Jessica M. Karmasek Apr. 24, 2013, 7:00pm

WILMINGTON, Del. (Legal Newsline) -- The Delaware Supreme Court, in a ruling earlier this month, sided with a group of injured workers in a case over their workers' compensation benefits.

Claimants Cecil Palomino, Salvador Avila-Hernandez and Julio Munoz were each injured in different work-related accidents. It was not disputed that their injuries are compensable under the Workers' Compensation Act and that some workers' compensation payments have been made.

However, after their doctors recommended certain treatments, the claimants' employers requested determinations as to whether the treatment plans fell outside of the Health Care Practice, or HCAP, guidelines through a utilization review, or UR, authorized by 19 Del. C. Section 2322F(j).

The UR panel determined that portions of their treatments were not approved for coverage.

The claimants then petitioned the Industrial Accident Board for review of the UR determination. They did so after the 45-day time window prescribed by Department of Labor Regulation 5.5.1.

The board, in turn, dismissed the petitions as untimely.

Claimants appealed to the New Castle County Superior Court, which determined that the 45-day limit of Regulation 5.5.1 is invalid because it conflicts with 19 Del. C. Section 2361.

The applicable portion of Section 2361 provides that "[w]here payments of compensation have been made in any case under an agreement approved by the Board or by an award of the Board, no statute of limitation shall take effect until the expiration of five years from the time of the making of the last payment for which a proper receipt has been filed with the Department."

The claimants' employers, Christiana Care Health Services, Timber Products and Berger Brothers appealed the superior court's judgment.

A majority of the state's high court, in its April 11 opinion, found no merit to the employers' appeal and affirmed the superior court's ruling.

Justice Henry duPont Ridgely wrote the majority's opinion.

"Employers argue that Regulation 5.5.1 does not create a 'statute of limitations' because it does not foreclose the claimant's right to recover additional worker's compensation benefits for the injuries at issue. In other words, because Regulation 5.5.1 does not foreclose all claims, but rather only specific worker's compensation claims, the regulation does not operate as a statute of limitations," Ridgely wrote.

"We find no merit to this argument, because it ignores the practical effect of the regulation, which is to bar a claim that is not made within 45 days of the UR determination."

The justice continued, "Indeed, if a claimant's sole claim for worker's compensation or only remaining claim were submitted for utilization review outside of the 45-day window, the claim would be barred by the Regulation, even if it were otherwise within the five-year time limitation of Section 2361."

The employers also argued that the 45-day time allowed to appeal is larger than that allowed in many other appeal procedures.

But, as the majority noted, the UR panel is neither a court nor an administrative agency.

"The General Assembly expressly intended that 'if a party disagrees with the findings following utilization review, a petition may be filed with the Industrial Accident Board for de novo review,'" Ridgely wrote. "The DOL regulation limits this statutory right.

"Even if a UR determination somehow qualifies as an appeal, the jurisdiction of the Board and any time limitation for de novo review is a matter for the General Assembly and not the DOL to decide."

From Legal Newsline: Reach Jessica Karmasek by email at

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