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Workers’
Compensation Board
OPINION ENTERED: September 15, 2017
CLAIM NO. 201394080
WALMART STORES INC. PETITIONER
VS.
APPEAL
FROM HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE
DEBRA JANSEN
AND HON JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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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.
COUNSEL
FOR PETITIONER:
HON JO ALICE VAN NAGELL
300 E MAIN ST #400
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON R JOHNSON POWELL
1795 ALYSHEBA WAY #6101
LEXINGTON, KY 40509
ADMINISTRATIVE
LAW JUDGE:
HON JEANIE OWEN MILLER
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
