           IN THE SUPREME COURT OF THE STATE OF DELAWARE


HOWARD VANVLIET,                    §
                                    §      No. 242, 2014
      Claimant-Below,               §
      Appellant,                    §      Court Below: The Superior
                                    §      Court of the State of Delaware
                                    §      in and for Kent County
      v.                            §
                                    §
D & B TRANSPORTATION,               §      C.A. No. 13A-06-002 JTV
                                    §
                                    §
      Employer-Below,               §
      Appellee.                     §

                         Submitted: November 19, 2014
                         Decided:   November 20, 2014


Before STRINE, Chief Justice, HOLLAND, and RIDGELY, Justices.

Upon appeal from the Superior Court. AFFIRMED.


Walt F. Schmittinger, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware,
for Appellant.

Cheryl A. Ward, Esquire, Franklin & Prokopik, Wilmington, Delaware, for
Appellee.



STRINE, Chief Justice:
       The appellant, Howard VanVliet, seeks reimbursement from his employer, D & B

Transportation, under Delaware’s Workers’ Compensation Act for surgery performed on

him by a Maryland surgeon who was not certified under § 2322D of the Act.1 Earlier in

this matter, the Superior Court issued an opinion indicating that the fact that the surgeon

was not certified did not act as a total bar to VanVliet’s ability to receive reimbursement

from his employer for the cost of the surgery.2 The Superior Court remanded the matter

to the Industrial Accident Board to address whether VanVliet should receive

reimbursement for his surgery and related expenses in light of its opinion.

       In the interim between the issuance of that decision and the Board’s rulings on

remand, this Court decided Wyatt v. Rescare Home Care.3 In Wyatt, this Court held that,

with exceptions not applicable to VanVliet’s situation, a claimant could not obtain

reimbursement for care provided by a physician who was not certified under § 2322D.

The Wyatt Court was aware of and considered the Superior Court’s contrary ruling in

VanVliet’s case, but differed in its interpretation of the Workers’ Compensation Act.

Accordingly, when the employer appealed the Board’s award of reimbursement for the

surgery costs to VanVliet, the Superior Court applied Wyatt and reversed the Board’s

decision.4

       In this appeal, VanVliet appears to argue that Wyatt was wrongly decided because

there is no way to compel non-Delaware physicians to become certified. That is of


1
  19 Del. C. § 2322D.
2
  VanVliet v. D & B Transportation, 2012 WL 5964392 (Del. Super. Nov. 28, 2012).
3
  81 A.3d 1253 (Del. 2013).
4
  D & B Transportation v. VanVliet, 2014 WL 1724833 (Del. Super. Apr. 30, 2014).
course true, although it is a fact of record that VanVliet’s surgeon was the only one in her

practice who was not certified in Delaware to perform medical treatments under the

Delaware Workers’ Compensation statute. That demonstrates that non-Delaware

physicians can become certified and have an economic incentive to do so if they wish to

treat patients who wish to receive reimbursement under the Act. If a non-Delaware

physician decides not to become certified, that is her choice, but in that case, she suffers

no deprivation of her legal rights by being denied the benefits that come with

certification. We also note that non-Delaware physicians who are not certified may seek

pre-authorization from the claimant’s workers’ compensation carrier to provide specific

services in accordance with § 2322D(a)(1) of the Act.

       All of us agree that this case cannot be distinguished from Wyatt, and that under

Wyatt’s interpretation of the statute, VanVliet is not entitled to reimbursement for

surgery. It is undisputed that the surgery was performed by a non-certified Maryland

surgeon and none of the limited statutory exceptions to the certification requirement

applied.5

       The Superior Court, therefore, did not err and its judgment is AFFIRMED.




5
 One of us believes it is a close question whether Wyatt was correctly decided or whether the
Superior Court’s different earlier interpretation in this matter is correct, in view of the
complexity of the statutory provisions and the liberal construction that is generally given to the
Act. But none of us believe that we should deviate from the principle of stare decisis given the
General Assembly’s ability to amend the Act if it disagrees with our interpretation in Wyatt.
