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VanVliet v. D&B Transportation, --- A.3d ---, 2014 WL 6998114 (Del. Nov. 20, 2014).

Relying upon Wyatt, the Supreme Court affirms a Superior Court decision holding that a Claimant is not entitled to reimbursement for costs of surgery performed by a physician who is not certified under Delaware’s workers’ compensation health care payment system.

Claimant, Howard VanVliet, underwent a surgery performed by a Maryland surgeon who was not certified under §2322D of the Delaware Workers’ Compensation Act. Additionally, the provider/Claimant did not seek preauthorization for the surgery. The Supreme Court held that Claimant’s case could not be distinguished from Wyatt v. Rescare Home Care, 81 A.3d 1253, and that none of the limited statutory exceptions to the certification requirement applied. Claimant argued that Wyatt was wrongfully decided because there is no way to compel an out of state physician to become certified. The Court acknowledged that to be true, but noted that Claimant’s surgeon was the only non-certified physician in her practice and that non-Delaware physicians have a clear economic incentive to become certified or to seek preauthorization if they wish to receive reimbursement under the Workers’ Compensation Act.

In a footnote, the Court indicated that it was a close question whether Wyatt’s interpretation or the Superior Court’s initial interpretation in this case was correct. See VanVliet v. D&B Transp.¸ 2012 WL 5964392 (Del. Super. Nov. 28, 2012) (holding that treatment from a non-certified physician could still be compensable, but that non-certified providers are not entitled to the presumption that the treatment is reasonable and necessary). The Court confirmed that it would adhere to stare decisis, and that any change to the law would necessarily have to come from the General Assembly.

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