| IN RE: WILLIE DUNN | ) | DOCKET NO. 91 0602 |
| ) | ||
| CLAIM NO. K-111982 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
- Claimant, Willie Dunn, Pro Se, and by
- Small, Snell, Logue & Weiss, per
- Brent Featherston, Legal Intern
- Employer, Volt Temporary Services, Inc., by
- Rick Moore
- Department of Labor and Industries, by
- The Office of the Attorney General, per
- Donna Brown, Barbara Gary, and Larry Jones, Assistants, and by
- Whitney Cochran, Paralegal
This is an appeal mailed by the claimant, Willie Dunn, on February 2, 1991, and received by this Board on February 6, 1991, from an order of the Department of Labor and Industries dated December 4, 1990 which suspended the claimant's right to further benefits effective December 4, 1990 for failure to submit to a medical examination. Reversed and remanded.
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 January 7, 1992 in which the order of the Department dated December 4, 1990 was affirmed. [2]
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.
The issue on appeal is whether the Department of Labor and Industries properly suspended claimant Willie Dunn's benefits effective December 4, 1990 for failure to attend a medical examination on November 29, 1990. The appeal was tried on the issue of whether Mr. Dunn had good cause for his failure to appear. We find that he did have good cause, based on the facts as hereafter set forth. In addition, we find that the suspension was improper in that the Department failed to comply with the requirements of WAC 296-14-410 before issuing the suspension order.
Willie Dunn suffered an industrial injury in Washington on July 25, 1986. He moved to Texas in October 1986. Between October 1986 and the December 4, 1990 suspension order, all benefits and medical care were provided to Mr. Dunn in Texas. In 1990, Mr. Dunn began discussions with the Department about settlement and closure of his claim. The medical information about Mr. Dunn from a vocational assessment conflicted with the records he used to support a successful bid for social security disability benefits. As a result of the discrepancies in medical information, the Department required Mr. Dunn's attendance at a medical examination pursuant to RCW 51.32.110.
Mr. Dunn did not have a telephone, so the Department initiated all communications to him by mail. Mr. Dunn occasionally initiated telephone calls to the Department. Jonine Stewart was the claims manager assigned to Mr. Dunn's case. On November 2, 1990, she sent Mr. Dunn a letter [3] informing him that an examination would be arranged in Seattle, with the Department making advance arrangements for transportation and lodging. Shortly thereafter, the Department sent him a letter informing him that the examination was scheduled for November 29, 1990. The letter instructed Mr. Dunn to contact the Department's Seattle service location to make travel arrangements. On November 13, 1990, Mr. Dunn contacted the service location and informed Jeannie Ramirez that he was wheelchair- bound and would require special transportation arrangements. Ms. Ramirez referred him back to Ms. Stewart regarding the special transportation needs. Ms. Ramirez did not make any travel arrangements after speaking with Mr. Dunn.
Ms. Stewart does not personally make transportation arrangements for out-of-state claimants, but did undertake to get authorization for a wheelchair and transportation to an airport in Texas. She relayed information concerning this authorization to Ms. Ramirez, and assumed that a reservation for Mr. Dunn was arranged by November 16, 1990. In fact, Ms. Ramirez failed to make any reservations at that time. Ms. Stewart sent Mr. Dunn an express mail letter on November 16, 1990 reminding him that he must cooperate or his benefits would be suspended. The letter contained no information regarding specific airline flight information and/or lodging arrangements.
On November 26, 1990, Mr. Dunn called the Seattle service location, again speaking with Ms. Ramirez. She had not yet made reservations for him. Mr. Dunn at that time requested that the Department also pay for an attendant (his wife) to accompany him. Ms. Ramirez referred him back [4] to Ms. Stewart. Ms. Stewart requested medical confirmation that an attendant was necessary. Neither Mr. Dunn nor his wife provided that information. Ms. Stewart sent another express mail letter on that day informing Mr. Dunn that his benefits would be suspended if he did not appear at the scheduled examination. The letter contained no information about travel arrangements.
On the morning of November 28, 1990, Mr. Dunn again called the service location about travel arrangements. He spoke with Carol Goya. Ms. Goya informed him that no travel arrangements had been made and she had no authority to make a reservation for an attendant. On the afternoon of November 28, 1990, Ms. Stewart authorized travel arrangements for Mr. Dunn and an attendant. At 3:45 P.M. Ms. Ramirez made the necessary plane reservations for 6:55 A.M. the next morning. Neither Ms. Ramirez nor Ms. Stewart made any attempt to communicate the travel arrangements to Mr. Dunn, but "hoped" that he would call back later in the day so he could be told which airline to go to by 6:55 A.M. the next morning.
Ms. Ramirez testified that, although she knew earlier in the month that Mr. Dunn was to travel from Houston to Seattle, she held off making the plane reservation because she knew he was requesting "special" travel arrangements. She testified that she never made travel reservations until claimants unequivocally agreed to appear because "[It] takes a lot of doing and a lot of time. If I did that for everyone that wasn't going to show up, we'd have a real mess." 9/18/91 Tr. at 9. [5]
On the morning of November 29, 1990, Mr. Dunn presented himself at the Houston airport and went from counter to counter asking if there were reservations for any flight to Seattle in his name. This effort was without success. On December 4, 1990, the Department issued the order suspending Mr. Dunn's benefits for failure to attend the November 29, 1990 medical examination.
RCW 51.32.110 and WAC 296-20-1103 provide that the Department will reimburse workers for travel expenses associated with special examinations conducted at the Department's request. The parties do not dispute that the Department told Mr. Dunn that travel arrangements would be made for him in advance by the Department. In fact, however, the Department did not make any travel arrangements until less than 24 hours remained before the scheduled examination. Such travel arrangements were not communicated to Mr. Dunn.
It is true that Mr. Dunn asked for special travel arrangements (wheelchair, and wife's accompaniment as an "attendant") that the Department ordinarily would not pay without advance investigation and authorization. Such authorization was finally approved on the afternoon of November 28, 1990, and reservations were then made for a flight leaving Houston at 6:55 A.M. on the day of the scheduled Seattle examination. But such arrangements could not be communicated to Mr. Dunn. Inconvenience in dealing with travel arrangements that may have to be altered or cancelled does not justify placing Mr. Dunn in an impossible position and then using his alleged "noncooperation" as the basis for suspension of benefits. [6]
A Departmentally promulgated regulation is also directly applicable here. WAC 296-14-410 provides in pertinent part that:
Prior to the issuance of an order reducing, suspending or denying benefits, the department or self-insurer must request in writing, from the worker . . . the reasons for refusal, obstruction, delay or noncooperation.
If the department determines no good cause exists, or if the worker fails to respond to the department's request for the reason for the refusal . . . or noncooperation within thirty days after the letter is issued, the department will issue an order . . . suspending . . . benefits. (Emphasis added)
The Department presented no evidence that it made an attempt to comply with WAC 296-14-410. The order suspending benefits was issued on December 4, 1990 -- only five days after Mr. Dunn did not appear at the special examination. There was obviously no opportunity for Mr. Dunn to timely present his explanation for his failure to appear, as plainly required by WAC 296-14-410.
We recognize that it was quite difficult for the Department's claims people to communicate with Mr. Dunn, and that his requests for special travel arrangements complicated the matter further. However, in the last analysis, the Department's delayed and circuitous actions culminating in truly "last minute" arrangements, constituted good cause for his failure to appear as scheduled.
We will remand the matter to the Department with instructions to rescind and set aside the suspension order of December 4, 1990. In this regard, we note that there are apparently no compensation benefits to be reinstated, at least not yet. This record shows that the claim was closed by an order of June 8, 1990, with a permanent partial disability rating for low back impairment, and with time loss compensation [7] terminated as paid through February 22, 1988. However, Mr. Dunn timely protested that order, and it was held in abeyance by Department order of August 8, 1990. Thereafter followed the series of events heretofore recited, leading unfortunately to the failure to accomplish the scheduled medical examination on November 29, 1990 -- an examination which may have led to resolution of the claim issues still to be decided, i.e., need for further treatment, right to further time loss compensation, if any, and/or extent of permanent disability.
It is to be hoped that a new, special examination, providing updated information on Mr. Dunn's condition related to the 1986 injury, can be expeditiously performed. In this regard, by letter dated December 31, 1991, and by subsequent correspondence, Mr. Dunn advised this Board that he has now moved from Texas to California, and now resides at 326 I Street, #131, Eureka, California 95501. Perhaps his closer location will help the Department in making successful examination arrangements.
Proposed Findings of Fact Nos. 1, 2, and 3, and proposed Conclusions of Law Nos. 1 and 2 are correct and are hereby adopted as this Board's final findings and conclusions. In addition, we enter the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
4. At all times relevant to the issue in this appeal, claimant Willie Dunn did not have a telephone and the Department's representatives were aware that they could only contact him by mail.
5. On November 2, 1990, claims manager Jonine Stewart informed claimant Willie Dunn by mail that a special examination was scheduled for him in Seattle, Washington on November 29, [8] 1990; that failure to attend the examination could result in suspension of his benefits; and that the Department would make advance arrangements for Mr. Dunn's travel to Seattle after he contacted the assigned service location.
6. On November 13 and November 16, 1990, Willie Dunn contacted Jonine Stewart by telephone regarding a request that travel arrangements accommodate his alleged need for a wheelchair.
7. On November 16, 1990, Willie Dunn contacted Jeannie Ramirez at the Seattle service location with his request that travel arrangements include wheelchair accommodations.
8. On November 16, 1990, Jonine Stewart sent an express mail letter to Willie Dunn again informing him that he must attend the special examination on November 29, 1990. The letter contained no information regarding the promised advance travel arrangements.
9. On November 26, 1990 Willie Dunn again contacted the Seattle service location as well as Jonine Stewart regarding travel arrangements. The Department had made no travel arrangements of any kind as of that date. Mr. Dunn requested permission to travel with his wife as an attendant. No permission was granted at that time.
10. On the morning of November 28, 1990, Willie Dunn again contacted the Seattle service location regarding travel arrangements and was informed that none had been made.
11. On the afternoon of November 28, 1990, at 3:45 P.M., Jeannie Ramirez at that assigned service location made reservations for Mr. Dunn and his wife to travel to Seattle on a flight leaving Houston, Texas at 6:55 A.M. on November 29, 1990. Neither Ms. Ramirez nor any other Department employee communicated the travel arrangements to Mr. Dunn, although they hoped he would call back later that day to find out the flight and its time of departure the next morning. [9]
12. Willie Dunn did not attend the special medical examination scheduled in Seattle, Washington on November 29, 1990.
13. Following Willie Dunn's failure to appear at the special examination scheduled on November 29, 1990, the Department did not request in writing that Mr. Dunn provide his reasons for failing to appear at the scheduled examination before issuing the December 4, 1990 order suspending benefits in his claim.
CONCLUSIONS OF LAW
3. The Department of Labor and Industries did not comply with the provisions of WAC 296-14-410 before suspending claimant Willie Dunn's benefits for failure to appear at a scheduled special examination on November 29, 1990.
4. Willie Dunn had good cause, within the contemplation of RCW 51.32.110, for failure to appear at the special examination scheduled on November 29, 1990, in that the Department failed to make travel arrangements until November 28, 1990 and failed to communicate those arrangements to the claimant before November 29, 1990.
5. The Department order of December 4, 1990 which suspended the claimant's benefits under the Industrial Insurance Act for failure to submit to a medical examination on November 29, 1990, is incorrect and is reversed and the claim remanded to the Department with direction to rescind and set aside the order of December 4, 1990, and to reschedule the special examination which was not accomplished on November 29, 1990, and thereafter take such further action in the claim as may be indicated by the facts and authorized by law. [10]
It is so ORDERED.
Dated this 16th day of July, 1992.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
S. FREDERICK FELLER Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
PHILLIP T. BORK Member