Usually, your humble blogger sleeps the sleep of the just.  But the other night, something kept him from slipping blissfully into that world where claims are denied, liens are dismissed, and businesses flock to California to reap the soft, golden glow of low workers’ compensation costs.  A defense lawyer can dream, can’t he?

Instead, your humble blogger did a bit of research and came across a fellow of a similar affliction – Ronald S. Verna.  Mr. Verna, the applicant in the case of Ronald S. Verna v. City of Los Altos Police Department, sustained an injury and filed a claim, which was resolved by way of compromise and release with open future medical in 2008.

The writ denied case awarded applicant reimbursement for out-of-pocket costs for a continuous positive airway pressure machine, which was supposed to help him sleep, because his industrial back injuries resulted in weight gain and the use of opioid medications, in turn causing his sleep disorder, which in turn necessitated his purchasing of the machine.

In 2011, the parties went to trial on the issue of whether the defendant was required to pay for applicant’s sleeping machine.

At trial, the workers’ compensation Judge held that the sleep machine was a reasonable expense and included in the future medical treatment portion of the compromise and release, relying at least in part on applicant’s testimony as to his weight gain after his injury, but also on the opinions of his treating physician.  The WCJ ordered the applicant be reimbursed the $1,237.97 cost of the machine.

The WCJ rejected defendant’s argument that applicant was required to file a petition to reopen or that the compromise and release barred the claim because of the open medical clause.  The Court of Appeal and the Workers’ Compensation Appeals Board have rejected the defense’s appeal without much comment.

I don’t know if this is going to help me sleep any better.  After all, applicant gets to choose his primary treating physician, and can go up and down a defendant’s Medical Provider Network if one exists until he finds a PTP that is “agreeable.”  If an applicant, perhaps with the assistance of his counsel, finds such a treating physician, is there any sort of ailment or impairment that can not somehow be causally linked to the open medical award?

It’s entirely possible that the applicant in this case is honest, as is his physician, and his attorney.  Your humble blogger has never had any run-ins with any of them.  But, speaking generally, this seems like a weak point that can easily be exploited to enrich physicians and medical equipment providers, while providing free healthcare.