BOR
Appeal No. 2051462 (Claim No. 2014016626)
MEMORANDUM DECISION
Petitioner
Security Networks, LLC, by T. Jonathan Cook, its attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. David R. Barker, by Reginald D.
Henry, his attorney, filed a timely response.
The
issue presented in the instant appeal is the compensability
of Mr. Barker's claim for workers' compensation
benefits. On September 1, 2015, the claims administrator
rejected the claim. On July 7, 2016, The Workers'
Compensation Office of Judges reversed the claims
administrator's Order and reinstated the claim. This
appeal arises from the Board of Review's Final Order
dated December 20, 2016, in which the Board affirmed the
decision of the Office of Judges. The Court has carefully
reviewed the records, written arguments, and appendices
contained in the briefs, and the case is mature for
consideration.
This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
is appropriate under Rule 21 of the Rules of Appellate
Procedure.
On
November 13, 2013, Mr. Barker seriously injured his shoulder
and knee while working for Security Networks, LLC. On the
same day, Maria Carter, a Human Resources Assistant for the
employer, signed and completed a "treatment
authorization" form that provided Mr. Barker's name,
social security number, type of injury, body parts injured,
and listed the date of injury as November 13, 2013. The
"treatment authorization" form was directed to some
unidentified medical provider and stated that: "This
will serve as our request for you to render the initial
treatment for the above injured employee." The
"treatment authorization" also stated, "our
workers' compensation insurance is provided through The
Tower Group/CastlePoint National Insurance Company." The
"treatment authorization" advised, however:
"Please note that this letter does not confirm that the
injury or condition is covered by workers' compensation
insurance. That determination will be made when a CastlePoint
claims representative completes an investigation."
An
e-mail dated November 14, 2013, from Security Networks, LLC
representative Carrie Weisenfield, discussed short-term
disability insurance and inquired how long the claimant would
be off from work due to his injuries. Mr. Barker submitted
into evidence a check stub, in the amount of $730.11, from
Tower Select Insurance Company which lists his claim number
and references dates of service from September 1, 2014,
through September 17, 2014. Mr. Barker also submitted a check
stub from AmTrust North America, Inc., in the amount of
$741.5, for temporary total disability benefits for dates of
service July 23, 2015, through July 29, 2015.
On
September 1, 2015, AmTrust North America, Inc., the claims
administrator, issued an Order rejecting Mr. Barker's
claim. The Order stated that AmTrust had not received an
Employee's and Physician's Report of injury form
(WC-1), as required by West Virginia Code §§
23-4-1a and 23-4-15. The claims administrator concluded that
it did not have any jurisdiction or authority to make any
rulings regarding the payment or denial of workers'
compensation benefits. The Order stated that, "after
further investigation, any and all Orders and payment of
benefits in the claim were clearly erroneous and the result
of a mistake and/or clerical error." Mr. Barker
protested.
On July
7, 2016, the Office of Judges found that the claims
administrator erred in finding that Mr. Barker's
application for workers' compensation benefits was
untimely filed. The Office of Judges reasoned that Mr. Barker
fulfilled his statutory duty to provide his employer with
notice that he sustained an injury on November 13, 2013,
sufficient to generate an initial written notice,
"treatment authorization." The Office of Judges
found that the claims administrator determined Mr.
Barker's workers' compensation claim to be covered
without the necessity of reviewing or considering an
Employee's and Physician's Report of injury form
(WC-1). The Office of Judges noted that the e-mail dated
January 10, 2014, from Carrie Weisenfeld, referenced the
Family and Medical Leave Act paperwork and claim forms for
short term disability, but made no mention that Mr.
Barker's application was deficient because of the absence
of a completed Employee's and Physician's Report of
injury form (WC-1). Ms. Weisenfeld's e-mail indicated
that Mr. Barker's claim was approved when she stated,
"I also sent the bill to Coadvantage so they can
coordinate payment with the workers' comp carrier and pay
the bill." The Office of Judges found that the payment
of benefit checks issued by Tower/AmTrust confirms that Mr.
Barker's workers' compensation claim was ruled
compensable based on the processes utilized by CastlePoint,
Tower and AmTrust.
The
Office of Judges concluded that Mr. Barker's failure to
file an Employee's and Physician's Report of injury
form (WC-1) is excused in this case. The Office of Judges
found that there is no evidence that Mr. Barker was provided
a form by his employer. Instead, the claims administrator
ruled on Mr. Barker's verbal claim under its own
processes, which did not include the consideration of an
Employee's and Physician's Report of injury form
(WC-1). The Office of Judges concluded that Mr. Barker should
not be punished due to the claims administrator's lack of
awareness of proper West Virginia claim procedure and the
actions that they have alternatively taken absent such
awareness. The Office of Judges stated that the claims
administrator obviously accepted compensability of the claim
and managed the claim as valid, with the payment of both
medical and indemnity benefits, for approximately twenty-two
months. The Office of Judges found that the claims
administrator may not create uncertainties in a record and
then upon achieving awareness of proper procedure two years
later seek to benefit from their shortcomings. Relying upon
Vaughan v. West Virginia Office of the Insurance
Commissioner, No. 35746 (May 13, 2011) (memorandum
decision), the Office of Judges stated that while it may be
the duty of the claimant to file an Employee's and
Physician's Report of injury form (WC-1), it is not the
duty of a claimant to supply and provide the Employee's
and Physician's Report of injury form (WC-1). The Office
of Judges concluded that Mr. Barker's application for
workers' compensation benefits was timely filed and held
that it is not the duty of a claimant to cure insufficiencies
in claim processing on part of the claims administrator.
The
Board of Review adopted the findings of fact and conclusions
of law of the Office of Judges and affirmed its Order on
December 20, 2016. The Board of Review reasoned that the
employer and the claims administrator were made aware of Mr.
Barker's injury within the six-month statutory period
allowed for filing a claim. The employer and the claims
administrator began managing the claim and benefits were
paid. The Board concluded that the claim was timely filed. We
agree with the reasoning and conclusions of the Office of
Judges as affirmed by the Board of Review.
For the
foregoing reasons, we find that the decision of the Board of
Review is not in clear violation of any constitutional or
statutory provision, nor is it clearly the result of
erroneous conclusions of law, nor is it based upon a material
misstatement or mischaracterization of the evidentiary
record. Therefore, the decision of the Board of Review is
affirmed.
Affirmed.
CONCURRED IN BY: Chief Justice Allen H. Loughry II, Justice
Robin J. Davis, Justice Margaret L. Workman, Justice Menis ...