Sometimes you just have to shake your head. We know workers’ comp can be extremely complicated. It faces complex issues and uncertain outcomes. Sometimes benefits or treatment are denied for a good reason. And we know that expensive litigation can be the result of these actions.
But when I read about a drawn-out case over what appears to be a trivial expense denial, I just have to scratch my head. I never fail to be amazed at the short term thinking that our industry can sometimes display. That was the situation with a West Virginia Supreme Court decision that came down last week.
West Virginia attorney Dill Battle wrote a brief article about this case, which was published here in our WC Blogwire. The entire ordeal centered around the denial of a meal reimbursement request for an injured worker who spent 6 hours traveling to an employer ordered IME.
Mr. Battle explains:
In Silverti v. Ohio Valley Nursing Home, Inc. (No. 17-0746 April 11, 2018), the West Virginia Supreme Court ruled that a workers’ compensation claimant who is ordered to attend a medical examination shall be reimbursed his or her reasonable travel expenses incurred in connection with attending the ordered medical examination. These travel expenses include, at a minimum, reasonable expenses for meals, lodging, and mileage. The case involved the denial of the cost of one meal incurred by the claimant who traveled 100 miles from his home for an IME scheduled on behalf of the employer. The claimant spent 6 hours for traveling to, attending and returning from the IME, during which time he ate one meal. He sought reimbursement for the meal expense he incurred while attending the medical examination. The employer argued the claim administrator did not have to reimburse the claimant for reasonable costs of meals because his travel did not require overnight lodging. The employer’s argument relied on workers’ compensation regulation W. Va. C.S.R. §85-1-15.1 which used as a guide a regulation for state employee travel limiting the meal reimbursement. The Court determined the state employee travel regulations requiring an overnight stay before reimbursing meal expenses conflict with the statutory requirement in the workers’ compensation statute governing medical examinations (W.Va. Code §23-4-8), and may not contravene the statute.
Clearly, we do not have all the issues associated with the case, but I wish to posit a simple question; Does this sound like a financially prudent decision? How many man hours, how much time and effort, went into managing this denial? How many meals could the employer and their carrier have reimbursed for the cost of this decision to deny?
Workers’ compensation is by no means perfect, but in the end, it is the smallest of decisions that can have the greatest impact on both our reputation and our financial health.
Think about the optics of this very case. An injured man traveled over two hours at the request of his employer to attend an IME. He was at the doctor’s office two hours, and then had to drive the 2 hours home. The law says a meal is reimbursable. Does that sound unreasonable in this situation?
Or does denying the meal, given the likely cost of defending that decision, sound like a more prudent course?
I have often said that caselaw is usually the result of a stupid decision, and I’m usually not referring to the decision emanating from the court. In Florida, the Castellano case, which was a landmark decision involving attorney’s fees, came about because $800 worth of physical therapy that should have been provided was denied. That case cost the carrier more than $36,000 in plaintiff attorney fees alone. I would expect their defense costs increased that significantly. The late David Depoalo wrote shortly before his death of a case in California where a company denied a $10 bottle of acetaminophen and spent over $1,000 in the IMR process defending that stupid decision. Dilbert is alive and well in our industry it would seem.
This is workers’ comp; there are going to be battles. I would suggest, however, that for both financial and reputational reasons, we should pick those battles wisely. Denying a simple meal during a 6-hour trek is not a reasonable choice. It is, unfortunately, symbolic of an outdated mindset that simply cannot survive in the 21st Century society we serve; yet we continually insist on those actions which bite us in the rear.
We need to really think these “small” decisions through, because they are really symbolic of a much larger issue today within our industry. Don’t sweat the small stuff, because it is usually cheaper to pay for it instead. And in this case, it would have been the right thing to do.