In Jeffry, Full Commission Shifts Burden of Proof of Prejudice to Carrier in Transportation Reimbursement Claims
In a split decision of the full Commission, the Virginia Workers’ Compensation Commission creates a new requirement for defendants to establish that they would have secured less costly transportation where an injured worker fails to advise in advance of her need for transportation and instead arranges for her own, more costly transportation.
In Pamela Jeffry v. Medical Management Intl., JCN VA00000865091 (Feb. 8 2022), the claimant filed a claim on December 8, 2020 seeking reimbursement for $881.47 paid to Uber for transportation to and from her medical appointments from May 2, 2019 through February 24, 2020. The defendants denied responsibility for the claimant’s Uber bills on the grounds that the claimant never requested transportation from the carrier, depriving them of the opportunity to make their own arrangements for the claimant’s transportation.
In Jeffry, the claimant’s evidence established that she was unable to transport herself to her medical appointments and was unable to secure transportation to her appointments from any of her family members. As a result, she relied on Uber to transport her to her appointments. She never contacted the carrier to request transportation for the appointments at issue, and the carrier did not learn of the claimant’s use of Uber until months after her last appointment. At the hearing, the adjuster testified that transportation to and from medical appointments was provided to claimants who lacked transportation pursuant to an existing contract between the carrier and a vendor, and that such transportation would have been provided in this case had the carrier known of Ms. Jeffry’s transportation issues. No evidence was proffered regarding the costs which would have been incurred (saved) by the carrier pursuant to its transportation contract with its vendor for the claimant’s appointments from May 2, 2019 through February 24, 2020.
The deputy commissioner, relying on the longstanding precedent of Hamil v. Lowe’s, VWC File No. 208-73-39 (May 30, 2003), held that while that claimant did provide that she was unable to provide her own transportation to her medical appointments, because she had not requested transportation assistance from the carrier, she was not entitled to reimbursement for her Uber expenses.
In a 2-1 decision, the full Commission disagreed, holding that while the evidence established that the claimant had not requested transportation assistance from the carrier, she was entitled to reimbursement for her Uber expenses because the carrier failed to demonstrate how it was prejudiced by the claimant’s failure to request transportation through the carrier. (Commissioner Rapaport dissented, opining that the claimant’s failure to timely advise the carrier of such issues before incurring unreasonable travel expenses should have entitled her only to reimbursement of her mileage, but not to the additional costs of Uber.)
Based on the language of the full Commission’s opinion in Jeffry, it would appear that where a Virginia claimant is unable to provide her own transportation to a medical appointment and informs the carrier of her need for transportation, pursuant to Hamil, the carrier will be responsible for either (1) providing the transportation or (2) reimbursing the reasonable cost of such transportation. See Hamil v. Lowe’s. This we already knew. The takeaway from Jeffry appears to be as follows: where a Virginia claimant is unable to provide her own transportation to a medical appointment but fails to inform the carrier of her need for transportation, the carrier will not be responsible for reimbursement of the claimant’s travel expenses if and only if the carrier can show that its interests were prejudiced (read: it would have otherwise been able to save money by arranging transportation by a less costly means) had it known of a claimant’s transportation issues in advance.
We will continue, as always, to keep you updated on important changes to Virginia Workers’ compensation law.