Failed surgery bid bars refund of injured worker’s legal costs

An injured worker failed to show that he obtained a victory in his bid to have his spinal surgery in New York, a federal appeals court ruled Friday in denying his request for attorneys fees and costs associated with the effort.

In Peña-Garcia v. Director, Office of Workers Compensation Programs, a three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston upheld on Friday the U.S. Department of Labor Benefits Review Board’s denial of a Puerto Rican man’s petition for attorney’s fees and costs, holding that he failed to obtain a “successful prosecution” of his workers compensation claims.

Luis Peña-Garcia suffered a disabling back injury in 1994 while working for a construction company in Puerto Rico and sought coverage for his spinal surgery. The construction company and its insurer accepted liability for his accident and began paying medical benefits. In 2010, Mr. Peña-Garcia saw an orthopedic surgeon who recommended complex spine reconstruction surgery. The company and insurer agreed to pay for the surgery in Puerto Rico, but Mr. Peña-Garcia said his surgery must be performed at Beth Israel Spine Institute in New York. The insurer notified him that because he and his family resided in Puerto Rico and he would have a recovery time of three months to one year, that it would deny his request to undergo surgery outside of Puerto Rico. Mr. Peña-Garcia filed a claim for medical compensation for the surgery in New York against his employer and its insurer under the Longshore and Harbor Workers Compensation Act, alleging that their refusal to pay violated the LHWCA.

In 2016, an administrative law judge ordered the company and insurer to pay for reasonable and necessary medical care, as well as spinal surgery and rehabilitation, but held that they would only be liable for medical costs associated with obtaining care and treatment in Puerto Rico. The judge said if Mr. Peña-Garcia chose to have the surgery in New York, “he would then be responsible for whatever additional expenses he incurred.” However, Mr. Peña-Garcia submitted a request for $60,000 in attorney fees and $4,000 in fees for his treating physician, who testified at the hearing, arguing that he had successfully prosecuted the earlier claim before the judge on the theory that his claim had been a victory because he had obtained “what he called his right to choose to have the surgery in New York.” The judge held that Mr. Peña-Garcia was not entitled to attorney’s fees and costs, finding that he had not obtained a “successful prosecution.” The review board affirmed the decision, and Mr. Peña-Garcia appealed.

The 1st Circuit panel held unanimously that the board did not err in affirming the administrative law judge’s decision. The circuit court found that Mr. Peña-Garcia mischaracterized the judge’s decision as both confirming his right to choose surgery in New York and as an award of “additional compensation,” noting that Mr. Peña-Garcia was not awarded compensation because there was no evidence that the insurer and employer refused to pay for surgery in Puerto Rico.

As a result, the court held that his petition for review was without merit.

The attorney for the company and insurer, Manuel Porro-Vizcarra, said the facts of the case were “plain and simple” and declined to comment further. The attorney for Mr. Peña-Garcia could not be located for comment.