| IN RE: JOHN V. MEYER | ) | DOCKET NO. 03 14702 |
| ) | ||
| CLAIM NO. T-881938 | ) | DECISION AND ORDER |
| ) |
APPEARANCES:
Casey & Casey, P.S., per
Gerald L. Casey
Self-Insured Employer, Manke Lumber Company, Inc., by
Dennis G. Moynihan and James L. Groves, Lay
Representatives
The claimant, John V. Meyer, filed an appeal with the Board of
Industrial Insurance Appeals on
DECISION
Pursuant to RCW 51.52.104 and RCW
51.52.106, this matter is before the Board for review and decision on a timely
Petition for Review filed by the claimant to a Proposed
Decision and Order issued on
The
Board has reviewed the evidentiary rulings in the record of proceedings and
finds that no prejudicial error was committed. The rulings are affirmed.
The issue presented by this appeal
is whether the claimant is entitled to a penalty for the employer's alleged
failure to provide necessary and proper treatment. We hold that he was not, and have granted
review for the limited purpose of correcting a clerical error found on page 1,
line 26 of the Proposed Decision and Order. The language on line 26 indicated that the Department order of
We
agree with the summary of evidence as presented in the Proposed Decision and
Order. Specifically, Mr. Meyer's
attending physician, Donna E. Moore, M.D., was persuasive with respect to her
description of the difficulty she had in obtaining authorization of medical
treatment that she regarded as reasonable and necessary for Mr. Meyer. The insistence by the self-insured employer's
administrator for increasingly lengthy and complex documentation had the
practical [2] effect of denying
treatment altogether. It is perhaps
unfortunate that there is no provision in the law for a penalty in the event of
an unreasonable delay or denial of appropriate medical treatment. However, we do not believe that medical
treatment is a benefit within the meaning of RCW 51.48.017. That section states,
If a self-insurer
unreasonably delays or refuses to pay benefits as they become due there shall
be paid by the self-insurer upon order of the director an additional amount
equal to five hundred dollars or twenty‑five percent of the amount
then due, whichever is greater, which shall accrue for the benefit of the
claimant and shall be paid to him with the benefits which may be assessed under
this title. The director shall issue an
order determining whether there was an unreasonable delay or refusal to pay benefits
within thirty days upon the request of the claimant. Such an order shall conform to the
requirements of RCW 51.52.050.
The language of the above section
implies a financial payment that inures to the advantage of the claimant. Although it is possible to determine the
dollar value of medical treatment by reference to the Department fee schedule,
it is unreasonable to conclude that medical benefits were being contemplated by
the Legislature when it passed this section. The language, "the amount then due," strongly suggests time
loss compensation or permanent partial disability award; something in money
that is payable to the claimant. On
balance, we have to agree with our industrial appeals judge that an employer's
denial of medical treatment is outside the reach of RCW 51.48.017 as it
relates to assessing a penalty against the employer for failing to authorize
treatment.
We
remind the parties that recourse is available when medical treatment is
denied. RCW 51.32.055(6) states,
Where a dispute arises
from the handling of any claim before the condition of the injured worker
becomes fixed, the worker, employer, or self-insurer may request the department
to resolve the dispute or the director may initiate an inquiry on his or her
own motion. In these cases, the
department shall proceed as provided in this section and an order shall issue
in accordance with RCW 51.52.050.
Additional
help may be found in RCW 51.32.190(6). This section states,
The director, upon his or
her own initiative, may make such inquiry as circumstances require or is
necessary to protect the rights of all the parties and he or she may enact
rules and regulations providing for procedures to ensure fair and prompt
handling by self-insurers of the claims of injured workers and beneficiaries. [3]
In particularly egregious
situations, a worker may petition the Director to de-certify the self‑insured
employer under RCW 51.14.080 and RCW 51.14.090. Finally, a worker may appeal the denial of treatment to the Board of
Industrial Insurance Appeals, arguing that his or her industrially related
condition had not reached maximum medical improvement.
After
consideration of the Proposed Decision and Order and the Petition for Review
filed thereto, and a careful review of the entire record before us, we make the
following:
FINDINGS OF FACT
1. On
On
2. On
3. The
4. As of
CONCLUSIONS OF LAW
1. The
Board of Industrial Insurance Appeals has jurisdiction over the parties to and
the subject matter of this appeal.
2. RCW
51.48.017 does not provide for a penalty for a self-insured employer's failure
to provide or pay for necessary and proper medical treatment. [4]
3. The
Department of Labor and Industries' order dated
It is so ORDERED.
Dated this
16th day of June, 2004.
BOARD
OF INDUSTRIAL INSURANCE APPEALS
/s/________________________________________
THOMAS
E. EGAN Chairperson
/s/________________________________________
FRANK
E. FENNERTY, JR. Member
/s/________________________________________
CALHOUN