WORKERS’ COMPENSATION REPORT
Just Say No to Drugs…and Lasers
Non-Certification of Pain Management Treatment, Narcotic Medication, and Laser Therapy Affirmed
Claimant sustained a compensable left ankle injury in 2005. Claimant continued to treat for this condition for years following same. In 2016, Employer filed a Utilization Review (UR) challenging as non-compliant various treatment with Dr. Balu, to include office visits and narcotic medication, as well as laser therapy treatment provided by Dr. Broskoskie. The UR found the treatment non-compliant, and Claimant appealed the UR determination. Accepting the testimony of Dr. Schwartz and Dr. Stephens over Dr. Balu, the Board affirmed the non-certification.
The Board chastised Dr. Balu for extremely poor records keeping practices, noting that his documentation was “entirely lacking in specificity” and did not provide any proof of the efficacy of the treatment. There was no documentation of positive patient response. In fact, there were references in the records to the medications providing “zero” relief, and Claimant testified that the medications provided relief only for a very transient period of minutes after taking same. There was a period in time where Claimant was without medications, and the Board found it quite significant that Claimant’s subjective pain scores actually decreased during this drug holiday. Dr. Balu made no attempts to change the treatment plan despite the lack of response. The Board felt that due to the above, the Claimant should be immediately and aggressively weaned from medications.
The Board also felt that both Dr. Balu and Dr. Broskoskie’s records were totally devoid of documentation showing positive patient response to the laser therapy treatment, and therefore, this care was not reasonable or necessary. The Board also relied on Dr. Schwartz’s testimony that laser therapy is not FDA approved for use on the ankle, the effects of this treatment are like those of heat pads, only at a much higher cost, and that lasers have not been scientifically shown to produce any sustained symptom relief.
Should you have any questions concerning this Decision, or medical documentation required to justify payment of pain management treatment, please contact John Ellis, or any other attorney in our Workers’ Compensation Department.
Michael Wilkins v. Matrix Industrial Services, IAB Hrg. No. 1267741 (Sept. 5, 2017).
LITIGATION CASE LAW UPDATE
Roommate Sisters Not Hindered by ‘Owned-but-Uninsured’ Exclusion
In February 2016, a female plaintiff was residing in the same household as her sister. At that time, plaintiff was involved in a motor vehicle accident in which she had an insurance policy through GEICO. She settled with the tortfeasor for his policy limits. She proceeded to submit a claim through GEICO for additional coverage but was denied due to non-payment of premiums. Plaintiff then filed a claim to GEICO through her sister’s UIM policy. GEICO argued an exclusion in the sister’s policy voided coverage for bodily injury sustained in an accident with a vehicle that is owned by an insured, but which is uninsured, known as the “owned-but-uninsured exclusion”.
The Delaware Superior Court in an opinion dated September 8, 2017, denied GEICO’s Motion for Summary Judgment. Plaintiff was indisputably covered under her sister’s UIM policy since insureds were defined as relatives and residents of the same households, which the sisters were on the date of the accident. UIM coverage is personal to the insured rather than vehicle- related so plaintiff’s UIM coverage is not dependent on the coverage status of her vehicle under Delaware law. Plaintiff would be entitled to UIM coverage regardless of whether her own vehicle was covered since she was covered under her sister’s UIM policy.
The Court also held “exclusions on UIM coverage must be specifically authorized by statute and not against public policy.” Section 3902 of the Delaware Insurance Code does not authorize “other-motor-vehicle” exclusions. This interpretation, combined with the fact Section 3902 does not specifically authorize an other-motor-vehicle exclusion, of the “owned-but-uninsured exclusion” that GEICO seeks to impose on plaintiff, could not be used to restrict her UIM coverage.
As a final note, the Court declared the “owned-but-uninsured exclusion” is against public policy. The public policy beneath UIM coverage is “the protection of innocent persons from the negligence of unknown or impecunious tortfeasors.” The attempt to use an owned-but-uninsured exclusion by GEICO goes against public policy and thus, cannot function as a bar to UIM coverage here for plaintiff or anyone, unless changes are made to Delaware law by the legislature.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Lee v. Geico Choice Ins. Co., 2017 Del. Super. LEXIS 366 (Del. Super. Ct. Sept. 7, 2017).
EMPLOYMENT CASE LAW UPDATE
Remaining Legal: U.S. Citizenship and Immigration Services Institute New I-9 Revisions
Under the Immigration Reform and Control Act of 1986, employers who knowingly hire undocumented aliens/ workers are subject to sanctions and as such, must make reasonable efforts in order to verify the status of each employee they hire. Using Form I-9 provided by United States Citizenship and Immigration Services (“USCIS”), employers are able to “verify[ ] the identity and employment authorization of individuals hired for employment in the United States.” Form I-9 is required to be completed for both United States citizens and non-citizens and documentation must be provided in order to confirm the identity and work-status of that individual.
On July 17, 2017, USCIS released a revised version of Form I-9, making minimal changes to both the instruction section and the list of acceptable documents. The applicable changes are as follows:
1) The Office of Special Counsel for Immigration-Related Unfair Employment Practices is now “Immigrant and Employee Rights Section”;
2) The phrase “the end of” was removed from the phrase “the first day of employment”;
3) Consular Reports of Birth Abroad are now acceptable under List C;
4) All Certifications of Report of Birth issued by the State Department has been combined to be one selection (C #2) under List C; and
5) List C has been renumbered, except for the Social Security Card.
Employers must start using the revised I-9 form as of September 18, 2017. The revised form can be accessed at https://www.uscis.gov/i-9.
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
THIS DAY IN LEGAL HISTORY
September 20, 1859
Electric Stove Patented in 1859
On this day September 20, 1859, an obscure man named George B. Simpson was awarded U.S. patent #25532 for an “electro-heater’ device heated by a platinum-wire coil and powered by batteries. According to his patent application, this device could be used to “warm rooms, boil water, (and) cook victuals.” Not much more is known about George B. Simpson, but his invention lives on in the hundreds of devices that use electricity to heat food today.
CONGRATULATIONS TO AMY M. TAYLOR OUR NEWEST PARTNER!
Heckler & Frabizzio is pleased to announce Amy M. Taylor has become a Partner. Ms. Taylor joined the Firm in June of 2009 and since has defended employers and insurance companies. Ms. Taylor focuses her practice on General Liability.
H&F WELCOMES NICHOLAS BITTNER
Nicholas E. Bittner is an associate in the firm’s workers’ compensation department and was admitted to practice law in Delaware in 2016. He graduated from Bucks County Community College with an A.A. in Police Administration in 2011, Temple University with a B.A. in Criminal Justice in 2013, and obtained his J.D. from Villanova University School of Law in 2016. Mr. Bittner has an extensive background in investigation and litigation, owing to a work and educational history of private security and criminal justice, including two years of experience in criminal defense and nearly two years of experience working in the New Castle County Court of Common Pleas. In law school, Mr. Bittner served on the Honor Board for three years, was published in the Jeffrey S. Moorad Sports Law Journal, and served as an editor on the Sports Law Journal.
Mr. Bittner is also an accomplished guitarist, a stand-up comedian, and the author of two books on philosophy. He has no children, but he does have a twenty-pound cat named Loki.
FIRM PICNIC (RECAP)
On August 25, 2017 we celebrated the hard work that goes into our business at our annual Firm Picnic. We had a great turn out and the staff had a ton of fun. Please see pictures below. Thank you to all of our staff and thank you to Kimberly Misner-Hindes & Bradley Hidnes for the custom Corn-hole boxes shown below!