January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  September 15, 2017



CLAIM NO. 201394080



WALMART STORES INC.                            PETITIONER


















                       * * * * * *



BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 



RECHTER, Member.  Walmart Stores, Inc.(“Walmart”) appeals from the February 14, 2017 Opinion, Award and Order, and the March 22, 2017 Order on Petition for Reconsideration rendered by Hon. Jeanie Owen Miller, Administrative Law Judge (“ALJ”).  The ALJ awarded Debra Jansen (“Jansen”) permanent total disability benefits and medical benefits for a lumbar spine injury and psychological injury.  The sole issue on appeal is whether the ALJ erred in determining Jansen’s travel expenses are reasonable. 

     Jansen filed a Form 101 alleging she suffered a lumbar spine injury while unloading a truck in 2013 while working for Walmart.  She underwent decompression and fusion surgery, which caused a cerebrospinal fluid leak.  This leak has caused the majority of her problems since 2013.  Jansen has undergone two surgical attempts to repair the leak, both of which have been unsuccessful.  Eventually she was referred to specialist Dr. Kevin Stevenson in Macon, Georgia.  Meanwhile, Jansen moved to Florida.  She continues to treat with Dr. Stevenson, who has performed three procedures.

     Dr. Stevenson’s office is located 767 miles from Jansen’s home.  She submitted receipts for travel reimbursements totaling $2,615.53.  These receipts represented travel expenses for three trips to Macon, Georgia for appointments with Dr. Stevenson.  On September 14, 2016, Walmart filed a medical fee dispute challenging the reasonableness of these travel reimbursement requests. 

          The medical proof is not germane to the issue on appeal and will not be discussed further.  At the final hearing, Jansen testified regarding the information she was provided regarding the reimbursement of travel expenses:

When they changed my adjuster it just added more stress because I would ask, well, what are y’all reimbursing me for?  What are you not?  We don’t have to give you that information.

I’m like, ma’am – Sandra Day I think was her name – I have to have that information.  I have to file my taxes.  I need that information.  I have been asking you and asking.  I need to know what y’all are deducting and what you are not deducting so that what you are not paying me for I can claim on my taxes as medical expenses and stuff.

Q.   Well let me ask you a couple of questions about that.  When you had the first adjuster who – Melissa I think is her name.

A.   Yeah, Melissa Dugger.

Q.   She paid for your medications, your treatment, your extra expenses like hotels and restaurants and all that?

A.   Yes, sir. She told me – I – when I first – when they first said I could go see Dr. Stevenson and he agreed to see me and everything, I asked her, well, how do I do this and she said – told me you stay at the same hotels you would if you were going on – to see a doctor for yourself.  You eat at the same restaurants.  You would go keep track of your mileage.  If you fly send me copies of your airline tickets.  If you drive take your mileage.  Send me your mileage.  You will fill out these forms because I asked her.  I said do I pay for all this stuff or do you all tell me where to go, what hotel and flight or whatever and you make the arrangements?  And she said no.  You pay for it.  You fill out this form that she sent me and they will reimburse you.  It was – I would do that and it was always reimbursed.

Q.   And it worked just fine with her, and then when they changed the adjusters to your second adjuster and –

A.   Correct.

Q.   -- just we’ve got a third adjuster now.  But when they changed to the second adjuster, how did that change?

A.   Uh, first the home health care wasn’t paid for.  Uh, then the pet care wasn’t paid for.  Uh – then the hotels weren’t being paid for completely.

Like if the bill was – if I was there for three days and the bill was $340.00 then I never got a breakdown how much she was paying for what so I really can’t answer that question.  I can only answer it by if I turn in an invoice, just a number off the top of my head, I have them all, but if I turned one in that was $2,000.00 I would get a deposit in my bank account for $854.00

I don’t know what they paid on what because I would never get an explanation.  I asked.  I sent e-mails, which I have all the e-mails.

Q.   Let me ask you.

A.   But I would never get an explanation.

Walmart did not present any evidence to rebut Jansen’s testimony.

     In considering the travel reimbursement request, the ALJ determined:

With respect to the reimbursements, the plaintiff’s testimony was not disputed by the defendant.  The plaintiff was told she would have to pay for her travel expenses and then be reimbursed for them.  While that is not a correct interpretation of the regulation, it was the information upon which the plaintiff relied.  If the defendant has a reimbursement “schedule” they must inform Ms. Jansen’s of same.  Then Ms. Jansen could choose whether she wanted to spend additional monies to make her trip more comfortable.  The other option would be for the defendant to advance the payment for all the expenses.  Given the circumstances, I find that Ms. Jansen’s out-of-pocket expenses were reasonable under the regulation, and the defendant shall reimburse her for those out-of-pocket expenses.  In the future, the defendant must make their position clear – so that Ms. Jansen can determine if she must litigate the reasonableness of the reimbursements.  Hopefully an agreement may be reached to eliminate the need for a litigated contest.

     Walmart petitioned for reconsideration, making the same arguments it now makes on appeal.  The ALJ denied the petition.

          On appeal, Walmart argues it is not responsible for travel expenses in excess of those permitted by 200 KAR 2:006 §7.  It also argues the ALJ’s determination that Jansen’s travel expenses are reasonable is patently erroneous.

     KRS 342.020(1) requires an employer to pay for the cure and relief from the effects of a work-related injury, “as may reasonably be required at the time of the injury and thereafter during disability.”  This provision encompasses the reimbursement of reasonable travel expenses.  C&L Constr. v. Cannon, 884 S.W.2d 647 (Ky. 1994).  Walmart argues travel reimbursement is not compensable if it is in excess of state travel reimbursement guidelines found at 200 KAR 2:006 §7. Regarding the reimbursement of travel expenses relating to an independent medical evaluation, KRS 342.205(2) provides for reimbursement in accordance with “state travel administrative regulations and standards promulgated and established pursuant to KRS Chapter 45.”  There is no such language contained in KRS 342.020, and we are not at liberty to interpret the statute contrary to the plain language.  Revenue Cabinet v. O’Daniel, 153 S.W.3d 815 (Ky. 2005).  Therefore, Walmart’s assertion is without merit.

          Walmart next argues it is patently erroneous to find Jansen’s travel expenses reasonable.  It emphasizes certain expenses, such as overnight hotel stays for $231.86 per night and meal expenses of $80.86, $80.00, and $34.67.  We disagree.  

     Whether an expense is “reasonable” is a question of fact, which lies within the sound discretion of the ALJ.  Dravo Lime Co. v. Eakins, 156 S.W.3d 283, 288 (Ky. 2005).  Here, the ALJ took into consideration the totality of the circumstances surrounding Jansen’s travel to treat with Dr. Stevenson, including the fact Walmart did not inform her of any limitations or reimbursement schedule it expected her to follow.  The ALJ’s conclusions are supported by Jansen’s testimony, and Walmart submitted no proof to rebut or refute this testimony. 

     This Board is not at liberty to substitute our judgment or appraisal of the proof for that of the ALJ.  Because the ALJ set forth her reasoning, and cited specific proof in the record, we conclude it is supported by substantial evidence.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).  Therefore, we cannot conclude the ALJ’s decision is so unreasonable as a matter of law to require reversal.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). 

     Accordingly, the February 14, 2017 Opinion, Award and Order, and the March 22, 2017 Order on Petition for Reconsideration rendered by Hon. Jeanie Owen Miller, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.






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