Claimant suffered a work injury to the left knee in 1998, after which he underwent multiple surgeries that culminated in a total knee replacement. After the knee replacement surgery, Claimant developed infections, which lead to the extraction of the knee prosthetic and a subsequent left knee fusion.

Prior to Claimant’s Petition to Determine Additional Compensation, he had been being compensated for 75% impairment to his left lower leg, a figure that is an aggregate of incremental permanency decisions from 2000 to 2007. The Industrial Accident Board denied Claimant’s Petition to increase his compensation to reflect permanent impairment of 95%.

The Board found Employer’s medical expert Dr. Matz more credible because Claimant’s expert Dr. Bandera relied on a table in the 5^th edition AMA Guide pertaining to total knee replacements, and not the table in the 6^th edition AMA guide pertaining to the fusion surgery, which is the procedure most recently underwent by Claimant. Additionally, the Board could not accept Claimant’s 95% impairment claim in light of the fact that Claimant still has use of his left hip and left ankle.

Anthony M. Frabizzio, Attorney for the Employer

Hopkins v. City of Wilmington (IAB Hearing No.: 1127157)

Plaintiff incurred $3,683,797.11 in total charges from treatment for injuries sustained while she was a resident of a rehabilitation center in lower Delaware. Of the total charges, $262,550.17 was paid by Medicare, resulting in the satisfaction of all charges due to the negotiated rates paid by providers who participate in the Medicare program. Plaintiff argued that she is entitled to the total charges, including the written-off amount, under the collateral source rule.

The Court referred to Rice v. The Chimes, Inc., wherein “the Superior Court reasoned that the collateral source rule did not apply to expenses that are never paid” and to Mitchell v. Haldar, where the Court made a distinction between “benefits received as a consequence of a contract with a private insurer from benefits received under operation of federal law.”

Additionally, the Court affirmed the Superior Court’s decision barring the collateral source rule from being applied to the Medicare write-off portion of Plaintiff’s expenses because Plaintiff neither contracted with any of her providers for discounted care nor contracted for Medicare benefits.

The Court also discussed the factors in determining the reasonable value of medical care and argued that the Medicare negotiated rate, that Plaintiff is entitled to recover, is suggestive of the true reasonable value of medical expenses. Moreover, the Court indicated that Plaintiff would not be obligated to pay any amount higher than that which was paid by Medicare; therefore, rejecting the idea that she could be held liable for the unadjusted charges in the future.

The Court ultimately stated that the recovery of “theoretical expenses,” which a Plaintiff or insurer will never have to pay, increases costs “and bestows windfalls on certain plaintiffs, not for rational reasons, but for happenstance.”

For more discussion on this decision, please contact one of our Liability Department Attorneys.

Stayton v. Delaware Health Corporation, et al. No. 601, 2014 (June 12, 2015)

A proposed rule change by the United States Department of Labor would increase the salary threshold under which white-collar salaried workers are eligible to receive overtime from $23,660 to $50,440 in 2016.

According to a White House fact sheet, the change is expected to affect 4, 680,000 workers nationwide, of which 20,000 are Delawareans.

For further discussion, please contact one of our Employment Law Department attorneys.

Workers’ Compensation attorney Bill Rimmer participated in the National Workers’ Compensation Defense Network (NWCDN) Spring Conference in Nashville, Tennessee on June 18, 2015.

Next year, NWCDN heads to Chicago for their Fall 2016 Conference on Thursday, September 22, 2016. Please look for more information about this opportunity in the coming months.