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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.
The Court addressed in a footnote the employer's assertion allowing such reimbursement would lead to meal expense requests for a medical examination even if in a claimant's neighborhood. The Court explained “[t]his 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.” Silverti, n. 15. The Court further states that the “Insurance Commissioner can curtail a claimant’s reasonable (i.e., reimbursable) travel expenses by requiring claims administrators to comply with W.Va. Code St. R. §85-1-15.6 [2009], which provides: ‘The responsible party shall arrange for examination as near as practicable to the claimant’s residence.”Id.
The primary directive from the case is a claim administrator must reimburse for reasonable travel expenses including meals when the claimant travels outside the area in which he or she resides to attend a medical examination or IME. Justice Walker dissented and reserved the right to file a dissenting opinion, so she may provide more insight on reasonable travel expenses.
Article by Dill Battle
If you have questions or need more information, please call or e-mail Dill Battle at 304.340.3823 orhdbattle@spilmanlaw.com
H. Dill Battle III, Esq.
Spilman Thomas & Battle, PLLC
300 Kanawha Boulevard, East
Charleston, WV 25301
304.340.3823 - office
304.340.3801 - fax
hdbattle@spilmanlaw.com