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Rideshare recovery: Notice of costs unnecessary for workers’ comp reimbursement

An employer’s attempt to establish a black-letter requirement that workers’ compensation claimants must provide notice of their need for transportation to a medical appointment as a condition of recovery has backfired.

The employer argued that the Workers Compensation Commission erred in awarding the employee her out-of-pocket Uber expenses, and that her recovery should have been limited to reimbursement for mileage.

But the Court of Appeals of Virginia found that the commission’s outcome was correct, albeit on different grounds.

“The Workers’ Compensation Commission awarded full reimbursement of Jeffry’s Uber costs, concluding that the employer and insurer suffered no prejudice from the lack of notice. We affirm on a different ground: we find no such notice requirement in the statute,” Judge Stuart A. Raphael wrote for the court.

The opinion is Medical Management Int’l, et al. v. Jeffry (VLW 022-7-489). Judges Glen A. Huff and Lisa M. Lorish joined the decision.

Uber expenses

Pamela Jeffry was employed by Medical Management Intl. when she suffered a compensable work injury in November 2013. After Jeffry had surgery for the injury in 2019, her doctor instructed her not to drive.

Jeffry’s family would usually drive her to medical appointments, but she relied on Uber as a last resort when they were unavailable. Her 44 trips totaled $881.47.

The Virginia Workers’ Compensation Commission entered multiple compensation awards for Jeffry. She then sought reimbursement for the Uber rides.

Jeffry thought her employer’s case manager knew she wasn’t allowed to drive, but she never explicitly informed the employer that she needed transportation. The employer confirmed that it never offered Jeffry transportation and didn’t know that she needed it.

A deputy commissioner initially denied Jeffry’s claim and ordered the employer to reimburse her $139.83, using the commission’s standard rate per mile.

But the commission then reversed itself and awarded Jeffry the full amount of her Uber charges. It reasoned that notice would allow the employer to mitigate costs, but the employer suffered no prejudice from the lack of notice, so the claim wasn’t barred.

The employer appealed.

No notice required

The Virginia Workers Compensation Act requires employers to provide employees who have compensable medical claims with medical care and other necessary medical attention.

“In order that such medical attention be free of charge to the employee, the Commission ‘has consistently held that the employer is responsible for the reasonable and necessary transportation in connection with [a] claimant’s medical treatment,’” Raphael wrote.

“Depending on the circumstances, reasonable and necessary costs may encompass various methods of transportation, ranging from ‘mileage reimbursement’ to ‘the cost of taxi service, ambulance [rides] or airplane [fare],’” the judge continued.

On appeal, the employer didn’t argue that the charges were unreasonable or excessive, and in fact acknowledged that the amount in controversy was relatively small.

But it said at oral argument that it wanted “to establish a black-letter-law requirement that claimants must provide notice of their need for transportation to a medical appointment as a condition of receiving reimbursement for any actual out-of-pocket costs.”

The court was unpersuaded.

“We reject the employer’s claim that Jeffry’s failure to request transportation is ‘fatal to her claim for reimbursement of her Uber expenses after the fact,’” Raphael said. “We find nothing in the Act to support an advance-notice or pre-authorization requirement. And to imply such a requirement would be inconsistent with the ‘remedial’ purpose of the Act, which must be ‘liberally construed in favor of the injured employee.’”

— Judge Stuart A. Raphael

The judge added that the “omission of such a notice requirement in the text of the Act to be significant because the General Assembly knew how to create a notice requirement if it had intended one.”

Citing other notice requirements in the act, Raphael noted that when the legislature uses specific language in one instance and omits or changes that language elsewhere, “we must presume that the difference in the choice of language was intentional.”

Here, the court found no language in the act requiring notice of reasonable and necessary medical expenses.

Further, “it would be strange to require employees to give notice of their intent to undertake reasonable and necessary expenses that are ancillary but essential to their compensable medical treatment [and] would be even stranger to default the employee for failing to provide such notice without asking if the lack of notice prejudiced the employer’s interests,” Raphael wrote.

The judge pointed to a decision in which it ruled that a workers’ compensation claimant wasn’t required to seek and obtain pre-authorization before purchasing a hot tub that her doctor prescribed for pain relief.

Given that holding, it would be “inconsistent to require notice here when a claimant does not have to specifically request medical benefits in an application to the Commission to be entitled to all necessary medical costs.”

But Raphael offered the following caution.

“[O]ur decision here does not disturb the Commission’s prior rulings that an employer ‘can choose the means by which’ to meet its obligation to provide the claimant transportation to medical appointments,” he wrote.

An invaluable tool

Craig Davis, a partner with Reinhard Harper Davis in Richmond who specializes in workers’ compensation, said the Virginia Workers Compensation Act was intended to create what is, in essence, a “no-fault” system.

“I am really proud there are lawyers like [plaintiff’s attorney] Tom McWeeny who are willing to go to bat for their clients and invest their own time — no doubt at a financial loss — to hold insurers accountable,” he told Virginia Lawyers Weekly. “In so doing he has provided an invaluable tool for injured workers and their attorneys to seek justice.”

“Unfortunately, insurance carriers regularly use their superior bargaining power and staggering financial advantage over injured workers to coerce them into accepting less than what is promised under the act,” he pointed out. “It falls to the court to issue a holding that does nothing more than state what should be obvious.”