Rebecca Failing v. State of Delaware, (C.A. No. K18A-07-002 WLW – Decided Feb. 25, 2019)

Tolls and parking expenses incurred for attending medical appointment not reimbursable.

The crux of the claimant’s argument on appeal was that the Board failed to act on implicit authority granted in the Act because of its mistaken belief that they could not grant reimbursement for tolls and parking incurred in the claimant’s commutes to Philadelphia for medical treatment. The employer argued in support of the Board’s decision that the claimant was essentially asking the court to find ambiguity in Section 2322 (g) where none existed, thereby creating a new liability on employers that is not based in the Act or any case law.

The court noted Section 2322 (g) states that in obtaining medical treatment, as well as medical supplies for a compensable injury, “an employee shall be entitled to mileage reimbursement in an amount equal to the State specified mileage allowance rate in effect at the time of travel . . .” The court concluded it was not persuaded by the claimant’s argument because this Section is clear and unambiguous concerning mileage being the only authorized and compensable reimbursement available. The court explained that Section 2322 (g) is unambiguous and cannot be reasonably interpreted in any other manner than its plain meaning. In other words, there are no reasonable doubts regarding the meaning of the term “mileage.” The claimant had cited other sections of the Act that provided reimbursement for “travel expenses,” but the court stated it was irrelevant since they would reasonably assume that the Legislature was and is aware of its choice of statutory language and, thus, fully intended Section 2322 (g) to reflect only mileage as compensable. The court stated that the law demands that the court must assume that the Legislature amended Section 2322 (g) with the intent to use the specific term “mileage,” despite the knowledge that other sections of the Act, including Section 2353, use the broader term “travel expenses.” Therefore, the court held that since Section 2322 (g) is plainly unambiguous, the Board had correctly interpreted and applied the law to its decision, and since that decision was free from legal error, it was affirmed.


Case Law Alerts, 3rd Quarter, July 2019

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