--- A.3d ----, 2013 WL 1460342
Del. Supr., 2013
By Geoffrey S. Lockyer, Esq.
How long does a party have to file a Petition with the Industrial Accident Board requesting review of a Utilization Review Determination?
The Supreme Court held that a party has five years from the date of the last payment of benefits for which a proper receipt has been filed with the Board.
A Utilization Review request was filed regarding treatment being provided to claimant. The Utilization Review Determination found the treatment at issue was outside of the Health Care Practice Guidelines, and non-certified the treatment. Claimant filed a petition to review the Utilization Review Determination, after the 45 day deadline set forth in Department of Labor Regulation 5.5.1. The Industrial Accident Board dismissed the claimant's petition as untimely. Claimant appealed to the Superior Court, which reversed, and found that Department of Labor Regulation 5.5.1 was invalid because it conflicted with the provisions of Section 2361 of the Delaware Workers' Compensation Act which provides that in a compensable case, claimant has five years from the last date benefits were paid to file a petition regarding his claim. Employer appealed, and the Supreme Court affirmed the holding of the Superior Court. The effect is that parties now have five years from the date of last payment to appeal a Utilization Review Determination.
The Court determined that the Department of Labor and Industry Regulation concerning the time for appeal from a UR Determination conflicted with the Act, and was therefore invalid. There is no question that when the Act and a Regulation conflict, the Act will prevail. However, in the present case, the real question was whether the two provisions actually conflict. As the employer argued, and Chief Justice Steele and Justice Berger noted in their dissenting opinion, Section 2361 of the Act applies to a Statute of Limitations that would bar all claims for compensation. Contrarily, the Department Regulation bars only a review of a decision about a claim. The Dissent likened the 45 day appeal period to the Section of the Act mandating that all appeals to the Superior Court be made within 30 days, which no one would argue conflicted with Section 2361, because it does not bar all claims for compensation, just the review of a decision about a claim. The dissent also noted the absurd practical effect of the majority's decision.
When appeals are filed with the IAB, the litigation should be dealt with aggressively, as a favorable decision from the IAB is the best possibility for closure on the UR issue.
It will also be important to ensure that final receipts are filed with the Department so that there is a concrete deadline on claimant's ability to appeal a UR.