A claims administrator sent an injured employee 100 miles for a medical evaluation. He turned in a lunch expense for reimbursement – a $37 meal at an Outback Steakhouse. Did workers’ comp pay for the lunch?
Carlos Silveti is a chef at Ohio Valley Nursing Home in Parkersburg, West Virginia. He injured his left shoulder and left knee when he slipped and fell exiting a walk-in refrigerator at work. He was given workers’ comp benefits.
A claims administrator ordered a medical exam for Silveti to determine whether his current treatment was medically necessary and appropriate for his injury and whether he’d achieved maximum medical improvement. The claims administrator sent Silveti to an exam about 100 miles away in Fairmont, WV, despite there being multiple exam locations in Parkersburg. West Virginia’s workers’ comp law requires claims administrators to schedule medical exams “as near as practicable to the claimant’s residence.”
Silveti spent six hours that day (11 a.m. to 5 p.m.) traveling to, attending and returning from the appointment. He ate one meal, about 20 miles from Fairmont – lunch at an Outback Steakhouse which was $37.
West Virginia’s comp law says a claimant is entitled to reimbursement for reasonable travel expenses, including meals, in connection with an ordered medical exam.
The claims administrator denied reimbursement for the meal. She ruled it wasn’t a “reasonable” travel expense because Silveti’s travel to his medical appointment didn’t require an overnight stay.
The Workers’ Compensation Office of Judges and Workers’ Compensation Board of Review both affirmed the ruling. Silveti appealed to the West Virginia Supreme Court.
His employer argued the claims administrator isn’t required to reimburse Silveti for meals if his travel didn’t require an overnight stay. The state workers’ comp law says “in determining reasonableness,” the travel regulations for state employees should be used as a guide. Those regs state, “Meal expenses are reimbursable for travel requiring overnight lodging.”
However, a majority of justices on the state’s highest court said the statute states:
“The party that required the medical examination shall reimburse the claimant for reasonable traveling expenses as set forth in subsection e.”
Subsection e says, “The claimant’s traveling expenses include, at a minimum, reimbursement for meals, lodging and mileage.”
The word “shall” comes into play here. The court ruled “shall” makes it clear the claims administrator doesn’t have discretion to deny reimbursement for reasonable travel expenses.
The justices in the majority pointed to other states with similar laws, including Arizona, California, Idaho, Indiana, Kentucky, Minnesota, New Mexico and Oregon.
The court said in this case, the claims administrator had improperly shifted the cost of a travel expense incurred obtaining work-related medical treatment to Silveti.
As for determining what is reasonable, the court said there is already a regulation in place. State law set the limit at the per diem rate established by the federal government for state employee travel.
The West Virginia Supreme Court overturned the decision to deny Silveti compensation for his $37 lunch. The court noted that, “This case should not be read to require a party who orders a medical examination of a workers’ compensation claimant to reimburse the claimant for ‘travel expenses’ when the claimant did not travel outside the area in which he or she resides to attend the medical examination.”
The majority on the court also sent another message to claims administrators regarding these cases. The court said sending Silveti 100 miles away for the medical appointment created a “hurdle to Mr. Silveti obtaining his workers’ compensation benefits.” The justices also said potential reimbursement costs could be kept down by sticking with the requirement that medical appointments should be scheduled “as near as practicable to the claimant’s residence.”
Translation: Don’t sent workers’ comp claimants far away for medical exams to discourage them from pursuing benefits.
One justice dissented. Justice Beth Walker said the majority’s decision “voids the Insurance Commissioner’s interpretation of the term ‘reasonable.'”
“I would affirm the Board of Review’s decision that Mr. Silveti’s down-under repast is not a reasonable travel expense that is reimbursable under [state law],” Justice Walker wrote.
Justice Walker makes another couple of observations on this case. With this decision, the de facto rule in West Virginia is that meals will be paid for when travel and appointment time total six hours or more.
And the Justice poses this question: “One wonders how much time Mr. Silveti spent consuming his post-[medical appointment] meal. Forty-five minutes? Ninety minutes? Based on the majority’s opinion, it appears that Mr. Silveti’s time at table is included in the six hours of travel time. This inclusion creates a perverse incentive for a claimant to extend the length of his or her meal.”
But this fact still remains: If the claims administrator hadn’t sent Silveti 100 miles away for his medical exam, it’s likely there wouldn’t be a question about paying for a $37 lunch. We don’t know why the claims administrator sent him that far away. We do know West Virginia law says “don’t do that” without having a really good reason.
(Carlos D. Silveti v. Ohio Valley Nursing Home Inc., Supreme Court of Appeals of West Virginia, No. 17-0746, 4/11/18)