Compensability & Missed IME Appointments

In Fahler, Claimant was employed as a Field Technician. As such, the job required Claimant to maintain kiosks by stocking, repairing, and painting them. In May 2019, Claimant was tasked with installing new credit card readers on the kiosks, which included drilling and hardware installation. On June 10, 2019, Claimant installed readers and began to experience right shoulder pain. The next day, Claimant informed his supervisor of the pain and was sent home early. On June 28, 2019, Claimant was replacing another reader when he claimed he injured his shoulder. While he was drilling, the bit punched through the metal of the kiosk causing the drill to recoil, resulting in pain in his right shoulder. Claimant worked for the rest of the day and the next morning was unable to move his right shoulder due to severe pain. That morning, Claimant called his manager to report the injury.

Claimant had suffered a prior injury and underwent surgery and physical therapy for his shoulder in 2001 and 2004. Additionally, in 2013 and 2014, Claimant sought treatment for right shoulder pain and a thoracic sprain. For those reasons, there was dispute regarding whether the injury was work-related. As a result, Claimant was evaluated by two separate physicians and scheduled for an independent medical evaluation (“IME”) in December 2019. However, Claimant did not attend the IME appointment without justification. As a result, Respondents incurred a no-show fee.

The Administrative Law Judge (“ALJ”) determined that the drilling activities aggravated Claimant’s pre-existing issues and the injury was therefore compensable. There was a lack of evidence that preexisting conditions were symptomatic or disabling immediately prior to the work injury. The ALJ also stated that he was unaware of any rule that would grant the authority to order Claimant to reimburse Respondents the cost of the missed IME appointment. On appeal, Respondents argued that the ALJ’s determination of compensability was not supported by substantial evidence and that the ALJ should have ordered Claimant to reimburse Respondents the cost of missed IME appointment.

Two physicians had examined Claimant, and each had differing opinions regarding whether the injury suffered was work-related. The ALJ was persuaded by the testimony presented by the physician that stated the work incident caused a permanent aggravation of Claimant’s underlying conditions and therefore was a compensable work injury. The Industrial Claim Appeals Office (“the Panel”) found that ALJ’s determinations of causation and compensability were supported by substantial evidence. Additionally, the Panel reviewed Respondents’ argument that statute would not limit their ability to recover IME no-show fees from a Claimant, and that the ALJ erred in not requiring reimbursement from Claimant. However, the Panel agreed with the ALJ that a Claimant is not statutorily required to reimburse Respondents for fees associated with missed IME appointments. For those reasons, the Panel affirmed the ALJ’s order.

Fahler v. Redbox, W.C. No. 5-111-049 (I.C.A.O. Aug. 17, 2020)

Want to know more? Contact Brianna Tancher at btancher@pollartmiller.com or 877-259-5693.

October 2020 Newsletter

2020-11-05T16:03:12+00:00