Opinion
C.A. No. K10A-06-013 WLW.
Submitted: May 24, 2011.
Decided: August 23, 2011.
Upon an Appeal from the Decision of the Industrial Accident Board.
Affirmed.
William D. Rimmer, Esquire of Heckler Fabrizzio, P.A., Wilmington, Delaware for Appellant.
Walt F. Schmittinger, Esquire of Schmittinger Rodriguez, Dover, Delaware for Appellee.
ORDER
This case arrives on appeal from a decision of the Industrial Accident Board ("Board"). The Board granted a petition for worker's compensation benefits. Sussex Pines Country Club ("Appellant"), contends that the petition should not have been considered because the relief sought had been denied in a utilization review that became final pursuant to administrative regulations when it was not appealed within forty-five days.
FACTS
Shirley Conaway ("Conaway" or "Appellee") was injured in a workplace accident at The Sussex Pines Country Club in 1995. She has received benefits pursuant to the State's workers compensation law since that time. The present controversy arose after Conaway's doctors recommended medications and diagnostic examinations in response to her subjective experience of increased pain.
A brief summary of Conaway's treatment will be given to provide context for the order. Conaway underwent surgery on her lower back in 2001. The operation was performed by Dr. Biash Bose. Following the operation, Dr. Bose referred Conaway to Dr. Gabriel Somori, a pain management specialist. Dr. Somori has treated Conaway with several medications, including: Oxycontin, Oxycodone, Doxepin, Xanax, and Soma.
In 2009, Conaway returned to Dr. Bose, complaining of heightened pain in her lower back and legs. Dr. Bose performed an MRI, which he interpreted to indicate that Conaway may be suffering from a bone fragment. However, he explained that it was impossible to be certain because the metal cage in Conaway's back caused some interference with the MRI. Therefore, he opined that Conaway should undergo additional diagnostic testing in order to confirm the presence of a bone fragment that had been caused by the 1995 accident. He told Conaway that two treatment options exist for a bone fragment: surgery or spinal cord stimulation. However, he would not proceed with treatment until conducting further diagnostic tests.
Appellant's unemployment insurer is Selective Insurance ("Selective"). The Delaware Department of Labor has promulgated rules permitting an insurer to submit a proposed treatment plan to an independent medical professional for utilization review ("UR"). The purpose of UR is to provide prompt and efficient resolution of treatment and compliance issues for claims that have already been determined to be compensable under the State's worker's compensation law. UR determinations become final unless appealed to the Industrial Accident Board within 45 days.
19 Del. Admin. Code 1341-5.1.
Selective requested a UR of Conaway's "recurring treatment" with Dr. Somori (for pain management). It also sought review of recurring visits with Dr. Bose and his plan to conduct an MRI, EMG, bone scan, and SPECT imaging of the lumbar spine. The UR certified two visits with Dr. Somori, and specified that follow-up should be done on the efficacy of the pain management therapy. The UR declined to certify Dr. Bose's proposed diagnostic tests. However, as the Board emphasized in its opinion below, Selective Insurance failed to update its request for UR by providing the UR professional with the results of the MRI that Dr. Bose performed on Conaway.
In reliance on the results of the UR, Selective Insurance denied claims for office visits with Dr. Somori — beyond the two authorized visits. It also declined claims for diagnostic testing by Dr. Bose. Conaway did not appeal the UR determinations within 45 days. However, she subsequently filed a petition with the Board, seeking approval for further pain management treatment with Dr. Somori and diagnostic testing with Dr. Bose.
Procedural History
The Board granted Conaway's petition. It found that continued pain management treatment and diagnostic tests were reasonably necessary and related to the 1995 workplace accident. The Board also found that the claims were beyond the scope of the UR, and thus not precluded by that determination. Appellant timely filed this appeal with Superior Court.
Standard of Review
Superior Court exercises limited appellate jurisdiction. Appellate jurisdiction exists only if it has been specifically granted by law. The Court has appellate jurisdiction over decisions of the Industrial Accident Board under Title 19, Section 2350 of the Delaware Code. In the absence of actual fraud, agency decisions will be upheld if they are supported by substantial evidence on the record. The Court defers to an administrative agency's findings of fact and its interpretation of its own regulations. Questions of law are reviewed de novo.
Rodriquez v. Palmer, 2001 WL 1628317 at *2 (Del. Super. Sept. 26, 2001).
Id.
29 Del. C. 1042(d).
Munir v. Del. Examining Board of Physical Therapy, 1999 WL 517412 at *3 (Del. Super 1999).
State v. Worsham, 638 A.2d 1104, 1106 (Del. 1994).
DISCUSSION
The Board found that the UR decision, which certified two appointments with Dr. Somori, should not be interpreted to authorize "only" two appointments. The language of the UR does not contain the limiting term "only," and the interpolation of that term completely changes the meaning of the UR. Therefore, it appears that there is substantial evidence supporting the Board's determination that the UR does not preclude additional appointments with Dr. Somori.The Board also found that the UR decision, which declined to certify diagnostic tests, does not preclude a claim for the same tests when new medical evidence is discovered supporting the claim. That determination was based on the factual finding that Appellant failed to forward the results of the MRI test to the reviewing nurse. In light of the non-casuistry related finding, the Board's decision is reasonable because the MRI results provide a persuasive rationale for further diagnostic testing. The MRI was not considered by the reviewing nurse. Therefore, a claim for diagnostic testing based on the results of the MRI is beyond the scope of the UR.
CONCLUSION
For the foregoing reasons, the decision of the Industrial Accident Board is AFFIRMED.
IT IS SO ORDERED.