Delaware IAB Assesses First Section 2322F(g) Fine Against a Doctor for Failure to Complete Forms

By Cassandra Roberts, Young Conaway Stargatt & Taylor, LLP

In Thurmon Shelton v. Allen Family Foods, IAB # 1335120 (2/12/10), the first fine has been assessed under 19 Del. Code Section 2322F(g) for violation of the physician's obligation to complete forms outlining a patient's work capability status under 19 Del. Code Section 2322E(b). The imposition of a $1000.00 fine against Dr. Scott Schulze, a surgeon specializing in hand burn, microvascular, and general/dermatologic surgeries, was tangential to the Board's ruling on a Petition to Determine Compensation due seeking a finding of compensability for right carpal tunnel syndrome and a related period of total disability. Problematic to the Board's deliberations on the issue of disability was the fact that Dr. Schulze had not completed any written forms establishing a period of disability or outlining the claimant's work limitations, notwithstanding that the doctor was certified under the Workers Compensation System and presumably conversant with the statutory requirements. While Dr. Schulze testified that "generically" he would disable a patient for up to six weeks following a CTS procedure, he made no such specific finding with regard to the claimant. The defense medical expert, Dr. Andrew Gelman, opposed the claim of disability with the proposition that if accommodations were made to the right upper extremity, no period of total disability would be warranted.

Not satisfied with the failure of evidence to support a TTD claim and lack of an award in that regard, the employer aggressively raised the issue of Dr. Schulze's failure to comply with 19 Del. Code Section 2322E(b) in mandating the completion of forms and the issue of statutory penalties. The employer tendered a list of physicians certified pursuant to 19 Del. Code Section 2322D which reflected that Dr. Schulze was certified as of January 27, 2009. The Board in its decision cited the testimony of Dr. Schulze admitting that he did not provide any documentation as to the claimant's limitations or capabilities either before or after the CTS surgery. Thus, there was no dispute that the requirements of Section 2322E(b) were violated and subject to the mandatory fine provision of Section 2322F(g). Allowing for a lack of any prior history of non-compliance or intent to undermine the statute in question, the Board imposed the minimum fine of $1000.00.

Food for thought: Does this situation raise any due process issues? The doctor's conduct was admitted, but he was not a party to this litigation. What about those circumstances where there are multiple doctors from multiple disciplines involved in the claimant's care? Is there an argument that absent a specific request from an employer or carrier, a doctor has as a potential defense that he is not sure whether he should be deferring to another provider on the issue of work capability status?

The Delaware Detour & Frolic invites comments from all interested parties.