Wilson v. Gingerich Concrete & Masonry

IN THE SUPREME COURT OF THE STATE OF DELAWARE
JOSEPH WILSON, §
§ No. 114, 2022
Appellant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ C.A. No. K21A-06-002
GINGERICH CONCRETE & §
MASONRY, §
§
Appellee Below, §
Appellee. §
Submitted: September 21, 2022
Decided: October 3, 2022
Before VALIHURA, VAUGHN, and TRAYNOR, Justices.
On appeal from the Superior Court. AFFIRMED.
Walt F. Schmittinger, Esquire, Gary E. Junge, Esquire, Schmittinger & Rodriguez, P.A.,
Dover, Delaware for Appellant.
H. Garrett Baker, Esquire, Elzufon, Austin & Mondell, P.A., Wilmington, Delaware for
Appellee.
VALIHURA, Justice:
I. BRIEF OVERVIEW
This is an appeal of a March 9, 2022 decision by the Superior Court affirming the
May 6, 2021 order (the “Order”) of the Industrial Accident Board (the “IAB” or “Board”)
denying Appellant Joseph Wilson’s (“Wilson”) petition seeking payment for a cervical
spine surgery. The parties agree that the treatment Wilson received was reasonable and
necessary. The issue we confront is whether the treatment is compensable given that the
treating physician’s certification under the Delaware Workers’ Compensation Act (the
“Act”) had lapsed by the time of treatment. If the treatment is not compensable, as the IAB
and Superior Court held, then Wilson asks us to anticipatorily resolve the question of
whether he can be liable for the bill even though no one has asserted such a claim.
Wilson was injured in a work-related accident on August 1, 2002 while working for
Appellee Gingerich Concrete and Masonry (“Employer”). Sometime after the accident,
Wilson started treatment with Dr. Bikash Bose (“Dr. Bose”), a certified Delaware workers’
compensation healthcare provider. Wilson’s injury necessitated two related cervical
surgeries. The first surgery was performed while Dr. Bose was certified under the
Delaware workers’ compensation system (the “Delaware Certification”) according to the
requirements set forth in the Act. Employer’s carrier paid the bills related to Wilson’s first
surgery.
But Wilson’s first surgery proved unsuccessful, and Dr. Bose recommended a
second surgery. During the time between Wilson’s first surgery and his second surgery,
Dr. Bose’s Delaware Certification lapsed, and he did not seek re-certification for nineteen
months.
2
Wilson petitioned the IAB, seeking payment for his second surgery. The IAB
scheduled a hearing.1 In order to obtain expert testimony for the hearing, Wilson deposed
Dr. Bose. At Dr. Bose’s deposition, Wilson first learned that Dr. Bose’s Delaware
Certification had lapsed prior to Wilson’s second surgery due to an administrative error,
but that Dr. Bose corrected the issue shortly after Wilson’s second surgery.
Employer filed a motion in limine asserting that the lapse in Dr. Bose’s Delaware
Certification negated Wilson’s right to recover his surgical bills through the workers’
compensation health care payment system. The parties stipulated that Wilson’s surgery
was reasonable, necessary, and related to Wilson’s workplace injury.
Relying on 19 Del. C. § 2322D, as well as this Court’s opinion in Wyatt v. Rescare
Home Care,2 the hearing officer held that Wilson’s treatment was noncompensable solely
because Dr. Bose lacked certification at the time of Wilson’s second surgery. The hearing
officer considered Dr. Bose to be an “uncertified provider” who was required by statute to
obtain pre-authorization for treatment.
Wilson appealed the IAB’s decision to the Superior Court, arguing that the IAB
erred when it equated a lapse in Delaware Certification with a lack of Delaware
Certification. In affirming the IAB’s Order, the Superior Court recognized that the IAB
failed to explain its decision, which conflicted with two prior IAB decisions, namely,
1
In the meantime, Dr. Bose performed the second surgery.
2
81 A.3d 1253, 1263 (Del. 2013) [hereinafter Wyatt, 81 A.3d at _].
3
Williams v. State,3 and Zayes v. State.4 Nevertheless, the Superior Court found that this
Court’s precedent in Wyatt controlled, and that the IAB’s decision was correct as a matter
of law. Accordingly, the Superior Court upheld the Board’s denial of Wilson’s petition.
Wilson raises two issues on appeal. First, he asserts that the Act should be construed
liberally and requires a good-faith exception to the certification requirements when there
is a lapse in certification due to an administrative oversight.
Second, Wilson asserts that upholding the Board’s decision creates an injustice
where Wilson might be responsible, through no fault of his own, for medical bills
associated with reasonable and necessary treatment. Although no such action has been
initiated or threatened, he argues that the Act’s plain language expressly permits Dr. Bose
to commence collection efforts against him after there is a final decision holding that his
medical bills are noncompensable.
We conclude that Dr. Bose’s lapse rendered him uncertified, and, thus, the disputed
bills are not compensable under 19 Del. C. § 2322D. We do not reach Wilson’s second
issue as it is not ripe.5
3
No. 1282260 (Del. I.A.B. Feb. 6, 2012) [hereinafter Williams, No. 1282260, at _].
4
No. 1365817 & 1411306 (Del. I.A.B. Sept. 10, 2015) [hereinafter Zayes, No. 1365817, at _]. We
note that the IAB caption incorrectly spells the claimant’s name--Ms. Zayas--as “Zayes,” even
though it spells her name correctly in the decision. See Zayes, No. 1365817, at 2; see also Zayas
v. State, 272 A.3d 776, 778 (Del. 2022) (identifying claimant as “Christina Zayas”).
Because the parties in their briefing refer to this IAB decision as “Zayes,” we do the same here for
ease of reference. We intend no disrespect to Ms. Zayas.
5
There may be various statutory, contractual, or other impediments to holding Wilson responsible
for the costs due to a lapse that was not his fault. Employer acknowledged the inequities in such
an outcome. See Ans. Br. at 16; id. (stating that “it would be a very heady thing for any physician
4
For the reasons set forth below, we AFFIRM the decision of the Superior Court.
II. FACTUAL AND PROCEDURAL HISTORY
A. Wilson’s Injury and Dr. Bose’s Treatment
Wilson was injured in a work-related accident while working for Employer on
August 1, 2002.6 Wilson sustained work-related injuries to his neck and lower back.
In 2014, Wilson began treating with Dr. Bose, a board-certified neurosurgeon,7 for
complaints relating to his 2002 work-related injury. Treatment rendered by Dr. Bose at
this time was covered by Employer’s carrier. Wilson also received pain management
treatment from several other physicians in connection with his work-related injury, but
Wilson returned to Dr. Bose in 2019 for a reevaluation.
On February 22, 2019, Dr. Bose performed Wilson’s physical examination, during
which Wilson expressed complaints of a “burning sensation in his neck which radiated
down both sides of his neck and into his shoulders and into his arms.” 8 “He also
complained of a feeling of weakness in [his] right arm[.]”9 Dr. Bose found that the pain
Wilson was experiencing was due to a pinched nerve in his neck, likely caused by a buildup
of calcium around the nerve. Dr. Bose ordered Wilson to undergo imaging studies.
to assert that the patient becomes personally responsible for medical care which is not compensable
by consequence of the physician’s own legal failings.”). See infra n.70.
6
B-39 Wilson v. Gingerich Concrete & Masonry, No. 1215102, at 2 (Del. I.A.B. May 6, 2021)
[hereinafter IAB Decision]; A-003 Wilson v. Gingerich Concrete & Masonry, No. 1215102, at
3:12 (Del. I.A.B. Apr. 23, 2021) (TRANSCRIPT) [hereinafter IAB Tr.].
7
B-4 (Dr. Bose Dep. at 4:19-6:3). Dr. Bose has been practicing for 35 years. Id. The parties do
not dispute Dr. Bose’s qualifications. See B-5 (Dr. Bose Dep. at 5:10-13).
8
B-6-8 (Dr. Bose Dep. at 6:24-7:3, 8:14).
9
B-7 (Dr. Bose Dep. at 7:3-4).
5
On May 29, 2019, after reviewing Wilson’s results, Dr. Bose discovered that Wilson
had “multilevel disc disease” in his neck and lower back. Dr. Bose recommended different
options for treatment, including a surgical option consisting of a “C3-4 and C5-6
discectomy.”10 After another visit to further discuss his options, Wilson decided to have
the surgery.
Wilson’s cervical surgery took place on July 2, 2019 (the “First Cervical Surgery”).
According to Dr. Bose, Wilson’s First Cervical Surgery “went as planned[,]”11 and
Employer’s carrier paid Wilson’s medical bills associated with the surgery.
Around January 2020, about six months after the First Cervical Surgery, Dr. Bose
reviewed Wilson’s updated cervical spine X-rays. The X-rays revealed that Wilson’s
fusion had not yet solidified. According to Dr. Bose, an average person should “fuse” by
six months post-surgery, but a small percentage of people are “slow healers” and may take
up to a year.12 Dr. Bose continued to monitor Wilson’s recovery.
On July 17, 2020, Wilson again went to Dr. Bose with updated imaging studies. Dr.
Bose found postoperative changes, meaning that Wilson still had not fused even though
almost a year passed since the First Cervical Surgery. This essentially rendered Wilson’s
First Cervical Surgery unsuccessful. Dr. Bose proposed additional treatment, including
both surgical and nonsurgical options.
On August 7, 2020, Wilson returned to Dr. Bose to further discuss the surgical
10
B-10-11 (Dr. Bose Dep. at 10:16-18, 11:5-19).
11
B-11-12 (Dr. Bose Dep. at 11:20-12:3).
12
B-13 (Dr. Bose Dep. at 13:19-23).
6
option. Wilson inquired into the specific procedure and the associated risks. Before
committing to another surgery, Wilson wanted to obtain a second opinion.
On October 20, 2020, Wilson sought a second opinion from Dr. Eppley.13 Dr.
Eppley agreed with Dr. Bose’s assessment and concluded that there was a “clear nonunion
at C3-4 and C5-6 with slight loosening of the instrumentation.”14
Wilson returned to Dr. Bose in order to have the new surgery (the “Second Cervical
Surgery”), which occurred on February 22, 2021. Similar to the first surgery, Dr. Bose
stated that the Second Cervical Surgery “went as planned.”15
B. Wilson’s Petition for Compensation and the IAB Decision
On October 1, 2020, Wilson filed a Petition to Determine Additional Compensation
Due seeking compensability of medical treatment with Dr. Bose, which would include a
prospective second cervical surgery (the “Second Cervical Surgery”). A hearing on the
matter was held on April 23, 2021.
On April 7, 2021,16 in preparation for the IAB hearing, Wilson took Dr. Bose’s
deposition. Dr. Bose testified that both the First Cervical Surgery and the Second Cervical
Surgery were “reasonable, necessary, and related to [Wilson’s work-related] injury.”17
13
B-19 (Dr. Bose Dep. at 19:9-13). Dr. Bose’s deposition does not identify Dr. Eppley’s full
name.
14
B-19-20 (Dr. Bose Dep. at 19:17-20:2).
15
B-23 (Dr. Bose Dep. at 23:15-19).
16
The transcript of Dr. Bose’s deposition is incorrectly dated April 7, 2020. See B-1 (Dr. Bose
Dep.). Dr. Bose’s deposition, however, occurred on April 7, 2021. See B-40 (IAB Decision at
3).
17
B-25-26 (Dr. Bose Dep. at 25:20-26:2).
7
On cross-examination, Employer asked whether Dr. Bose was recertified under the
Delaware Workers’ Compensation Practice Guidelines. Dr. Bose testified that he was.
Employer stated that the Delaware Workers’ Compensation website crossed out Dr. Bose’s
name on its certification list.18 Dr. Bose explained that “it was,” but that he had “taken
care of the paperwork.”19 According to Dr. Bose, “[i]t was like the CME was not filed so
we sent them the paperwork last week so they were going to take it off. We noticed that.”20
Dr. Bose further testified that
I have been certified all along, but with COVID there was some problem with
communication from their office email and all that and, you know, it fell
through the cracks so there was some -- we noticed that other providers have
the same issues and so when it came to our attention, then we filled out the
paperwork and submitted it to them. And my office talked to them last week
or the week before so they said that shouldn’t be a problem.21
Employer questioned exactly when Dr. Bose was recertified, to which he responded that
the paperwork was sent in around the end of March 2021. No further questions were asked
regarding why Dr. Bose lacked Delaware Certification from August 31, 2019 until March
29, 2021. However, neither Wilson, nor Wilson’s counsel, knew of Dr. Bose’s lapse in
Delaware Certification until Dr. Bose’s April 7, 2021 deposition.
The hearing occurred on April 23, 2021 before an IAB hearing officer. During the
hearing, Employer stated that it did not challenge the treatment based on substantive
B-28 (Dr. Bose Dep. at 28:4-5). Counsel for Employer stated: “I have pulled up a copy of their
18
website and your name is crossed out.” Id.19
B-28 (Dr. Bose Dep. at 28:6-7).
20
B-28 (Dr. Bose Dep. at 28:7-9).
21
B-28-29 (Dr. Bose Dep. at 28:20-29:4).
8
reasons, but rather on “failure to comply reasons”--namely, that Dr. Bose was not certified
during Wilson’s Second Cervical Surgery because he failed to complete his Delaware
Certification.22 Thus, the only question before the hearing officer was whether Dr. Bose
was qualified for compensation under the Act with regard to Wilson’s Second Cervical
Surgery.
Employer argued that, in order for treatment to be compensable under the Act, the
treatment had to be provided either by a Delaware certified provider, or the provider had
to seek preauthorization. Relying on this Court’s opinion in Wyatt, Employer pointed to
only one exception to this rule: first consultations.23 Dr. Bose was initially certified in
2008 and recertified four times. Dr. Bose, however, was not certified from August 31,
2019 to March 29, 2021, a period of about 19-months. According to Employer, because
Dr. Bose was not certified at the time of the Second Cervical Surgery, did not seek
preauthorization, and the Second Cervical Surgery did not fall within the exception, the
Second Cervical Surgery was not compensable under the statute.
Wilson agreed that the only issue was the effect that Dr. Bose’s certification status
had on compensability. Wilson further agreed that Dr. Bose was initially certified on April
30, 2008, recertified four times, and had a lapse in certification from August 31, 2019 to
March 29, 2021. Wilson, however, specifically characterized Dr. Bose’s 19-month gap in
22
A-004 (IAB Tr. at 4:1-2).
23
See A-005 (IAB Tr. at 5:14-18). During the hearing, Employer correctly identified that Wyatt
outlined two exceptions to the rule: first consultation and care provided in the emergency unit of
a hospital or a pre-hospital setting. Id. The emergency exception, however, no longer applies.
See 19 Del. C. § 2322D(b) (“The provisions of this subsection are limited to the occasion of the
employee’s first contact with any healthcare provider for treatment of the injury[.]”).
9
Delaware Certification as a “lapse”24 in certification as opposed to a lack of certification.
Wilson argued that the Act lists requirements for initial certification but does not provide
“penalties” for a failure to recertify at given intervals.25 Therefore, Wilson argued that Dr.
Bose “is, and has been, a certified provider and a participant in the worker[s’]
compensation system[,]”26 such that the Second Cervical Surgery is compensable.
On May 6, 2021, the hearing officer found that Wilson’s medical expenses were
“not compensable due to Dr. Bose’s lack of certification and/or failure to obtain pre-
authorization for those expenses.”27 The hearing officer agreed with Employer that Dr.
Bose’s lapse in certification meant that Dr. Bose was effectively uncertified during the 19-
month period. Relying on the Act and this Court’s precedent in Wyatt, the hearing officer
found that uncertified providers who fail to obtain pre-authorization for treatment are not
entitled to compensation. Although Dr. Bose testified that his lapse in Delaware
Certification starting in August of 2019 was “due to an administrative error and/or due to
the Covid pandemic,” the hearing officer noted that “the Covid pandemic did not begin
until 2020.”28 Nevertheless, because Dr. Bose did not seek preauthorization for the Second
Cervical Surgery, and because the Second Cervical Surgery did not fall within the
exception, the hearing officer concluded that it was not compensable.
24
A-011 (IAB Tr. at 11:9).
25
A-015 (IAB Tr. at 15:5-9).
26
A-008 (IAB Tr. at 8:23-24).
27
B-44 (IAB Decision at 7).
28
B-41 (IAB Decision at 4).
10
C. Wilson’s Appeal to the Superior Court
Wilson appealed the Order to the Superior Court. He argued that the Board erred
when it equated Dr. Bose’s lapse in certification to a lack of certification. According to
Wilson, neither Section 2322D nor the Workers’ Compensation Regulations permitted the
IAB to find that a medical provider’s certification expired every two years.29 Further,
Wilson argued that the Board failed to explain its deviation from two prior IAB decisions
that had described a lapse in Delaware Certification as de minimis. According to Wilson,
once Dr. Bose received his Delaware Certification, he remained certified, notwithstanding
the lapse. In addition, Wilson challenged the Board’s decision by arguing that the
Department of Labor (the “DOL”) failed to provide Dr. Bose with notice and a hearing, as
required by Delaware’s Administrative Procedures Act.
In response, Employer argued that the Board correctly applied Section 2322D.
Further, Employer argued that Wilson lacked standing to challenge notice requirements on
behalf of Dr. Bose.
The Superior Court affirmed the Board’s decision. As a threshold matter, the court
addressed Employer’s argument that Wilson lacked standing to challenge the DOL’s
alleged failure to provide Dr. Bose notice of his lapse in certification. The court declined
to decide this matter for various reasons, including Wilson’s failure to raise the issue before
the Board.
Turning to the sole substantive issue in Wilson’s appeal, the court addressed
29
Wilson v. Gingerich Concrete & Masonry, 2022 WL 701632, at *2 (Del. Super. Mar. 9, 2022)
[hereinafter Wilson, 2022 WL 701632, at _].
11
whether the Board correctly applied Section 2322D, as well as this Court’s decision in
Wyatt. Relying on its common, ordinary meaning, the court described a “lapse” as
something that occurs when “a right, privilege, or agreement becomes invalid because it is
not used, claimed or renewed.”30 “In other words, [a lapse occurs when] the right or
privilege expired.”31 Effectively, the court concluded that a lapse in certification meant
that Dr. Bose was uncertified during the 19-month period.
Because Dr. Bose was uncertified during that 19-month period, the Superior Court
turned to Wyatt and Section 2322D to determine whether an uncertified provider’s
treatment would be compensable. The court concluded that both Wyatt and Section 2322D
required a treating physician to be certified, obtain preauthorization, or fall into the
exclusive list of exceptions provided in Section 2322D. Because Section 2322D does not
permit an additional “good faith” exception, the court declined to judicially craft an
exception for an administrative error.
Finally, the Superior Court addressed Wilson’s contention that the Board’s failure
to follow its own precedent required reversal. The court considered whether a remand
would be appropriate to obtain an explanation from the Board as to why its approach
changed. But because the issue was one of statutory construction subject to de novo review,
the court determined that remanding would not be efficient given the court’s view that the
Board’s decision was correct as a matter of law.
30
Id. at *6 (emphasis in original).
31
Id.
12
III. CONTENTIONS ON APPEAL
This appeal followed. The question Wilson presents is whether a lapse in Delaware
Certification due to an administrative oversight equates to a lack of Delaware Certification
such that any treatment rendered during that 19-month period would be noncompensable
under the statute. Wilson contends that if a lapse in certification equates to a lack of
certification at the time of his Second Cervical Surgery, then he becomes responsible for
the medical bills associated with the procedure.
Employer disagrees and argues that Wilson misreads the statute. Further, Employer
states that there is nothing in the record suggesting Dr. Bose has either attempted or
contemplates holding Wilson personally liable for the medical expenses at issue.
Accordingly, Employer argues that the Superior Court correctly affirmed the Board’s
decision by applying Section 2322D, as well as our precedent in Wyatt.
IV. STANDARD OF REVIEW
“The review of an Industrial Accident Board’s decision is limited to an examination
of the record for errors of law and a determination of whether substantial evidence exists
to support the Board's findings of fact and conclusions of law.”32 “Substantial evidence is
‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’”33
32
Zayas v. State, 273 A.3d 776, 784-85 (Del. 2022) (citing Roos Foods v. Guardado, 152 A.3d
114, 118 (Del. 2016)); Sheppard v. Allen Family Foods, 279 A.3d 816, 826 (Del. 2022).
33
Id. at 785 (citing Roos Foods, 152 A.3d at 118).
13
If the Board decided legal issues, this Court reviews them de novo.34 “Absent errors
of law, which are reviewed de novo, we review a Board’s decision for abuse of
discretion.”35 If there is no error of law and substantial evidence supports the Board’s
findings, “the Board’s decision must be affirmed.”36
V. ANALYSIS
First, we consider the effect of a lapse in certification under Section 2322D of the
Workers’ Compensation Act.
A. Section 2322D Requires Providers to be Certified
“The ‘most important consideration for a court in interpretating a statute is the words
the General Assembly used in writing it.’”37 “Undefined words are given their ordinary,
common meaning, and words should not be construed as surplus if a reasonable
construction will give them meaning.”38 “When the statute is ‘clear on its face and is fairly
susceptible to only one reading, the unambiguous text will be construed accordingly,’
unless the result is an absurdity ‘that cannot be attributed to the legislature.’” 39 “In
34
Id. (citing Oceanport Indus., Inc. v. Wilm. Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994)).
35
Greenville Country Club v. Greenville Country Club, 150 A.3d 1194, 1197 (Del. 2016) (citing
Person-Gaines v. Pepco Hldgs., Inc., 981 A.2d 1159, 1161 (Del. 2009)).
36
Zayas, 273 A.3d at 785 (citing Stevens v. State, 802 A.2d 939, 944 (Del. Super. 2002)); Breeding
v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
37
Salzberg v. Sciabacucchi, 227 A.3d 102, 113 (Del. 2020) (quoting Boilermakers Loc. 154 Ret.
Fund v. Chevron Corp., 73 A.3d 934, 950 (Del. Ch. 2013)). See also Stream TV Networks, Inc. v.
SeeCubic, Inc., 279 A.3d 323, 354 (Del. 2022) (citing Salzberg, 227 A.3d at 113).
38
Wyatt, 81 A.3d at 1260 (citing Progressive N. Ins. Co. v. Mohr, 47 A.3d 492, 495 (Del. 2012)).
39
Id. at 1260-61 (quoting Mohr, 47 A.3d at 496).
14
interpreting the statute, this Court will read all sections of the statute, ‘in light of all the
others to produce a harmonious whole.’”40
Section 2322D(a) provides in full:
(a)(1) Certification shall be required for a health-care provider to provide
treatment to an employee, pursuant to this chapter, without the requirement
that the health-care provider first preauthorize each health-care procedure,
office visit or health-care service to be provided to the employee with the
employer or insurance carrier. Any health-care provider who is not licensed
by the State of Delaware to provide medical services may elect to become
certified under this section, and thereby obtain the same rights and
obligations under this chapter as a certified health-care provider who is
licensed by the State of Delaware to provide health-care services. The
provisions of this subsection shall apply to all treatments to employees
provided after the effective date of the rule provided by subsection(c) of this
section, regardless of the date of injury. A health-care provider shall be
certified only upon meeting the following minimum certification
requirements:
a. Have a current license to practice, as applicable;
b. Meet other general certification requirements for the specific
provider type;
c. Possess a current and valid Drug Enforcement Agency
(“DEA”) registration, unless not required by the provider’s
discipline and scope of practice;
d. Have no previous involuntary termination from participation in
Medicare, Medicaid or the Delaware workers’ compensation
system, which shall be determined to be inconsistent with
certification under regulations adopted pursuant to subsection
(c) of this section;41
e. Have no felony convictions in any jurisdiction, under a federal-
controlled substance act or for an act involving dishonesty,
fraud or misrepresentation, which shall be determined to be
40
Id. at 1261 (quoting Mohr, 47 A.3d at 496).
41
Subsection (c) provides that “[s]ubject to the foregoing provisions, complete rules and
regulations relating to provider certification shall be approved and proposed by the Workers’
Compensation Oversight Panel. Regulations arising from the Panel’s work shall be adopted by
regulation of the Department of Labor pursuant to Chapter 101 of Title 29.” 19 Del. C. § 2322D(c).
15
inconsistent with certification under regulations adopted
pursuant to subsection (c) of this section; and
f. Provide proof of adequate, current professional malpractice
and liability insurance.
(2) The certification rules shall require that any healthcare provider to be
certified agree to the following terms and conditions:
a. Compliance with Delaware workers’ compensation laws and
rules;
b. Maintenance of acceptable malpractice coverage;
c. Completion of State-approved continuing education courses in
workers’ compensation care every 2 years;
d. Practice in a best-practices environment, complying with
practice guidance and Utilization Review Accreditation
Council (“URAC”) utilization review determinations;
e. Agreement to bill only for services and items performed or
provided, and medically necessary, cost-effective and related
to the claim or allowed condition;
f. Agreement to inform an employee of that employee’s liability
for payment of noncovered services prior to delivery;
g. Acceptance of reimbursement and not unbundled charges into
separate procedure codes when a single procedure code is more
appropriate; and
h. Agreement not to balance bill any employee or employer.
Employees shall not be required to contribute a copayment or
meet any deductibles.42
Employer asserts that the first sentence of Section 2322D(a)(1) creates a
requirement that the Delaware Certification be current. Specifically, Employer points to
the terms “shall” and “be.” Employer argues that the term “shall” is mandatory and that
the term “be” is present tense, thereby necessitating a current certification.
Section 2322D(a)(1) outlines the minimum requirements necessary to obtain a
Delaware Certification, ranging from having a current license to practice to providing proof
42
19 Del. C. § 2322D(a).
16
of adequate, liability insurance.43 Specifically, the last sentence of Section 2322D(a)(1)
states that “[a] health-care provider shall be certified only upon meeting the following
minimum certification requirements.”44 But Dr. Bose’s Delaware Certification did not
lapse due to his failure to meet one of the six minimum requirements. There is no question
that at the time of Wilson’s Second Cervical Surgery, Dr. Bose met the minimum
requirements necessary to obtain a Delaware Certification.
Instead, this case focuses on the second portion of Section 2322D(a), which sets
forth the terms and conditions a healthcare provider must agree to in order to be certified.
Section 2322D(a)(2) provides that “[t]he certification rules shall require that any healthcare
provider to be certified agree to the following terms and conditions” which includes
completion of State-approved education courses every two years.45 The terms “shall” and
“be” suggest that these are requirements that a healthcare provider must agree to in order
to be certified. Yet the statute is silent as to the consequences of failing to adhere to the
terms and conditions listed in Section 2322D(a)(2).
Employer argues that the requirements are of an ongoing nature, and therefore, the
provider must fulfill these ongoing requirements in order to keep her certification active.
This interpretation is consistent with the statute’s plain language. Although the statute’s
language weighs most heavily in the analysis, three factors weigh in Wilson’s favor,
43
See 19 Del. C. § 2322D(a)(1)(a)-(f).
44
19 Del. C. § 2322D(a)(1) (emphasis added).
45
19 Del. C. § 2322D(a)(2) (emphasis added).
17
namely: (1) the Act’s remedial purpose; (2) the fact that Wyatt and VanVliet are
distinguishable; and (3) the prior two IAB decisions. We discuss each in turn.
1. The Remedial Purpose of the Act
Weighing against this plain language argument is the remedial purpose of the Act,
which might suggest that a temporary lapse should not result in a lack of coverage. “In
general, the construction given to a statute by the state agency charged with the statute’s
enforcement is accorded great judicial deference, so long as the construction is reasonable
and does not contradict the plain language of the statute.”46 This Court has “observed that
the Act is a remedial statute with a benevolent purpose.”47 This Court has also observed
that the Act is to be interpreted “liberally so as to effectuate its remedial purpose.”48 Thus,
we are obliged to interpret the Act in a manner that fulfills the legislative intent but avoids
an “unreasonable result.”49
“Delaware’s first Workers’ Compensation Statute was enacted in 1917.”50 One
purpose behind the statute was “‘to provide more direct and economical compensation for
injured employees and create a pool of employers that would bear the burden of
46
3C Shambie Singer, Sutherland Statutes and Statutory Construction § 75:3 (8th ed. 2021).
47
State v. Cephas, 637 A.2d 20, 25 (Del. 1994).
48
Konstantopoulos v. Westvaco Corp., 690 A.2d 936, 939 (Del. 1996) (citing Cephas, 637 A.2d
at 25 (“It is the settled law of this State that the Act should be liberally construed to effectuate its
purpose.” (citing Del. Tire Ctr. v. Fox, 411 A.2d 606, 607 (Del. 1980)))).
49
2A Sutherland Statutes & Statutory Construction, § 45:12 (7th ed. 2008) (“It is important that a
statute not be read in an atmosphere of sterility, but in the context of what actually happens when
human beings go about the fulfillment of its purposes.”).
50
Nat’l Union Fire Ins. Co. of Pittsburgh v. McDougall ex rel McDougall, 877 A.2d 969, 972
(Del. 2005). See also Rafferty v. Hartman Walsh Painting Co., 760 A.2d 157, 159 (Del. 2000); 29
Del. Laws ch. 233 (1917).
18
ameliorating the losses resulting from industrial accidents.’”51 Another was “to provide
prompt financial and medical assistance to injured employees and their families because
the lengthy and protracted nature of tort litigation arising out of injuries to an employee
often delayed such assistance for an extended period of time.”52 In most states, including
Delaware, worker’s compensation statutes “were adopted . . . in response to the failure of
the common law to provide a quick, practical, cost effective remedy for on the job injuries
suffered by workers.”53 It has become “the exclusive remedy for injured workers.”54 Given
the purpose for the workers’ compensation system, there is at least a colorable argument
that an inadvertent lapse in certification due to an administrative error would not render
otherwise reasonable and necessary treatment noncompensable.
2. Both Wyatt and VanVliet are Distinguishable
The Board, as well as the Superior Court, relied on this Court’s precedent in Wyatt.55
But Wyatt is distinguishable in certain respects. In Wyatt, this Court considered whether
an uncertified doctor’s surgery performed without preauthorization was compensable. The
doctor in Wyatt had never obtained a Delaware Certification. Further, the doctor’s office
made it known to the claimant that he did not handle workers’ compensation cases. In
order to receive treatment and fearful that she would be unable to find immediate treatment
51
Nat’l Union Fire Ins. Co. of Pittsburgh, 877 A.2d at 972 (quoting Rafferty, 760 A.2d at 159).
52
Id. (quoting Rafferty, 760 A.2d at 159).
53
Id. at 973 (quoting Rafferty, 760 A.2d at 159).
54
Del. Valley Field Servs. v. Ramirez, 105 A.3d 396, 403 (Del. Super. 2012), aff’d sub nom. Del.
Valley Field Servs. v. Melgar-Ramirez, 61 A.3d 617 (Del. 2013) (TABLE).
55
B-40-41 (IAB Decision at 3-4); Wilson, 2022 WL 701632, at *6-7.
19
elsewhere, the claimant told the doctor that her injury occurred when she woke up rather
than when she was at work.
This Court engaged in a detailed statutory analysis as to why a doctor must either
have a Delaware Certification, seek preauthorization, or fall into the narrow exception
under the Act in order to have his or her treatment deemed compensable. This Court held
that because the doctor was not certified (and had never been certified), the treatment was
noncompensable.56
In this case, the Superior Court also relied on this Court’s precedent in VanVliet v.
D&B Transportation.57 VanVliet is distinguishable for the same reason. In VanVliet, the
employee was involved in a work-related injury. The injury necessitated surgery. The
employee’s surgery was performed by a Maryland surgeon. The Maryland surgeon was
uncertified under the Act at the time she performed the surgery, even though either most
or all of the other members of her medical practice firm were Delaware certified. The
Maryland surgeon also did not seek preauthorization for the surgery.
The employee sought reimbursement under the Act from his employer for the
surgery performed by the Maryland surgeon. The Superior Court initially found that a lack
of Delaware Certification did not act as a total bar on an employee’s ability to receive
reimbursement from his employer for the cost of treatment. The court remanded the matter
to the IAB.
56
See Wyatt, 81 A.3d at 1263.
57
Wilson, 2022 WL 701632, at *7 n.64; see also VanVliet v. D&B Transp., 105 A.3d 390 (Del.
2014).
20
In the interim, this Court decided Wyatt, which held that a claimant could not obtain
reimbursement for care provided by a physician who was not Delaware certified unless the
physician obtained preauthorization. When the employer appealed the Board’s award of
reimbursement for surgery costs in the VanVliet matter, the Superior Court applied Wyatt
and reversed the Board’s decision. The employee then appealed to this Court.
The employee argued that Wyatt was wrongly decided because there was no way to
compel non-Delaware physicians to become Delaware certified. But we disagreed. This
Court found that VanVliet could not be distinguished from Wyatt, and, therefore, the
employee in VanVliet was not entitled to reimbursement because it was undisputed that the
surgery was performed by a non-certified Maryland surgeon, and none of the limited
statutory exceptions to the Delaware Certification requirement applied. Again, the key
distinction is that in VanVliet, the surgeon was never certified under the Act.58
3. The Board’s Precedent (Williams and Zayes) Also Supports Wilson
Wilson asserts that the Board’s decision was arbitrary and capricious because it
deviated from its own precedent without explanation. He argues that on two occasions,
under circumstances indistinguishable from those here, the Board found that a lapse in
58
We note that in footnote 5 of VanVliet, Chief Justice Strine stated:
One of us believes it is a close question whether Wyatt was correctly decided or
whether the Superior Court’s different earlier interpretation in this matter is correct,
in view of the complexity of the statutory provisions cand the liberal construction
that is generally given to the Act. But none of us believe[s] that we should deviate
from the principle of stare decisis given the General Assembly’s ability to amend
the Act if it disagrees with our interpretation in Wyatt.
105 A.3d at 391 n.5.
21
Delaware Certification due to an administrative error did not disqualify a provider’s bills
from payment. Therefore, Wilson contends that the Board abused its discretion when it
failed to explain its departure from these precedents.
Williams, decided in 2012, appears to be the first time the Board addressed a “lapse”
in a provider’s Delaware Certification. In Williams, the State filed a motion to dismiss a
claimant’s petition on the basis that the medical treatment was not performed by a certified
healthcare provider under the Act. The claimant sought treatment from Dr. Mann, who
was previously certified under the Act. Unbeknownst to the claimant, Dr. Mann’s
certification had “lapsed on the dates of two of the three prescription medication refills,
which represent the relief sought in the [claimant’s] petition.”59 The Board denied the
State’s motion to dismiss.
In making this determination, the Board reviewed the certification records provided
by the Health Care Payment System. From those records, the Board learned that Dr. Mann
was previously certified from May 13, 2008 through May 13, 2010. Claimant sought
prescription refills on June 21, 2011, and August 17, 2011. At the time of the prescription
refills, Dr. Mann’s certification had “lapsed” due to Dr. Mann’s “fail[ure] to complete a
continuing education filing to re-certify his status as a workers’ compensation healthcare
provider.”60
The Board characterized this “lapse” as a “simple administrative error on [Dr.
59
Williams, No. 1282260, at 2.
60
Id. at 2.
22
Mann’s] part, given his former and current compliance.”61 The Board stated that “[g]iven
the relative newness of the regulations, which became effective in May 2008, and for which
continuing education requirements would not have been necessary for Dr. Mann until at
least 2010, the Board fail[ed] to find significant grounds to dismiss [claimant’s] pending
petition.”62 Thus, the Board concluded that “[u]nder these unique circumstances, Dr.
Mann’s de minimus [sic] omission in completing the continuing education filing in 2010
fail[ed] to constitute a willful disregard for the Health Care Payment System regulations
and or/its purposes,” and therefore “[c]laimant’s pending petition should not be dismissed
based on merely a procedural technicality.”63
This case is similar to Williams. In his deposition, when asked why his name had
been crossed off the workers’ compensation website, Dr. Bose stated that “[w]ell, it was -
- we have taken care of the paperwork. It was like the CME was not filed so we sent them
the paperwork last week so they were going to take it off. We noticed that.”64
In 2015, the Board in Zayes was again faced with determining whether a lapse in
Delaware Certification disqualified a provider’s bills from payment. During closing
arguments before the Board, the employer’s counsel raised the issue of whether claimant’s
doctor, Dr. Damon Carey, was a certified provider at the time of treatment. The Board
found that, on initial questioning, Dr. Carey thought that he was certified. However, it was
61
Id.
62
Id.
63
Id.
64
B-28 (Dr. Bose Dep. at 28:6-11) (emphasis added).
23
brought to Dr. Carey’s attention that his name appeared to be stricken from the list of
current certified providers on the DOL website.65 Dr. Carey testified that “he did not get
the reminder e-mail to re-new his certification and he recently went online to take the
required test.”66 The Board found that “in the context of this case Dr. Carey’s error was de
minimus [sic],” but that “at some point a continuing failure to adhere to the process may
well bring different results.”67
Although these cases bear close resemblance to the facts at issue here, we are not
persuaded that we should judicially craft a de minimis exception to Section 2322D’s
requirements. In addition to our view that crafting such an exception lies within the
General Assembly’s province, various facts cut against creating a de minimis exception.
Dr. Bose still had the right to practice medicine and to treat workers’ compensation
patients. He simply needed to get pre-authorization while de-certified. Further, we are
hesitant to craft such an exception on this extremely limited record where the circumstances
surrounding the lapse are largely unexplained.68
Moreover, distinguishing between the minimum requirements in Section 2322
D(a)(1) and the additional terms and conditions in Section 2322D(a)(2) could deemphasize
the importance of staying compliant with the additional terms and conditions set out in
65
Zayes, No. 1365817, at 15. Even though Zayes was decided after Wyatt, the Board found a de
minimis exception anyway.
66
Id.
67
Id.
68
For example, we do not know why Dr. Bose’s Delaware Certification lapsed in 2019. We do
not know whether he ever received notification that his continuing education requirement was not
fulfilled. Nor do we know who was at fault for the administrative error.
24
Section 2322D(a)(2). These are policy determinations better left to the General
Assembly.69
B. The Balance Billing Issue is Not Ripe
Wilson contends that if his Second Cervical Surgery is found noncompensable, he
will be liable to Dr. Bose for his medical bills associated with this procedure.70 Employer
responds that such a result would be inconsistent with the Act’s remedial purpose and
possibly Section 2322F(l)(1)’s language. Although this issue was briefed fully here, and
it was briefed before the Superior Court, the Superior Court did not address the issue. Nor
will we because no such claim has been asserted. Any opinion by this Court would be
purely advisory.71 Thus, the issue is not ripe. Delaware courts will decline to exercise
jurisdiction over a case unless the underlying controversy has “matured to a point where
69
See Cordero v. Gulfstream Dev. Corp., 56 A.3d 1030, 1037 (Del. 2012) (explaining that an
“unfortunate result can only be corrected by the General Assembly, because courts lack the
constitutional power to rewrite the statute”).
70
Wilson points to Section 2322(F)(l)(2) & (3) and argues that he would be responsible if this
Court affirms Superior Court’s decision. Wilson contends that Section 2322F applies to medical
expenses incurred in connection with a work injury irrespective of a healthcare provider’s
certification status, and that Section 2322F(l)(2)(a) expressly permits a healthcare provider to
commence collection efforts against a claimant (an employee) once the issue of compensability is
ultimately decided. 19 Del. C. § 2322F(l)(2)(a). Accordingly, he argues that Section 2322F would
render him liable for the medical bills associated with his Second Cervical Surgery if his second
surgery is not compensable. The Employer counters that, “[f]undamentally, the healthcare
payment system provided under Chapter 19 does not permit a healthcare provider, as defined by
19 Del. C. § 2301(13), who is not certified as required by 19 Del. C. § 2322D to collect charges
for those services.” Ans. Br. at 17. Employer states that since Dr. Bose was not certified at the
time he performed the surgery, his charges were not “authorized by this chapter” or the “healthcare
payment system” under 19 Del. C. § 2322D. Id. Thus, Employer contends that Dr. Bose cannot
recover these charges.
71
Heathergreen Commons Condominium Ass’n v. Paul, 503 A.2d 636, 639 (Del. Ch. 1985)
(“Controversies that are hypothetical and would result in only an advisory opinion are not
justiciable.”).
25
judicial action is appropriate.”72 For these reasons, and given the undeveloped record on
this issue, we decline to address it.73
VI. CONCLUSION
For the reasons set forth above, the Court AFFIRMS the Superior Court’s decision.
72
Stroud v. Milliken Enters., Inc., 552 A.2d 476, 480 (Del. 1989) (citing Schick Inc. v.
Amalgamated Clothing & Textile Workers Union, 533 A.2d 1235, 1239 (Del. Ch. 1987)).
73
“To address a matter before the facts surrounding the dispute are fully developed necessarily not
only increases the risk of an incorrect judgment in the particular case, but risks, as well, an
inappropriate or unnecessary step in the incremental law building process itself.” Schick, 533 A.2d
at 1239 (citing Wright, Miller & Cooper, Federal Practice and Procedure § 3532 (1984)).
26