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Silveti v. Ohio Valley Nursing Home, Inc.

Supreme Court of West Virginia

April 11, 2018

CARLOS D. SILVETI, Claimant Below, Petitioner
v.
OHIO VALLEY NURSING HOME, INC., Employer Below, Respondent

          Submitted: April 4, 2018

          Appeal 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

          Steven 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 opinion.

         SYLLABUS BY THE COURT

         1. Under the plain language of West Virginia Code § 23-4-8 [2009], 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.

          KETCHUM, JUSTICE.

         Mr. 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.

         The 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.

         West Virginia Code § 23-4-8(c) - (e) [2009] 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 state law.

         I.

         FACTUAL AND PROCEDURAL BACKGROUND

         Mr. 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.

         A 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.[1] 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 Parkersburg.[2]

         Under 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.[3] 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.

         The 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.

         Mr. 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 ...


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