| IN RE: ANTHONY LAJCIN | ) | DOCKET NO. 99 12440 |
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| CLAIM NO. M-671006 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Anthony Lajcin, by
- Small, Snell, Weiss & Comfort, P.S., per
- Richard E. Weiss and David W. Lauman
- Employer, Burnham Service Co., Corp.,
- None
- Department of Labor and Industries, by
- The Office of the Attorney General, per
- Kay A. Germiat, Assistant
The claimant, Anthony Lajcin, filed an appeal with the Board of Industrial Insurance Appeals on March 5, 1999, from an order of the Department of Labor and Industries dated February 11, 1999. That order corrected and superseded the Department's January 4, 1999 order, which in turn corrected and superseded an earlier order of the Department dated December 28, 1998. The February 11, 1999 Department order directed that Mr. Lajcin be paid an award for permanent total disability benefits effective December 23, 1993, pursuant to an order of the Board of Industrial Insurance Appeals dated December 2, 1998. The Board order declared Mr. Lajcin a permanently and totally disabled worker effective December 23, 1993. The February 11, 1999 Department order also stated that medical bills on behalf of Mr. Lajcin had been paid after the effective date of the award for permanent total disability benefits, December 23, 1993, and are now not payable. The Department directed the recoupment of all disbursements paid on behalf of Mr. Lajcin for medical treatment rendered after December 23, 1993, in the amount of $2,469.55. The Department determined this amount to be deducted from Mr. Lajcin's award for permanent total disability benefits until recovered. The Department further found that any payment for medical treatment after December 23, 1993, was the responsibility of the worker. The order also stated that the [2] amount of money recouped for medical payments pursuant to the Department order of January 4, 1999, in the amount of $2,770.57 had already been deducted from the worker's permanent total disability benefit and the additional award for total permanent disability benefit in the amount of $301.02 would be repaid the worker. 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 Mr. Lajcin to a Proposed Decision and Order issued on October 21, 1999, in which the order of the Department of Labor and Industries dated February 11, 1999, was affirmed.
As noted by the industrial appeals judge, this matter is before the Board based on stipulated facts as provided by the parties on August 10, 1999. We have reviewed that stipulation as well as all of the briefs and authorities cited by the parties in this matter. We concur with the Proposed Decision and Order that the issue is whether the Department of Labor and Industries is authorized to recoup payments for proper and necessary medical treatment during a period for which Mr. Lajcin later received payments as a permanently totally disabled worker.
A clear understanding of the events and the order in which they occurred in this case is essential to a resolution of this appeal. We offer the following summary of the key dates and events as extracted from the parties' stipulation.
December 27, 1993 Department of Labor and Industries terminated time loss compensation effective 12/23/93. The Department directed the claim to remain open for further action. (Emphasis added.)
January 5, 1994 Mr. Lajcin protested (timely) the 12/27/93 order.
April 11, 1994 The Department of Labor and Industries held the 12/27/93 order in abeyance.
May 13, 1997 The Department affirmed the 12/27/93 order. [3]
June 6, 1997 The Department closed Mr. Lajcin's claim with a Category 2 award for lumbosacral impairments.
July 7, 1997 Mr. Lajcin appealed the Department orders of 5/13/97 and 6/6/97.
September 24, 1998 A Proposed Decision and Order concluded that the Department orders of 5/13/97 and 6/6/97 were incorrect. The Proposed Decision and Order concluded that Mr. Lajcin was permanently totally disabled effective 12/23/93, as a proximate result of his 8/1/91 industrial injury.
November 13, 1998 The Department submitted a Petition for Review from the 9/24/98 Proposed Decision and Order.
December 2, 1998 The Board denied the Department's Petition for Review and adopted the Proposed Decision and Order as the Board's final order.
December 18, 1998 The Department issued an order awarding Mr. Lajcin permanent total disability benefits effective 12/23/93 (pursuant to the order of the Board of Industrial Insurance Appeals).
December 28, 1998 The Department issued an order confirming the award of permanent total disability benefits and further attempting to recoup medical payments paid on Mr. Lajcin's claim subsequent to the date of permanent total disability benefits 12/23/93. The Department initially attempted to recoup $2,770. 57.
February 11, 1999 After intervening orders modifying and correcting the 12/28/98 order the Department issued a revised recoupment order reducing the amount of medical payments recouped to $2,469.55 and directing that Mr. Lajcin be reimbursed $301.02.
It appears evident from the factual stipulation that the Department of Labor and Industries was preparing to close Mr. Lajcin's claim by terminating time loss benefits in December of 1993. Mr. Lajcin protested this order. After a lengthy delay, the Department issued a closing order in June of 1997. That order was eventually appealed to this Board which resulted in a determination that Mr. Lajcin was a permanently and totally disabled worker. Thus, Mr. Lajcin's claim was administratively open at the Department from December 27, 1993 to the closing order in June 1997. During this time some medical bills in connection with this claim were submitted by providers to the Department. Exhibit No. 2 is a listing of these bills and payments. Apparently, the Department [4] determined at the time that these bills were payable for necessary and proper medical treatment for the allowable conditions of Mr. Lajcin's claim.
Later, as a result of an appeal to the Board, we determined that Mr. Lajcin was entitled to benefits as a permanently totally disabled worker. Mr. Lajcin successfully demonstrated that he was entitled to these benefits starting December 23, 1993. Pursuant to the order of the Board, the Department authorized benefits for permanent total disability as of December 23, 1993. This put the Department in an unusual situation as Mr. Lajcin ultimately received two kinds of mutually exclusive payments during the time period after December 23, 1993. The Department had already paid for proper and necessary medical treatment and the Department was required to pay permanent total disability payments from December 23, 1993, forward.
RCW 51.36.010 defines the extent and duration of proper and necessary medical treatment under the Industrial Insurance Act. Once a worker is determined to be permanently totally disabled, payment for proper and necessary medical treatment is terminated. In its February 11, 1999 order, the Department determined that medical bills previously paid after December 23, 1993 "are now not payable pursuant to RCW 51.36.010" and ordered $2,469.55 to be recouped from Mr. Lajcin's award for permanent total disability benefit.
Although we agree with the Department's contention that it has no authority under RCW 51.36.010 to pay for medical bills incurred after an injured worker is found to be medically fixed and stable, we disagree with the Department's interpretation of the operative date in this case.
First of all, the Department did not make a determination that Mr. Lajcin's medical condition was fixed and stable until June 6, 1997, when it issued its order closing the claim with a permanent partial disability award equal to Category 2 for lumbosacral impairments. The Department appropriately paid no more medical bills after the closing order. This is in consonance with the [5] clear unambiguous requirement of RCW 51.36.010 which provides that the duration and extent of medical payments:
In the case of permanent partial disability, not to extend beyond the date when compensation shall be awarded . . .
[I]n case of a permanent partial disability not to extend beyond the date on which a lump sum settlement is made with him or her or he or she is placed upon the permanent pension roll . . .
(Emphasis added.)
The statute is clear and subject to little, if any, interpretation as applied to the facts of this case. The Department, in the absence of a prior determination that Mr. Lajcin's medical condition was medically fixed and stable, was authorized to pay for medical treatment until the date when permanent partial disability compensation was awarded (Order and Notice of June 6, 1997) or, until Mr. Lajcin's status was changed to permanently totally disabled worker and he was placed on the "pension rolls" (Order and Notice of December 18, 1998).
Thus, Mr. Lajcin was entitled to medical benefits until his claim was closed with a permanent partial disability award June 6, 1997. The fact that Mr. Lajcin ultimately was found to be permanently totally disabled effective December 23, 1993, is not determinative of the Department's authority to pay for or the claimant's entitlement to medical benefits, the extent and duration of which are determined by the date that Mr. Lajcin's status was changed and he was placed on the "pension rolls" administratively (by Order and Notice of February 11, 1999). The bills for medical treatment were properly payable by the Department and, accordingly, are not subject to be recouped.
We disagree, also, that RCW 51.32.240(3) authorizes the Department to recoup medical benefit payments under the facts of this case. The statute provides, in relevant part:
Whenever any payment of benefits under this title has been made . . . pursuant to an erroneous adjudication, the recipient thereof shall repay it and recoupment may be made from any future payments due to the [6] recipient on any claim with the state fund or self-insurer, as the case may be.
(Emphasis added.) The Department concluded that since Mr. Lajcin was permanently totally disabled as of December 23, 1993, he could not have been in need of further proper and necessary medical treatment from that date forward. Thus it was "erroneous" within the meaning of RCW 51.32.240(3) to pay medical benefits when Mr. Lajcin was permanently totally disabled (and therefore presumptively medically fixed and stable).
We understand the Department's position but we disagree with its result. First of all, if RCW 51.32.240(3) is applicable, it directs that in the event of an "erroneous adjudication" that recoupment shall be made against the "recipient thereof." Exhibit No. 2. The payments for medical treatment were made to the medical care providers and not to Mr. Lajcin. Mr. Lajcin may have received the benefit of these payments, but he is certainly not "the recipient" of the money for purposes of recoupment. The statute is clear that recoupment may be had against the recipient from any future payments due, however, if the Department recovers the monies paid for medical treatment it would be collecting money that Mr. Lajcin has never had in his possession.
This situation is distinguishable from other situations where the Board majority has applied RCW 51.32.240(3). In in re Esther Rodriguez, BIIA Dec., 91 5594 (1993), the Board majority concluded that a non-final award for permanent partial disability was an erroneous adjudication within the meaning of RCW 51.32.240(3). In that case Ms. Rodriguez was paid $2,250 for a permanent partial disability award. She protested that award and the Department later determined she was permanently totally disabled. The Board majority agreed the Department could recoup the $2,250 overpayment as erroneous adjudication. However, unlike Mr. Lajcin, Ms. Rodriguez had actually received the money for the permanent partial disability award.
RCW 51.32.240(3) provides for several mechanisms for the Department and the self-insured employers to recoup overpayments and incorrectly paid sums of money. This is not a blanket [7] authorization. We believe that RCW 51.32.240(3) does not alter the underlying principle of the Industrial Insurance Act to provide "sure and certain relief for workers" and to reduce to a minimum the economic loss of workers. RCW 51.04.010 and RCW 51.12.010. It has long been held that absent express statutory directive authorizing recovery, that money paid to recipients may not be recouped. Deal v. Department of Labor & Indus., 78 Wn.2d 537 (1970) citing State Ex Rel. Dunbar v. Olson, 172 Wash., 424 (1933). We believe this principle controls in this case. There is no express authority to recoup money from someone who merely benefited from a payment. Statutory construction requires that we give words their usual and ordinary meaning. Stute v. Von Thiele, 47 Wn. App. 888 (1987). Webster's II New Riverside University Dictionary, Houghton Mifflin Company, (1994) defines recipient as one who receives. Mr. Lajcin is not a "recipient" of the payment since he never had the money in his possession.
We hold that neither RCW 51.36.010, nor RCW 51.32.240, authorize the Department to recoup medical benefits paid on behalf of Mr. Lajcin while his claim was open.
FINDING OF FACTS
1. On August 9, 1991, the claimant, Anthony Lajcin, filed an application for benefits with the Department of Labor and Industries alleging that he was injured on August 1, 1991, while in the course of his employment with Burnham Service Co., Corp. The claim was allowed.
On December 27, 1993, the Department issued an order providing that time loss compensation benefits were terminated effective December 23, 1993, that vocational services had ended, that time loss compensation had terminated with payment for the period of December 16, 1993 through December 22, 1993, and that the claim remained open for further action.
On January 5, 1994, the claimant filed a protest to the Department’s December 27, 1993 order.
On April 11, 1994, the Department issued an order holding its December 27, 1993 order in abeyance.
On May 13, 1997, the Department issued an order affirming its December 27, 1993 order. [8]
On June 6, 1997, the Department issued an order providing that the worker’s permanent partial disability was best described by Category 2 of the categories of permanent dorso-lumbar and/or lumbosacral impairments, that an award be paid for the permanent partial disability, less deduction for social security offset overpayment, and that the claim be closed.
On July 7, 1997, the claimant filed a Notice of Appeal with the Board of Industrial Insurance Appeals from Department orders dated May 13, 1997 and June 6, 1997. On August 6, 1997, the Board issued orders granting the appeals under Docket No. 97 5348 (for Department order of May 13, 1997) and Docket No. 97 5349 (for Department order of June 6, 1997).
On September 24, 1998, following litigation of the appeals, the Board issued a Proposed Decision and Order providing that the Department orders of May 13, 1997 and June 6, 1997 are incorrect and are reversed and these matters remanded to the Department with directions to issue an order that determines that as of December 23, 1993, the claimant was permanently and totally disabled within the meaning of the Industrial Insurance Act as a proximate result of his industrial injury of August 1, 1991, and to take such other and further action as is consistent with that determination of the law and the facts.
On November 13, 1998, the Department filed a Petition for Review of the Board’s September 24, 1998 Proposed Decision and Order.
On December 2, 1998, the Board issued an order denying the Department’s petition.
On December 18, 1998, the Department issued an order providing that time loss compensation is terminated as paid to December 22, 1993; that the worker is totally and permanently disabled and placed on a pension effective December 23, 1993; that $4,500.00, including interest if applicable, previously paid to the worker for permanent partial disability by a non-final order, is being deducted from the pension reserve; that this will result in a permanent reduction of the monthly pension benefits; that medical treatment will not be covered after the effective pension date; and that this notice complies with the Board of Industrial Insurance Appeals order of December 2, 1998.
On January 4, 1999, the Department issued an order superseding an earlier order of December 28, 1998, and further providing that the worker was determined by the December 2, 1998 Board decision to be totally and permanently disabled and ordered placed on a pension effective December 23, 1993; that the Department entered an order adhering to the decision of the Board on December 18, 1998; that [9] medical bills were previously paid after December 23, 1993, and are not payable; that the Department will recoup all disbursements paid on behalf of the worker for medical treatment rendered after December 23, 1993, in the amount of $2,770.57; that the amount will be deducted from the worker’s pension benefits until recovered; that payment for medical treatment received after December 23, 1993, will be the responsibility of the worker.
On February 4, 1999, the claimant filed a Notice of Appeal with the Board of Industrial Insurance appeals from the Department’s January 4, 1999 order. On February 10, 1999, the Department issued an order holding its January 4, 1999 order in abeyance. By order of February 12, 1999, the Board returned the case to the Department for further actions.
On February 11, 1999, the Department issued an order which corrected and superseded the Department’s January 4, 1999 order, as the worker was totally and permanently disabled and placed on a pension effective December 23, 1993, pursuant to the December 2, 1998 decision by the Board of Industrial Insurance Appeals. The order further provided that on December 18, 1998, the Department had entered an order adhering to the Board’s decision, that medical bills previously paid after December 23, 1993, are not now payable, that the Department will recoup all disbursements paid on behalf of the worker for medical treatment rendered after December 23, 1993, in the amount of $2,469.55, that the amount will be deducted from the worker’s pension benefit until recovered, that payment for medical treatment received after December 23, 1993, will be the responsibility of the worker, that the amount of medical bills ordered recouped by the Department’s January 4, 1999 order in the amount of $2,770.57 has already been deducted from the worker’s pension benefit, and that the additional pension benefit in the amount of $301.02 will be repaid by the worker.
On March 5, 1999, the claimant filed a Notice of Appeal with the Board of Industrial Insurance Appeals of the Department’s February 11, 1999 order. On April 1, 1999, the Board issued an order granting the appeal under Docket No. 99 12440.
2. On June 6, 1997, Mr. Lajcin's conditions, proximately caused by the industrial injury, were determined by the Department to be medically fixed and stable.
3. From December 23, 1993 until June 6, 1997, Mr. Lajcin's claim was open for all statutory benefits including proper and necessary medical care for the conditions related to the industrial injury of August 1, 1991.
4. The Department of Labor and Industries paid money to medical care providers on behalf of Mr. Lajcin after December 23, 1993, in the [10] amount $2,469.55. These monies were paid directly to providers for medical services allowed by the Department.
5. Mr. Lajcin did not personally receive any portion of the $2,469.55 paid by the Department for medical care after December 23, 1993.
6. The $2,469.55 paid for medical services after December 23, 1993 was not induced by clerical error, mistake of identity, innocent misrepresentation, or fraud by Mr. Lajcin, the medical care providers, or the Department of Labor and Industries.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and subject matter of this appeal.
- Mr. Lajcin is not a recipient within the meaning of RCW 51.32.240(3).
- RCW 51.36.010, does not authorize the Department to recoup from the claimant medical benefits payable while a claim is open.
- The Department order of February 11, 1999, is reversed. This claim is remanded to the Department to award Mr. Lajcin benefits as a totally permanently disabled worker effective December 23, 1993, pursuant to a Decision and Order of the Board of Industrial Insurance Appeals dated December 2, 1998, and to reimburse Mr. Lajcin for all monies deducted from his permanent total disability benefit payments for medical costs paid after December 23, 1993. The original amount claimed by the Department was $2,770.57 and later modified to a reduced amount of $2,469.55. The entire amount of $2,770.57 less prior amounts repaid shall be reimbursed by the Department to Mr. Lajcin.
It is so ORDERED.
Dated this 25th day of April, 2000.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
THOMAS E. EGANChairperson
/s/
FRANK E. FENNERTY, JR.Member
/s/
JUDITH E. SCHURKEMember