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IN THE SUPREME COURT OF AP PEALS OF WEST VIRGINIA January 2018 Term


### FILED No. 17-0746

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### April 11, 2018 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK CARLOS D. SILVETI, SUPREME COURT OF APPEALS OF WEST VIRGINIA Claimant Below, Petitioner

v. OHIO VALLEY NURSING HOME, INC., Employer Below, Respondent

Appeal from the Workers’ Comp ensation Board of Review Claim No. 2016017643

Appeal No. 2051885 REVERSED AND REMANDED

Submitted: April 4, 2018 Filed: April 11, 2018 William B. Richardson, Jr., Esq. Steven K. Wellman, Esq. Richardson and Campbell Jenkins Fenstermaker, PLLC Parkersburg, West Virginia Huntington, West Virginia Counsel for the Petitioner Counsel for the Respondent

JUSTICE KETCHUM delivered th e 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 or dered by the Insuranc e 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 tr avel expenses include, at a minimum, reasonable expenses for meals, lodging, and mileage.

iJustice Ketchum:

Mr. Carlos Silveti, a claimant for workers’ compensation benefits, was ordered by his claims admi nistrator to attend a medical examination that was onehundred miles away from his home. He sp ent six hours traveling to, attending, and returning from the medical exam ination, during which time he ate one meal. He sought reimbursement from the claims administrato r 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 ove rnight lodging. We are asked whether the claims administrator had the di scretion 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 fi nd that under the plain language of West Virginia Code § 23-4-8, the claims administ rator did not have di scretion to deny Mr. Silveti reimbursement for his meal expense on the ground that his tr avel did not require overnight lodging. We remand this case to the Workers’ Compensation Board of Review for an order consistent with state law.

1I. FACTUAL AND PROCED URAL 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 administra tor’s choosing, to determine whether Mr. Silveti’s current treatment was medically necessary and appropriate for his work-related injury and whether he had achiev ed maximum medical improvement. 1 For unknown reasons, the claims administrator sent Mr. Silveti to an examin er approximately onehundred miles away from Parkersburg, in Fa irmont, 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 exam ination. The claims administrator made this decision despite there being multiple medical examiners located in Parkersburg. 2

1 The claims administrator is author ized under West Virginia Code § 23-4

- 8(a) to “order a claimant of compensation for a personal injury . . . to appear for examination before a medical examiner or examiners[.]”

2 For a list of workers’ compensation medical examiners in West Virginia, along with their locations, s ee West Virginia Offices of the Insurance Commissioner, http://www.wvinsurance.gov/Port als/0/IME%20List%202017_18_4.pdf (last visited March 13, 2018). Under West Virginia Code of State Rule § 85-1-15.6 [2009], claims administrators are required to arrange inde pendent medical examinations “as near as (continued . . .) 2Under West Virginia’s workers’ co mpensation laws, Mr. Silveti, as a claimant, is entitled to be reim bursed 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 timel y submitted a voucher, with his meal receipt attached, to his claims admi nistrator 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 examina tion did not require ov ernight lodging. The claims administrator was aware at the time sh e 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 de cision to the Workers’ Compensation Office of Judges (“ Office of Judges”). The Offi ce 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 appeals the Bo ard’s decision to affirm the denial of his request for meal reimbursement.

practicable to the claimant’s residence.” Mr. Silveti did not contest the claims administrator’s decision to send him to an independent medical examination in Fairmont, as opposed to Parkersburg.

3 See W.Va. Code § 23-4-8 (c ) – (e). We discuss this statute in greater detail in our analysis.

3II. STANDARD OF REVIEW
We are asked whether the Board erred by affirming a prior ruling by the Office of Judges and the clai ms administrator that Mr. S ilveti would not be reimbursed for his meal expense. West Virginia Code § 23-5-15(c) [2005], prov ides our standard of review, in part, as follows: If the decision of the board represents an affirmation of a prior ruling by both the co mmission and the Office of Judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the Supreme Court of Appeals only if the decision is in clear violation of constitutional or stat utory provision, is clearly the result of erroneous conclusions of law, or is based upon the board’s material misstatement or mischaracterization of particular components of the evidentia ry record. Mr. Silveti argues that the Board’s decision is in clear violation of a statutory provision. To the extent this case requires us to interp ret a statutory provision, our standard of review is de novo

. 4

III. ANALYSIS This Court is asked whether the clai ms administrator was required under West Virginia Code § 23-4-8 to reimburse Mr. Silveti for a meal expense he incurred

4 Syl. Pt. 1, Appalachian Power Co. v. St ate Tax. Dep’t of W.Va. , 195 W.Va. 573, 466 S.E.2d 424 (1995) (“Interpreti ng a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.”).

4while attending his medical examination. We st Virginia Code § 23-4-8 provides, in pertinent part, as follows: (a) The Insurance Commissi oner, private carrier or self-insured employer, whichever is applicable, may . . . order a claimant of compensation for a personal injury . . . to appear for examination before a medi cal examiner or examiners selected by the Insurance Commissioner[.]

. . . . (c) Where the claimant is . . . required to undergo a medical examination or examin ations, pursuant to subsection (a) of this section, the party that . . . required the medical examination shall reimburse the cl aimant for . . . reasonable traveling expenses as set forth in subsection (e) of this section and other expenses in connec tion with the examination or examinations. (d) The claimant shall be reimbursed for reasonable traveling expenses as set forth in subsection (e) of this section incurred in connection with medical examinations, appointments and treatments, including appointments with the claimant’s authorized treating physician. (e) The claimant’s traveling expenses include, at a minimum, reimbursement for meals , lodging, and milage. Emphasis added. Mr. Silveti ar gues that the plain language of West Virginia Code § 23

- 4-8 requires that the claims administrator reimburse claimants for reasonable travel expenses, including meals, incu rred in connection with an ordered medical examination, so long as the expenses are reasonable. By contrast, the employer contends th at the claims administrator is not required to reimburse claimants for the reasonabl e cost of meals if his or her travel does not require overnight lodging. It cites to a workers’ compensation regulation, West

5Virginia Code St. R. § 85-1-15.1 [2009], which prov ides: “In determining the reasonableness of [travel expenses incurred in connection with a medical examination], the responsible party shall utilize the travel re gulations for State empl oyees as a guide[.]” The state employee travel regul ations provide, in West Vi rginia Code St. R. § 148-NA

4.3 [2018], that: “Meal expenses are reimbursable for travel requiring overnight lodging.” Thus, the employer asserts that, under the wo rkers’ compensation regulations, a meal expense incurred in connection with a medica l examination is never “reasonable” under West Virginia Code § 23-4-8 unless the claima nt’s travel requires overnight lodging. Finally, the employer argues that the Insurance Commissioner’s interpretation of workers’ compensation laws, as reflected in the workers’ compensation regulations, should be accorded deference. Generally, we agree, but, “an agency’s interpretation of a statute is not entitled to defe rence when it goes beyond the meaning the statute can bear.” 5 As we have held: Interpretations as to the meaning and application of workers’ compensation statutes rendered by the Workers’ Compensation Commissioner, . . . should be accorded deference if such interpretations ar e consistent with the legislation’s plain meaning and ordinary construction

. 6 Furthermore, our law is clear that: “The judi ciary is the final authority on issues of statutory construction, and we are obliged to reject administrative constructions that are

5 Appalachian Power Co. , 195 W.Va. at 588 n.17, 466 S.E.2d at 439 n.17 (internal quotations an d citations omitted).

6 Syl. Pt. 4, in part, State ex rel. Ace Indus. v. Vieweg , 204 W.Va. 525, 574 S.E.2d 176 (1999) (emphasis added).

6contrary to the clear la nguage of a statute.” 7 Therefore, the plain language of West Virginia Code § 23- 4-8 is dispositive as to whether the claims administrator was required to reimburse Mr. Silveti for the meal expens e he incurred in connection with his medical examination. Turning to the plain language of We st Virginia Code § 23-4-8, the Legislature made clear from its use of “shall” in subsections (c) and (d) that the claims administrator does not have discretion to deny reimbursement for reasonable travel expenses. As we have held: “The word ‘s hall,’ . . . should be afforded a mandatory connotation[,]” 8 and “when used in constitutions and statutes, [it] leaves no way open for the substitution of discretion.” 9 The Legislature made it equa lly clear in subsection (e) of West Virginia Code § 23-4-8 that reasonable travel expenses include, at a minimum , meals. Simply put, West Virginia Code § 23-4-8 requires that reasonable travel expenses, including meals, incurred in conn ection with an ordered medical examination be reimbursed. By refusing to reimburse Mr. Silveti for his meal expense, the claims administrator gave him less than what the statute required.

7 Syl. Pt. 5, CNG Transmission Corp. v. Craig , 211 W.Va. 170, 564 S.E.2d 167 (2002).

8 Syl. Pt. 2, in part, Terry v. Sencindiver , 153 W.Va. 651, 171 W.Va. 480 (1969).

9 State ex rel. Boone Cnty Coal Corp. v. Davis , 133 W.Va. 540, 549, 56 S.E.2d 907, 913 (1949) (internal quotations and citations omitted).

7This mandate is in accord with “[o] ne of the basic purposes” of West Virginia’s workers’ co mpensation law, which is to “im pose upon industry the cost of medical expenses incurred in the treatment and rehabilitation of workers who have suffered injuries[,] . . . and one of those costs . . . is payment for transportation expenses necessarily incurred in ob taining medical treatment.” 10 In contravention of this legislative purpose, the claims administrator applied regulati ons, W.Va. Code St. R. § 85

- 1-15.1 and W.Va. Code St. R. § 148-NA-4.3, to shift on to Mr. Silveti the cost of a travel expense incurred in obtaining work-re lated medical treatment. Other states have similar statutes which afford a work ers’ compensation claimant the right to be reimbursed for reas onable travel expenses incurred in connection with an out-of-town medical examination. 11 We have been pointed to no law, in any state, which so severely restricts this right ba sed on the fact that the claimant’s travel did not require overnight lodging. By contrast, in a similar case, Carr v. Indus. Comm’n of

10 Syl. Pt. 2, in part, Ney v. State Workmen’s Compensation Comm’r , 171 W.Va. 13, 297 S.E.2d 212 (1982).

11 See, e.g. , Ariz. Rev. Stat. § 23-1062(c) [2017]; Cal. Lab. Code § 4600(e)(1) [2015]; Idaho Code § 72-433(1) [1997]; Minn. Stat. § 176.155(1) [2009]; 820 ILL. Comp. Stat. 305/12 [200 5]; Ind. Code § 22-3-3-6(b) [2006]; Ky. Rev. Stat. § 342

- 205(2) [2010]; N.M. Stat. § 52-1-51(e) [20 13]; Or. Rev. Stat. § 656-325(b) [2012]. See also , 8 Lex K. Larson & Thomas A. Robinson, Larson’s Workers’ Compensation Laws § 94.03[2][b] (Matthew Bender, 2017) (“It is ev en more clear that transportation expenses are covered when the claimant has to make an out-of-town trip for examination[.]”); Workers’ Compensation Guide § 5.42, Post Employment Medical Examination (2017) (“In addition to the cost of the exam it self, an employee submitting to a requested physical examination is entitled to have expenses for lodging, meals, [etc.] . . . paid in advance or reimbursed by the . . . pa rty requesting the examination.”).

8Ariz. , 12 a workers’ compensation claimant was required to travel approximately onehundred miles each way to obtain medical tr eatment. The court rejected the Industrial Commission’s interpretation of Arizona’s work ers’ compensation law that the claimant was not entitled to reimbursement; it held: “t hat an injured worker who must travel outside the area in which he or she resi des to receive treatment is entitled to reimbursement for travel expenses.” 13 Just like the claimant in Carr , Mr. Silveti was required to travel approximately one-hundred mile s, outside the area in which he resides, for his medical treatment. Therefore, we hold that under the plai n language of West Virginia Code § 23-4-8 [2009], a workers’ compensation cl aimant 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. Mr. Silveti spent six hours traveli ng to, attending, and returning from a medical examination because the claims ad ministrator decided to send him to an examiner one-hundred miles away in Fairmont. In addition to placing this hurdle to Mr. Silveti obtaining his workers’ compensation benefits, th e claims administrator decided that it was not reasonable for him to have eaten a meal during his six hours away from

12 197 Ariz. 164, 3 P.3d 1084 (Ariz. Ct. App. 1999).

13 Id. , 197 Ariz. at 167, 3 P.3d at 1087.

9home because he did not spend the night in Fairmont. In do ing so, the claims administrator violated the clear mandate in West Virginia Co de § 23-4-8 that Mr. Silveti be reimbursed his reasonable travel expenses. We recognize that the Insurance Commissioner may promulgate regulations interpreting West Virginia’s wo rkers’ compensation statutes. To that effect, there is already a regulation in place, West Vi rginia Code St. R. § 148-NA-4.1 limiting reimbursement for meal expenses so that it doe s not exceed the per diem rate established by the federal government for state employee travel. What the Insurance Commissioner may not do is contravene the plain language of a statute he or she is charged with administering through a regulation which take s away a right specifically granted by the Legislature. Because the Insu rance Commissioner’s interpretation of “reasonable” travel expenses in West Virginia C ode St. R. § 85-1-15.1 and West Virginia Code St. R. § 148

- NA-4.3 is contrary to the plai n meaning of West Virginia Co de § 23-4-8, we are obliged to reject it. 14 Therefore, we must remand this case to the Board for an order consistent with state law. 15

14 Syl. Pt. 4, in part, IPI, Inc. v. Burton , 217 W.Va. 181, 617 S.E.2d 531 (2005).

15 Before disposing of this issue, we address a hypothetical raised by the employer. It posits that, under Mr. Silveti’s argument, a workers’ compensation claimant who attends a medical examination in his or her neighborhood and eats a meal on the way back might request reimbursement for his or her meal. The employer’s hypothetical is not implicated by the facts of this case, wher e it is undisputed that the claimant had to travel one-hundred miles from his home to atte nd his medical examination. This case should not be read to require a party who orders a medica l examination of a workers’ compensation claimant to reimburse the claima nt for “travel expenses” when the claimant (continued . . .) 10IV. CONCLUSION
Under the plain language of West Vi rginia Code § 23-4-8, the claims administrator did not have di scretion to deny reimbursement for a meal expense incurred in connection with travel to an ordered medical examina tion on the ground that the claimant’s travel did not require overnight lodging. The Board’s affirmance of the claims administrator’s decision clearly violated the plai n language of the statute. Therefore, we reverse the Board’s decision and remand the case for entry of an order consistent with state law.

did not travel outside the area in which he or she resides to attend the medical examination. The Insurance Commissioner can curtail a claimant’s reasonable ( i.e. , reimbursable) travel expenses by requiring claims administra tors to comply with W.Va. Code St. R. § 85-1-15.6 [2009], which provid es: “The responsible party shall arrange for examination as near as practicable to the claimant’s residence.”

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