Who Decides on a Denied Workers’ Comp Surgery?
A denial from the workers’ comp insurance company is not the last word on your surgery in Delaware. Under 19 Del. C. § 2322, your employer has to furnish reasonable surgical, medical, and hospital services during your disability, and the Industrial Accident Board can require it to furnish additional services.
What you do next depends on why the surgery was denied. If the insurer accepts your injury but questions whether the surgery is reasonable or necessary, it can send the request to utilization review, and you have 45 days from receiving that decision to appeal it to the Board. If the insurer says the surgery is not related to your work injury, you can take that question to the Board on a petition.
Is the Insurer’s Surgery Denial Final?
No, though it can look that way. A surgery request goes from your surgeon’s office to the adjuster, and the surgeon’s office may tell you it cannot schedule until the insurance company signs off.
That is the insurer’s position, not a ruling. Delaware law puts the final call with the Industrial Accident Board, and the route there depends on the reason for the denial. The first job is to find out which reason you are dealing with.
What Medical Care Must the Employer Cover?
Section 2322 of Title 19 sets the baseline, and three parts of it matter here:
- Section 2322(a): during the period of disability, the employer shall furnish reasonable surgical, medical, dental, optometric, chiropractic, and hospital services, medicine, and supplies.
- Section 2322(b): if the employer, on application, refuses to furnish those services, the employee may get them and shall receive the reasonable cost from the employer.
- Section 2322(c): on application to the Board by the injured employee or someone on the employee’s behalf, the Board may, at its discretion, require the employer to furnish additional services.
The words at the center of these disputes are reasonable and, when the insurer challenges treatment through utilization review, necessary. The Delaware Office of Workers’ Compensation describes utilization review as deciding whether treatment is “reasonable, necessary, and related to the work injury.”
Why Was the Surgery Denied?
Get the reason in writing. Under section 2322F(e), a denial of payment for health care services, in whole or in part, has to come with a written explanation of the reason. For a surgery that has not happened yet, ask for the reason in writing anyway. It tells you which path you are on.
| The insurer says the surgery is not reasonable or necessary | The insurer says the surgery is not related to the work injury | |
|---|---|---|
| Claim status | The injury is an acknowledged compensable claim | The insurer disputes that this treatment comes from the work injury |
| First step | Utilization review | A petition to the Industrial Accident Board |
| Key deadline | 45 days from receipt of the UR determination to appeal | The petition has to be filed; ask about timing for your claim |
| Who decides in the end | The Board, on de novo review, if you appeal | The Board |
A denial letter can raise more than one reason, or a different reason entirely, such as incomplete documentation. If it does, each one needs its own answer.
What Is Utilization Review in Delaware?
The Delaware Office of Workers’ Compensation describes utilization review as a process that uses independent medical experts to decide whether treatment is reasonable, necessary, and related to the work injury. It is used when the insurer questions treatment, especially when care falls outside Delaware’s health care practice guidelines or the documentation is incomplete.
Under section 2322F(j), an employer or insurance carrier may request utilization review to evaluate the quality, reasonableness, or necessity of proposed or provided health care services for acknowledged compensable claims. That last phrase is the limit. Utilization review is for treatment on a claim the insurer has already accepted.
Section 2322F(h) adds a timing rule on the billing side. When an insurer contests a bill on an accepted claim because of compliance with the health care guidelines, the bill has to be referred to utilization review within 15 days of the denial.
A utilization review determination is not the end of it. Section 2322F(j) says that if a party disagrees with the findings, a petition may be filed with the Industrial Accident Board for de novo review, which means the Board looks at the question fresh rather than deferring to the reviewer’s conclusion.
How to Appeal a Utilization Review Denial
The Department of Labor has a specific form for this, the Petition to Appeal a Utilization Review. The form cites 19 Del. C. § 2322F(j) and 19 DE Admin. Code 1341, and it states two requirements plainly:
- The deadline: the appeal must be filed within 45 days from the date you received the UR determination.
- The attachment: the UR determination itself must be attached.
Write down the date the determination arrived. Keep the envelope. The 45 days run from receipt, so that is the date that matters.
Section 2347(e)(8) adds one more procedural point: for utilization review appeals under section 2322F(j) and requests for additional medical benefits under section 2322(c), the Board requires petitions to determine additional compensation rather than a petition to review. The Office of Workers’ Compensation petition forms page lists both the Petition to Appeal a Utilization Review and the Petition to Determine Additional Compensation Due.
Surgery Denied as Not Work-Related
That is a different argument, and utilization review is not the tool for it. Utilization review under section 2322F(j) is limited to acknowledged compensable claims. When the insurer’s position is that your knee, back, or shoulder problem did not come from the work accident, the question of whether it has to pay goes to the Board.
Section 2322(c) is one source of the Board’s power here. On application by the injured worker, the Board may require the employer to furnish additional services. The Office of Workers’ Compensation offers a Petition to Determine Additional Compensation Due for requests like this.
A relatedness fight is decided on medical evidence. The insurer’s position may rest on a records review or an exam with a doctor it chose and paid, which is the structural point behind the difference between an IME and a DME. Your surgeon’s written opinion on how the work injury caused the condition that needs surgery is the evidence that responds to it.
Medical Records That Support Your Surgery
Whether the fight is about necessity or about relatedness, the Board decides it on the record. Before the petition is filed, these are the questions worth putting to your file:
- Does the surgeon’s note explain why surgery, and why now? The reasoning belongs in the note itself.
- Is the treatment you already tried documented? Physical therapy, injections, medication, and time off work, with dates.
- Do the imaging reports match the recommendation? MRI, CT, or X-ray findings that line up with the procedure being requested.
- Does the record connect the condition to the work injury? The surgeon’s opinion on causation, in writing, not assumed.
- Is the surgeon a DOL-certified provider? Certification affects billing and disputes under Delaware’s health care payment system.
If you chose your own treating doctor, and Delaware generally lets you do that, how choosing your own doctor works in a Delaware comp claim is worth reading alongside this.
Can You Have the Surgery Before Approval?
Section 2322(b) says that if the employer, on application, refuses to furnish the services, the employee may get them and shall receive the reasonable cost from the employer. That is the statutory basis for going forward before the dispute is resolved.
It is also a risk. The cost you recover is the reasonable cost, and whether the employer owes it can still be contested at the Board. If the Board decides the surgery was not reasonable, not necessary, or not related, the question of who pays the bill does not go away. That decision deserves a conversation with your surgeon and a lawyer before the date is set, not after.
What to Do After a Surgery Denial
Work through these in order.
- Get the denial and its reason in writing. Section 2322F(e) requires a written explanation when payment for health care services is denied.
- Identify the reason. Reasonableness and necessity point to utilization review. Relatedness points to a Board petition.
- Date the UR determination the day it arrives. The 45-day appeal window runs from receipt.
- Ask your surgeon’s office for the full recommendation. The office note, the imaging reports, and a record of the conservative treatment already tried.
- Ask your surgeon for a written causation opinion. If relatedness is the issue, that opinion is the core of your case.
- Do not schedule the surgery on your own dime without advice. Section 2322(b) exists, and so does the risk of an unpaid bill.
- Keep every letter in one folder by date. Denial, UR determination, envelope, office notes.
What a Lawyer Does on a Surgery Appeal
Filing a petition or appearing before the Industrial Accident Board does not require a lawyer. Here is what counsel changes in a surgery dispute.
The right petition gets filed on the right path and inside the 45-day window where utilization review applies. The UR determination can be read for what the reviewer relied on and what was left out of the records sent to them. Your surgeon’s testimony can be put in front of the Board to answer the reasonableness, necessity, or relatedness question directly. And if the insurer’s position rests on its own doctor’s opinion, that opinion can be tested.
Heather Long was a paramedic before she was a lawyer and started her career on the insurance defense side. In a surgery dispute, both come into play: reading the medical record for what it actually supports, and knowing the insurance company’s side of a treatment denial. Her background is on her attorney page, and more on the firm’s comp work is on the Delaware work injury practice page.
This article is general information about Delaware law, not advice about your claim. Whether a specific surgery gets approved depends on the medical evidence and the record before the Board.
FAQs about Workers’ Comp Surgery Denials
How long do I have to appeal a utilization review denial?
The Department of Labor’s appeal form states that the appeal must be filed within 45 days from the date you received the UR determination, with the determination attached.
Does the utilization review doctor have the final say?
No. Section 2322F(j) lets a party who disagrees with the utilization review findings petition the Industrial Accident Board for de novo review, which means the Board considers the question fresh.
What if the insurer never answers the surgery request?
Keep a dated record of when the request was made and every follow-up. Section 2322(b) turns on a refusal after application, and section 2322(c) lets you apply to the Board for additional services, so those dates matter either way.
Is there a fee to review my denial?
Nothing to have it reviewed. The firm works on contingency, so there is no retainer and no attorney fee unless there is a recovery, and consultations are free, including over Zoom.
Bring In Your Surgery Denial Letter
If the insurance company has turned down a surgery your doctor recommended, the first call sorts out one thing: whether this is a utilization review appeal with a deadline already running, or a relatedness fight that goes straight to the Board.
Bring the denial letter, the UR determination and its envelope if there is one, your surgeon’s recommendation, any imaging reports you have, and a list of the treatment you have already tried with rough dates. That is enough to see which path you are on and what the record still needs.
Heather’s office is at 501 Main Street in Odessa, and Zoom consultations are available if you are working around medical appointments. Give us a call, 302-466-5664, or use the firm’s consultation request page.
