The Workers Compensation Court of Appeals (WCCA) vacated an order by a compensation judge where the record had been left open for submission of an amended exhibit and the original exhibit claimed $670 in expenses but the amended exhibit submitted post hearing listed more than $10,000 in previously unclaimed expenses.
At the September 17, 2020 hearing, the employee’s attorney introduced an exhibit (T) itemizing out-of-pocket medical expenses and medical travel costs incurred by the employee.
Employee was awarded temporary total and temporary partial disability compensation from March 5, 2018 and continuing. The compensation judge also ordered reimbursement of out-of-pocket expenses the employee had claimed in Exhibit T.
During off-the-record discussions between the attorneys and the compensation judge, the employee’s attorney stated the claim was $670. The employer’s attorney noted that some of the expenses included in the exhibit were incurred before the injury. The compensation judge agreed to hold the record open for one week for the employee’s attorney to withdraw the exhibit and present an amended claim.
September 23, 2020 the employee’s amended exhibit was submitted with the employee’s claim totaling $10,788.16. The new claim included copays or mileage involving providers whose records were not in evidence. The employer’s attorney emailed the judge the next day, objecting to consideration of a new claim that had not been made at hearing. The compensation judge did not address the employer’s objection. She issued her Findings and Order on November 5 and ordered the employer to pay the employee’s out-of-pocket expenses set forth in Exhibit (T). The employer appealed.
The failure of the compensation judge to address the objections raised by the employer’s attorney compounded the prejudice to the employer. No medical records or reports were provided to explain any of the items. The parties were aware of the hearing and there were no extenuating circumstances offered by the employee’s attorney as to why the amended claim for out-of-pocket expenses was not made at the hearing. The WCCA concluded the award of these expenses was an abuse of discretion and vacated.