January 2015 Newsletter
WORKERS’ COMPENSATION REPORTS
Ongoing RSD Treatment Denied: Improved Condition or Improved Diagnostic Requirements?
At the December 1, 2014 hearing in the matter of Cindy Commisso v. I-Chem Company, the Hearing Officer did not accept claimant’s expert Dr. Getson’s opinion as credible. He said Dr. Getson’s testimony regarding claimant’s need for treatment on an indefinite basis, “while beneficial to Dr. Getson’s bottom line, [was] inconsistent with the HCPG.” The Hearing Officer also questioned claimant’s credibility, as reported functional limitations were contrary to the surveillance evidence presented. Claimant’s Petition for ongoing treatment with Dr. Getson and for authorization for RSD related gastrointestinal treatment was denied.
The claim began when claimant sustained a compensable work injury to her left knee in 1995. Consequently, the knee injury led to a diagnosis of Reflex Sympathetic Dystrophy (RSD), which spread to multiple body parts and was deemed compensable by the Industrial Accident Board in 1996. Claimant was treated by multiple physicians for treatment of RSD before coming under the care of Dr. Getson in 2003 when she began receiving compensable infusions of Ketamine almost every two weeks. The Employer/Carrier began denying ongoing treatment for RSD based on the defense medical opinion of Dr. Schwartz and claimant filed a Petition with the Board seeking payment of ongoing RSD treatment to include Ketamine infusions and alleged related gastrointestinal treatment.
Dr. Nathan Schwartz testified on behalf of the Employer/Carrier that the understanding of RSD and the related diagnostic requirements for the condition had changed significantly since claimant was first diagnosed in 1996. At of the time of her examination in 2014, claimant did not exhibit any of the signs required for a diagnosis of RSD in 2014. Dr. Schwartz also testified that Dr. Getson’s medical records did not contain findings supporting a diagnosis of RSD. Dr. Schwartz concluded that, even if claimant had RSD in the past, her current condition did not warrant this diagnosis in light of the updated diagnostic requirements such that ongoing treatment was no longer reasonable or necessary.
Dr. Getson conceded that his records did not document the specific diagnostic requirements, but testified that claimant continued to suffer from RSD based on her prior history and his ongoing clinical evaluations. He went on to testify that people do not recover from RSD and that her functional improvement and reduced symptoms were the result of her ongoing treatment with his office, which she continued to require on an indefinite basis. The Board’s rejection of Dr. Getson’s testimony led to the denial of claimant’s Petition, thus ending over a decade of Ketamine infusion treatments.
Feel free to contact Amy M. Taylor for more information about the above decision.
Amy Taylor, Attorney for the Employer
Cindy Commisso v. I-Chem Company, Hearing No. 1058953 (Dec. 1, 2014).
LITIGATION CASE LAW UPDATE
Superior Court Grants Motion to Dismiss Medical Negligence Action Finding that Plaintiff Failed to Adhere to the Strict Statutory Requirements for an Affidavit of Merit
The plaintiff, Rebecca Benson, filed a medical negligence action against her podiatrist, Edwin Mow, D.P.M., for an alleged improperly performed surgery. The suit, filed on the last date of the statute of limitations, was not accompanied by an affidavit of merit; however, the court granted plaintiff’s motion to extend the time to file the affidavit. Subsequently, the affidavit was prepared and executed by a physician who was board qualified but not board certified.
Defendant moved to dismiss the lawsuit on two theories. The first was that the statute of limitations had expired, as the affidavit of merit was deficient in that it was not executed by a board certified podiatrist. The second theory was that the statute of limitations had run due to untimely service and that an unreasonable delay prevented the tolling of the statute of limitations pointing out that the Complaint was filed without an affidavit of merit.
The court granted the motion to dismiss finding that the affidavit of merit was deficient. The court noted that the plaintiff’s medical expert was not board certified as was required under the facts of the case. As a result, the extension granted to file the affidavit of merit did not toll the statute of limitations since the affidavit was deficient. The court found the plaintiff did not commence the action within the prescribed statute of limitations and dismissed the lawsuit.
Benson v. Mow, 2014 Del. Super. LEXIS 619
Feel free to call one of our liability attorneys for further discussion of the above matter.
Delaware Minimum Wage Increase Effective Summer 2015
As of June 1, 2015, the minimum wage in Delaware will be increased to $8.25 per hour from its current level of $7.75. Delaware is one of the 29 states that currently have a minimum wage higher than the Federal minimum of $7.25. The new wage increase is not reflected in Delaware’s minimum wage for employees who receive tips, which remains at $2.23 per hour. Delaware’s minimum wage exemptions for agricultural workers, domestic service workers, Federal employees, bona fide executives, et al. still apply. For further discussion of additional exemptions, please call one of our attorneys.
Heckler & Frabizzio congratulates Mr. John Morgan who celebrates his 15-year anniversary with the firm. We thank him for his service and dedication to the firm and our clients.
On February 11, 2015, Heckler & Frabizzio will be recognized for their 100% participation in the Combined Campaign for Justice 2014. The Combined Campaign for Justice works to provide legal aid to low-income Delawareans.
4th Annual Workers’ Compensation Law & Practice
Amy M. Taylor will be participating as a presenter in the 4th Annual Workers’ Compensation Law and Practice CLE on Thursday, March 5, 2015 at the Crowne Plaza Wilmington North, 630 Naamans Road, Claymont, Delaware. Registration begins at 8:00 a.m. and the presentations begin at 8:30 a.m. until 4:30 p.m. Stay ahead of emerging developments in the legislation and practice to better serve your clients. Register today at www.sterlingeducation.com!