Medical bills for surgery are not compensable when medical provider is not a certified provider in Delaware and did not obtain pre-authorization from employer.

The claimant had sustained a compensable work injury to his neck in February 2001 and had spinal surgery that year and received disability benefits. Many years later, on August 11, 2010, the claimant had a second spinal surgery by a surgeon in Maryland, who was not certified under the Workers’ Compensation Act. The claimant filed a petition to determine additional compensation, seeking retroactive pre-authorization for this cervical spine surgery a few weeks prior to the filing of the petition. At the hearing, the employer argued that the surgeon was neither certified nor had he obtained pre-authorization to perform the surgery. The claimant argued that a treating physician need not be certified or pre-authorized to perform medical treatment so long as it was necessary, reasonable and related to the accepted work injury. The Board dismissed the claimant’s petition for payment of the surgical medical expenses on the basis that the statute required that, if the claimant resides in Delaware and/or uses a Delaware provider, the provider must either be certified or receive pre-authorization to be reimbursed under the Act.

Following the claimant’s appeal and a remand, the Board, in a subsequent decision, accepted the opinions of several medical experts and concluded that the surgery at issue, as well as the subsequent pain management treatment, was necessary, reasonable and related to the claimant’s work injury and, therefore, was compensable. The employer appealed from that decision, contending that the Board had erred. The court relied on the recent Delaware Supreme Court case in Wyatt v. Rescare Home Care, 81 A.3d 1253 (Del. 2013), which held that medical treatment given by an uncertified provider who has not obtained pre-authorization is not compensable unless certain narrow exceptions are met. As applied to this case, the court found that the evidence was clear that the Maryland surgeon was not a certified provider under the Act nor did he obtain pre-authorization for the spinal surgery. Therefore, the court held that, relying on Wyatt, the claimant could not recover the medical expenses at issue for the 2010 surgery since neither of those requirements was met.

Case Law Alerts, 3rd Quarter, July 2014