IAB Rules That "De Novo" Means Prior Utilization Review Decision Will Be Kept Out In Medical Bill Appeals Under New Statute

The IAB's recent ruling in C. Maude Donovan v. Kent Construction Co., IAB Hearing # 1266167 (7/20/09) (ORDER) resolves an issue that has been looming large in the minds of the Delaware workers compensation community since the enactment of 19 Del. Code Section 2322F(j) which provides for Utilization Review ("UR") as a means of challenging any medical treatment that is suspected to be in violation of the Practice Guidelines that were enacted under the same statute at subsection 2322C. The Utilization Review statute allows for a right of appeal de novo to the Industrial Accident Board "if a party disagrees with the findings." What role, if any, the prior UR evaluation would play in a hearing de novo was the subject of much speculation. The Donovan case represents one of the earliest appeals de novo from an adverse UR decision. The claimant filed a motion in limine preliminary to the IAB merits hearing to exclude any testimony or evidence regarding the UR decision, arguing that the statutory mandate for de novo review should require a "fresh perspective" on the case free from any influence of the prior UR findings. Further alleging that UR under the Delaware system was a one-sided process finessed by the employer, the claimant contended that any weight assigned to the UR report would be "prejudicial" to the claimant.

Employer Kent Construction countered that there is a distinction between de novo review and trial de novo and as such, the Utilization Review report should be admissible in the appeal hearing. Furthermore, the mechanism of UR under the new statute is such that UR is arranged through the Department of Labor and conducted by independent vendors who are assigned on a random rotating basis which does not involve the input of any medical witness or agent of the employer. Kent Construction also argued that Board Rule 11 states that all probative evidence should be entertained by the Board in its deliberations and the UR evaluation would be such probative evidence. The claimant countered that to admit the UR report without deposing a corresponding witness would be tantamount to putting in case-dispositive evidence in violation of the claimant's due process rights.

The Board has ruled that the statute allowing for de novo review compels a review of the Board free from any reference to the prior Utilization Review decision. Motion in limine granted and it does not appear that the hearing on the merits of the medical bill issue has yet been convened. Keep you posted!!