Brave New World! Delaware Industrial Accident Board Issues First Decision on an Appeal From Utilization Review

By Cassandra Roberts, Partner, Young Conaway Stargatt & Taylor LLP

The moment practitioners have been waiting for has arrived.  After months of wondering what an IAB adjudication would look like as it relates to an appeal of the new Utilization Review mechanism for challenging the propriety of medical charges for conformity with the newly-enacted Practice Guidelines, last week the IAB issued Cheryle Hairston v. Christiana Care Health Services, IAB Hearing # 1285568 (9/21/09) which upheld a denial of charges of Dr. Peter Bandera for treatment directed to the cervical spine and also a program of "work conditioning" that failed to return a disabled claimant to any level of gainful employment.

The cervical spine treatment that the Board found objectionable included 27 "gentle modalities" rendered while the claimant was awaiting a second cervical spine surgery.  Initiating therapy when "there was no hope of improved mobility from the four-level fusion and concern for a non-union at one level" as reflected in the records of the treating surgeon was clearly contraindicated, according to the testimony of the defense medical expert, himself an orthopedic surgeon.  Dr. Bandera was aware of the likelihood of a second surgery when this therapy was implemented and failed to coordinate his treatment protocol accordingly.

The 18 sessions of work conditioning that were disallowed by the Board should have been prescribed to move a claimant to a higher level of work activity, not from disability to an initial work status,  according to the defense medical expert, Dr. Ali Kalamchi.  In this case, the claimant was on a totally disabled status and at the time that the treatment was rendered, had no plan to return to work.  At the time of the IAB hearing, nine months after the program of work conditioning offered by Dr. Bandera, the claimant was still claiming to be disabled.

Sitting for the Board were members Terrence Shannon and Marilyn Doto, with Lydia Anderson, Esquire as the Hearing Officer.  Gary Nitsche, Esquire represented the claimant and Christiana Care was represented by Anthony Frabizzio, Esquire.  Consistent with the decision in C. Maude Donovan v. Kent Construction, IAB Hearing # 126616 (7/20/09) (ORDER), reported on earlier, no reference to the UR ruling was made nor did the UR findings come into evidence.

While the first IAB ruling on a UR appeal upheld the prior decision below, it was clearly not a "rubber stamp".  The Board decision is brief but the reasoning for rejecting the charges is spelled out in concise terms that make sense medically.  There is very little discussion of the Practice Guidelines.  Stay tuned for further updates!

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