WCDefenseCA

Dark days, indeed, dear readers.  It just so happens that your humble blogger, in his cold, iron heart, has a pang of sympathy for the lien claimants.

Hold on, hold on! before you get to unsubscribing from the blog, burning my pictures in the streets in protest, and demanding that I return your subscription fee for all these years of your loyal readership (you get what you pay for, after all), hear me out.

Ponder, if you can, the case of Crispin Mendez-Correa v. Vevoda Dairy.  In that case, applicant self-procured medical treatment outside of a valid Medical Provider Network, and then the treatment provider came a-smilin’ with its bill.  The defendant naturally slammed the door in the lien claimant’s face and the matter proceeded before a workers’ compensation Judge.

The Workers’ Compensation Judge held that the defendant was not liable for the cost of the alleged medical treatment because of the MPN.  Accordingly, the WCJ put the lien claimant on the scent of the applicant, telling it to get its pound of flesh from the injured worker under Labor Code section 4605 (“Nothing contained in this chapter shall limit the ability of the employee to provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires.”)

Naturally, applicant became concerned – it’s one thing to play Scorched Earth and raise the costs for for the defense, tis another thing altogether to have to pay for such tactics oneself.

Well, upon his petition for reconsideration, the Workers’ Compensation Appeals Board decided that the date of the decision, May 13, 2013, shall henceforth be called “New St. Crispin’s Day,” and after a rousing and inspiring prelude, found, to some extent, both for the defendant and the applicant, although the meat of the holding appears to have been against the lien claimant for whom your humble blogger has some small amount of sympathy.

You see, the WCAB held that, because the lien claimant did not (or could not) prove that applicant intended to self-procure, section 4605 was not triggered.  At the same time, the defendant could not be held liable because of the valid MPN.  So, if the lien claimant cannot recover from the defendant and cannot recover from the applicant, it appears that the lien claimant cannot recover at all.

And here comes the most charming part of the opinion’s effect: lien claimants are repeat players, and know when there a self-insured employer or an insurance company has a valid MPN in place.  So, the lien claimant can risk going up against an MPN, or it can make the applicant sign a form acknowledging that the applicant is self-procuring.  However, if the applicant is knowingly self-procuring, as evidence by such a form or contract or note, then defendant is off the proverbial hook before the issue of an MPN is reached.

Buuuuuuuut… since no applicant is going to self-procure instead of treating for free within the MPN, the lien claimants can close their gold-plated, jewel encrusted, thieving, extorting, and workers’ compensation harassing doors.

Or, here’s another idea: let’s start treating liens like what they are, a lien on the recovery of the applicant.  Accordingly, when applicant settles a paper-cut claim for $50,000, let the cost of the $43 Neosporin and $65 Band-Aids for 35 consecutive visits come out of the recovery, as a lien would in any universe outside of workers’ compensation.

The long and the short of it is that when an injured worker is given access to an employer’s medical provider network, the non-MPN treators assist in the scorched earth and expert shopping of applicant’s attorney’s at their own peril.

And to think, if the lien claimant’s prices were reasonable to start, they would be part of the MPN and collecting on bills instead of litigating (and losing) them.

Sounds like being a lien claimant just got a lot tougher – oh how my heart bleeds for those poor folks!