| IN RE: JOHAN M. PETRY | ) | DOCKET NO. 92 0389 |
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| CLAIM NO. N-059349 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Johan M. Petry, by
- Michael F. Pozzi, Attorney
- Employer, TIC Northwest, by
- Randy Evenson, Safety Director
- Department of Labor and Industries, by
- Office of the Attorney General, per
- Loretta A. Vosk, Assistant, and Debbie Goncalves, Paralegal
This is an appeal filed by the claimant, Johan M. Petry, on January 17, 1992 from an order of the Department of Labor and Industries dated January 2, 1992 which suspended the claimant's right to compensation benefits for failure to submit to a medical examination. The Department order is reversed.
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 on June 7, 1993 to a Proposed Decision and Order issued on April 21, 1993 in which the order of the Department dated January 2, 1992 was affirmed.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed.
Mr. Petry admits that he did not attend the October 25, 1991 medical examination in Seattle, Washington. He contends that he should not have had his benefits suspended because he was not asked to explain why he did not attend the examination as required by Department rule. [2] Mr. Petry also contends that he had good cause for not attending since he was not given prior notice of the examination and it was not reasonably convenient to his residence, at that time, in North Carolina.(1) The January 2, 1992 Department order stated, in part:
WHEREAS, a medical examination was scheduled for October 25, 1991, to obtain additional medical information concerning the further paying of benefits and the claimant failed to attend;
THEREFORE, it is hereby ordered that your right to further compensation be suspended effective January 2, 1992, for failure to submit to a medical examination. This action is taken in accordance with RCW 51.32.110. . . .
When an injured worker's benefits are suspended, the worker and his or her family can suffer extreme financial stress. Suspensions may also prevent an injured worker from receiving necessary medical treatment, thereby endangering the worker's health. Thus, orders suspending benefits should not be issued without a careful review of the facts and without giving the worker an opportunity to address the alleged noncooperation. In 1990, the Department of Labor and Industries enacted WAC 296-14-410 which addresses these concerns and which states, in part:
Prior to the issuance of an order reducing, suspending or denying benefits, the department or self-insurer must request, in writing, from the worker or worker's representative the reason for the refusal, obstruction, delay or noncooperation.
The record does not show that the Department asked Mr. Petry to explain in writing why he did not attend the October 25, 1991 examination. If [3] it had, Mr. Petry could have stated that he did not get the notice of examination before the date of examination, that he was living in North Carolina rather than in Idaho, and that he could not travel by air. The Department sent him a letter dated October 8, 1991 in which it stated that it would suspend his benefits if he did not attend the October 25th examination. This letter does not meet the requirements of the Department's rule of written requests for explanations of apparent noncooperation prior to suspensions, since it was sent before the examination. Furthermore, Mr. Petry testified that he did not get the October 8, 1991 letter. The Department did not comply with WAC 296-14-410 since Mr. Petry was not given the opportunity to explain why he did not attend the October 25, 1991 examination prior to issuing the suspension order. As a result, the January 2, 1992 order must be reversed.
Since the Department has already decided to suspend Mr. Petry's right to compensation for not attending the medical examination, we will not simply remand this matter for the purpose of making the Department request, in writing, an explanation for Mr. Petry's failure to attend the October 25, 1991 examination. Both parties presented evidence on the issue of whether Mr. Petry's failure to attend the medical examination constitutes a failure to cooperate or, in the alternative, whether he had good cause for not submitting to the examination. Piecemeal litigation should be avoided in industrial insurance appeals. Lenk v. Dep't of Labor & Indus., 3 Wn. App. 977 (1970), and Beels v. Dep't of Labor & Indus., 178 Wash. 301 (1934). Therefore, we will also determine whether the Department was correct in deciding that Mr. Petry failed to cooperate. [4]
RCW 51.32.110 prohibits a suspension of benefits if a worker has good cause for not submitting to an examination. Mr. Petry explained that he did not get notice of the October 25, 1991 examination set in Seattle, Washington. Exhibit No. 1. The notice was sent to Lewiston, Idaho, although Mr. Petry moved to North Carolina that same month. Apparently, the Department was aware of Mr. Petry's North Carolina connection. In a September 28, 1991 letter to Ron McClelland of the Department, Mr. Petry advised that he was hitchhiking back to "N.C." and that he could be contacted there. Exhibit No. 5. Several months earlier, in a letter dated April 27, 1991, Mr. Petry had given a Winston Salem, North Carolina address as his winter residence. Exhibit No. 7. The Department presented testimony that notices sent to Idaho had not been returned so they assumed that Department communications were being received by Mr. Petry. However, the true question is whether Mr. Petry received notice of the examination prior to its scheduled date of October 25, 1991. We find it probable that Mr. Petry did not receive prior notice of the examination in light of the claimant's uncontroverted, direct testimony that he was hitchhiking to North Carolina in October 1991. He may have been generally aware that the Department intended to set an examination in Seattle, Washington for him, but the record does not show he was advised of a specific day, time, and place. It obviously follows that Mr. Petry had good cause for not attending an examination that he did not know had been scheduled.
RCW 51.32.110 requires that a medical examination be set at a place reasonably convenient for the worker. It is possible that under some circumstances Seattle, Washington would be found reasonably convenient to Lewiston, Idaho. However, it is difficult to find Seattle reasonably [5] convenient to North Carolina, especially based on this record, indicating that Mr. Petry does not travel by airplane. We must conclude Mr. Petry would have had good cause for not attending the Seattle, Washington examination location as he was in North Carolina even if he had received prior, sufficient notice.
In conclusion, the Department did not follow its rule and allow the claimant to explain why he did not attend the October 25, 1991 medical examination prior to issuing the suspension order. Furthermore, Mr. Petry had good cause for not attending the examination due to location and lack of notice. Thus, the Department should not have suspended his right to compensation between January 2, 1992 and June 23, 1992. We, therefore, enter the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. On March 18, 1991, the claimant filed an application for benefits with the Department of Labor and Industries for an injury he incurred on March 9, 1991 while working for TIC Northwest. On January 2, 1992, the Department issued an order suspending his right to further compensation for failure to submit to a medical examination. The claimant filed an appeal with the Board of Industrial Insurance Appeals on January 17, 1992. The Board issued an order granting the appeal on February 6, 1992 and assigned Docket No. 92 0389.
2. The Department of Labor and Industries scheduled a medical examination for Mr. Petry on October 25, 1991 in Seattle, Washington. On September 27, 1991, it mailed a notice of this examination to the claimant at an address in Lewiston, Idaho. Prior to October 25, 1991, Mr. Petry moved his residence from Lewiston, Idaho to Winston Salem, North Carolina. He travelled to North Carolina during October 1991 by hitchhiking. Mr. Petry did not receive the September 27, 1991 notice or other specific notice of the October 25, 1991 medical examination before that date. [6]
3. Prior to issuing its January 2, 1992 order suspending the claimant's right to compensation, the Department of Labor and Industries did not write to Mr. Petry and ask him why he had not attended the October 25, 1991 medical examination.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter to this appeal.
- The Department of Labor and Industries did not comply with WAC 296-14-410 which requires that the Department request, in writing, why a worker did not cooperate prior to issuing an order reducing, suspending, or denying benefits.
- Pursuant to RCW 51.32.110, Mr. Petry had good cause for not submitting to the October 25, 1991 medical examination in Seattle, Washington, and his right to compensation should not have been suspended.
- The order of the Department of Labor and Industries dated January 2, 1992 which suspended the claimant's right to further compensation effective January 2, 1992 for failure to submit to a medical examination is incorrect and is hereby reversed. The claim is remanded to the Department to issue an order reinstating the claimant's right to compensation effective January 2, 1992 and to provide any other benefits to which he may have been entitled under the Industrial Insurance Act from January 2, 1992, forward.
It is so ORDERED.
Dated this 21st day of July, 1993.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
S. FREDERICK FELLER Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
ROBERT L. McCALLISTER Member
(1) It should be noted that, while this appeal was before the Board, the Department lifted the suspension of benefits effective June 23, 1992 after the claimant agreed to attend a medical examination.