In the Matter of, LLEWELLYN JACKSON, Claimant, v. CES SECURITY, and GALLAGHER BASSETT SERVICES, INC., Employer/Carrier.
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AHD NO. 03-116C OWC NO. 580505 & 597916
Appearances: BENJAMIN T. BOSCOLO, ESQUIRE For the Claimant Before: ANAND K. VERMA Administrative Law Judge JEFFREY W. OCHSMAN, ESQUIRE For the Employer/Carrier
COMPENSATION ORDER
STATEMENT OF THE CASE
This proceeding arises out of a claim for workers’ compensation benefits filed pursuant to the provisions of the District of Columbia Workers’ Compensation Act of 1979, D.C. Code, as amended, §§32-1501 et seq., (hereinafter, the Act). After timely notice, a formal hearing was held on September 18, 2007, before Anand K. Verma, Administrative Law Judge. Llewellyn Jackson, appeared through counsel (hereinafter, claimant). CES Security /Gallagher Bassett Services, Inc. (hereinafter, employer) appeared by counsel. No testimony was adduced by either party. Claimant Exhibit (hereinafter, CE) No.1-4 and Employer Exhibit (hereinafter, EE) No. 1were admitted into
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evidence. The record closed on the receipt of an official copy of Hearing Transcript (HT) on October 2, 2007. Claimant was also afforded additional time until September 28, 2008 to submit into evidence the reliable documents bearing upon claimant’s inability to participate in the formal hearing. The Administrative Hearings Division (AHD) received claimant’s documents on September 27, 2007.
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ISSUE
Whether claimant had good cause for his failure to appear at the IMEs on May 21 and June 18, 2007 and deposition on August 29, 2007.
FINDINGS OF FACT
I incorporate by reference the findings of facts in its entirety made in the June 26, 2006 Compensation Order. Based on the review of the record as a whole, I make the following additional findings: I find by a Compensation Order issued on June 26, 2006, claimant was awarded continued temporary total disability benefits from July 16, 2002. I find by a Citibank check #0056403267, dated May 14, 2007 claimant was paid disability benefits from June 26, 2006 to May 14, 2007 in the amount of $11,100.00 I find, having relocated to Trinidad and Tobago, his native country, after the Formal Hearing on February 17, 2004, claimant currently resides therein. I find in order to determine the nature and extent of claimant’s continued disability, employer arranged to have claimant independently medically examined by James E. Callan, M.D. on May 21, 2007, however, claimant did not attend the scheduled examination. I find another IME with Dr. Callan was scheduled on June 18, 2007, which claimant failed to attend. I find claimant did not respond to employer’s interrogatories and request to produce documents served upon him on or about June 22, 2007. I find claimant failed to appear at his scheduled
BACKGROUND
As result of claimant’s on-the-job injury, pursuant to the Compensation Order issued on June 26, 2006, he has been receiving continued temporary total disability benefits from July 16, 2002. Employer seeks suspension of the temporary total disability benefits on the ground that claimant repeatedly failed to appear at the independent medical examination (IME) scheduled with employer’s orthopaedic surgeon and also failed to appear at the deposition and as well as respond to interrogatories and request to produce documents.
CLAIM FOR RELIEF
Employer seeks a suspension of claimant’s continued disability benefits on the ground that he unreasonably failed to submit to the IME as well as to his deposition pursuant to D.C. Code §32-1507(d).1
Employer’s request for modification of the June 28, 2006 Compensation Order cannot be addressed without a hearing under Snipes v. DOES, 542 A. 2d 832 (D.C. 1988) to determine if there is reason to believe that a change in claimant’s condition has, in fact, occurred. Accordingly, both parties shall call the AHD to arrange for a telephone conference with the undersigned to schedule a date for formal hearing.
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deposition on August 29, 2007. I find in a facsimile copy of his affidavit dated September 28, 2007, claimant stated in paragraph 7 as follows: On August 28, 2007, I received word from the United States Embassy that my visa would only be approved if I could show proof that I had at least $15,000.00 in a bank account. I find the information contained in the unauthenticated copy of the affidavit is unreliable and unworthy of belief. I find the record does not consist of an official document from the United States Embassy in Trinidad and Tobago reflecting claimant’s ownership of $15,000.00 in a U.S. bank account as a pre-requisite to approving a visa petition.2 I find an excerpt from the website of the United States Embassy in Trinidad and Tobago dated September 27, 2007 makes no provision for a visa fee of $630.00. See claimant’s posthearing exhibit #2. I further find the website excerpt includes no reference to the alleged requirement of claimant’s ownership of $15,000.00 in a U.S. bank account. See claimant’s post-hearing exhibit #3. I find said excerpt demonstrates, among other things, that applicants for visitor visas should also bring documents that demonstrate strong ties to Trinidad and Tobago. Such documents could include: Statements from banks or credit unions indicating current and six month average balance of savings; Property titles and valuations; and __ __ __ __
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I find claimant also failed to testify at a deposition which was scheduled to convene on August 28, 2007. I find claimant’s post-hearing submissions attempting to corroborate his inability to obtain a visa to travel to the United States are incredible and unreliable. I find claimant has not offered into evidence a credible evidence demonstrating issuance of an initial visa (and its subsequent expiration) that authorized him to work in the United States.
DISCUSSION
I have reviewed the arguments of counsel with respect to the issue presented herein. To the extent an argument is consistent with the findings and conclusions, it is accepted; to the extent an argument is inconsistent therewith, it is rejected. Whether claimant had good cause for his failure to appear at the IMEs on May 21 and June 18, 2007 and deposition on August 29, 2007. D.C. Code §32-1507(d) provides in relevant part: If at any time during such period the employee unreasonably refuses to submit to medical or surgical treatment or to an examination by a physician selected by the
Claimant’s post-hearing submission tabbed as Exhibit 2 purportedly consists of a post office receipt dated June 14, 2007 referencing an acknowledgment of $630.00 under product USVISA.
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employer, or to accept v o c a t i o n a l rehabilitation the Mayor shall, by order, suspend the payment o f f u r t h e r compensation, medical payments, . . . . during such period, unless the circumstances justified the refusal. A careful review of the record evidence discloses that sometime after the February 17, 2004 Formal Hearing, claimant moved to his native country of Trinidad and Tobago where he currently resides. Although claimant did not participate in the Formal Hearing convened on September 18, 2007, his counsel argued that his failure to appear therein was involuntary in that he did not own a minimum of $15,000.00 in a U.S. bank account, required by the United States Embassy in Trinidad and Tobago, as a condition to approving his visa petition. Upon consideration of counsel’s argument, the undersigned instructed her to provide before September 28, 2007 an official evidence from the U.S. Embassy in Trinidad and Tobago in the form of its letter addressed to claimant requiring claimant’s ownership of $15,000.00 in a U.S. bank account as a condition precedent to issuing a visitor’s visa to travel to the United States. The post-hearing submissions received from claimant fail to support his assertions as contained in an unauthenticated facsimile copy of the September 28, 2007 affidavit. Although unambiguously instructed to proffer credible and reliable evidence from the United States Embassy confirming claimant’s maintenance of a minimum of $15,000.00 in a U.S. bank account, claimant adduced no such evidence;
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instead, he submitted an unverified excerpt from the website of U.S. Embassy in Trinidad and Tobago. Assuming, however, that even if the website excerpt were deemed reliable, it lends no credence to claimant’s assertions. Hence, finding claimant’s submissions as unreliable and incredible, the undersigned holds that claimant has failed to demonstrate good cause for his repeated failure to attend the IMEs as well as a deposition scheduled by employer. As a result, claimant’s benefits are suspended until such time that he can obtain the necessary visa to travel to the United States to attend the IME and testify at his deposition.3
CONCLUSIONS OF LAW
Based upon a review of the record evidence as a whole, I find and conclude claimant has not produced substantial evidence in establishing good cause for his failure to attend the IMEs on May 21 and June 18, 2007 and a deposition on August 29, 2007.
Employer shall, upon claimant’s arrival to the United States, schedule his deposition, preferably the same or the next day following his IME in order to economize claimant’s expenses during his stay here.
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ORDER
It is ORDERED that claimant’s temporary total disability benefits be suspended from the date of the first IME on May 21, 2007 until he reasonably complies by participating in a subsequently ordered IME.4
ANAND K. VERMA Administrative Law Judge October 3, 2007 Date
Employer’s obligation to pay claimant temporary total disability benefits pursuant to the June 28, 2006 Compensation Order remains otherwise unaffected by this Order.
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