CARLOS D. SILVETI, Claimant Below, Petitioner
OHIO VALLEY NURSING HOME, INC., Employer Below, Respondent
Submitted: April 4, 2018
from the Workers' Compensation Board of Review Claim No.
2016017643 Appeal No. 2051885
William B. Richardson, Jr., Esq. Richardson and Campbell
Parkersburg, West Virginia Counsel for the Petitioner
K. Wellman, Esq. Jenkins Fenstermaker, PLLC Huntington, West
Virginia Counsel for the Respondent
JUSTICE KETCHUM delivered the Opinion of the Court. JUSTICE
WALKER dissents and reserves the right to file a dissenting
BY THE COURT
Under the plain language of West Virginia Code § 23-4-8
, a workers' compensation claimant who is ordered
by the Insurance Commissioner, private carrier, or
self-insured employer to attend a medical examination shall
be reimbursed for 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.
Carlos Silveti, a claimant for workers' compensation
benefits, was ordered by his claims administrator to attend a
medical examination that was one-hundred miles away from his
home. He spent six hours traveling to, attending, and
returning from the medical examination, during which time he
ate one meal. He sought reimbursement from the claims
administrator for the meal expense he incurred while
attending his medical examination.
claims administrator denied Mr. Silveti's request for
reimbursement on the ground that his travel did not require
overnight lodging. We are asked whether the claims
administrator had the discretion to deny Mr. Silveti's
request for reimbursement of his meal expense.
Virginia Code § 23-4-8(c) - (e)  provides that a
party who orders a workers' compensation claimant to
attend a medical examination "shall reimburse the
claimant for . . . reasonable traveling expenses[, ]"
which includes, "at a minimum, reimbursement for
meals[.]" We find that under the plain language of West
Virginia Code § 23-4-8, the claims administrator did not
have discretion to deny Mr. Silveti reimbursement for his
meal expense on the ground that his travel did not require
overnight lodging. We remand this case to the Workers'
Compensation Board of Review for an order consistent with
AND PROCEDURAL BACKGROUND
Silveti, a chef at Ohio Valley Nursing Home ("the
employer") in Parkersburg, West Virginia, injured his
left shoulder and left knee when he slipped and fell exiting
a walk-in refrigerator at work. He filed a workers'
compensation claim, which was held compensable for sprain of
the left rotator cuff capsule and sprain of the left knee.
claims administrator ordered Mr. Silveti to attend a medical
examination, at a time and place of the claims
administrator's choosing, to determine whether Mr.
Silveti's current treatment was medically necessary and
appropriate for his work-related injury and whether he had
achieved maximum medical improvement. For unknown reasons,
the claims administrator sent Mr. Silveti to an examiner
approximately one-hundred miles away from Parkersburg, in
Fairmont, West Virginia. This selection required Mr. Silveti
to spend six hours (from 11:00 am to 5:00 pm) traveling to,
attending, and returning from his medical examination. The
claims administrator made this decision despite there being
multiple medical examiners located in
West Virginia's workers' compensation laws, Mr.
Silveti, as a claimant, is entitled to be reimbursed for his
reasonable travel expenses, including meals, incurred in
connection with an ordered medical examination. Mr. Silveti
ate one meal in Bridgeport, West Virginia, approximately
twenty miles away from Fairmont, while attending his medical
examination. He timely submitted a voucher, with his meal
receipt attached, to his claims administrator seeking
reimbursement for his meal expense.
claims administrator decided not to reimburse Mr. Silveti for
his meal expense. She determined that the meal was not a
"reasonable" travel expense because Mr.
Silveti's travel to his medical examination did not
require overnight lodging. The claims administrator was aware
at the time she made this determination that Mr. Silveti had
to spend six hours traveling to, attending, and returning
from his examination.
Silveti appealed the claims administrator's decision to
the Workers' Compensation Office of Judges ("Office
of Judges"). The Office of Judges affirmed the claims
administrator. Upon Mr. Silveti's appeal from the
decision by the Office of Judges, the decision of the Office
of Judges was affirmed by the Workers' Compensation Board
of Review ("the Board"). Mr. Silveti ...