned that the Department's regulation conflicted with the legislature's much longer five-year statute of limitations on open compensation cases.
