WCDefenseCA

Happy  Monday, dear readers!

Your humble blogger brings you the story of a bill today – AB 221.

Now, although this is a bill and not an amendment, my steel-like discipline is typically reserved work workers’ compensation litigation, so I can hardly resist the urge to post one of my favorite Simpsons clips (though it has graced these humble pages many times before)

Assembly Bill 221, introduced by Assembly Member Adam Gray (D-Merced), would bolster the somewhat lack-luster defenses employers and insurers currently enjoy in fending off medical treatment bills related to cumulative trauma claims.

How often have you had to open a file for a CT with medical treatment liability already attaching in the thousands?  For years, an injured worker may have received treatment for a condition only to magically discover that the condition was industrially caused right around retirement, resignation, or sometimes even termination of employment.

In deposition, the timeline of the claim is typically “I self-diagnosed myself as needing more money, and then the doctor confirmed my diagnosis and advised it is industrially caused.”

AB 221 would amend the Labor Code in a fairly modest way, which is something a humble blogger can get behind without much difficulty: for claims filed after 1/1/18, the employer is not liable for any medical treatment bills unless the treatment was authorized by the employer, the injury is accepted, the WCAB finds the treatment compensable, or the employee has undergone a PQME exam which found the CT was caused by work.  (Proposed subsection (i) to LC section 4600).

Additionally, the C&R resolving the case would have to be for over $25,000 “exclusive of the cost of past and future medical treatment.”

If AB 221 becomes law, non-workers’ compensation health plans might suddenly have an interest in inquiring about or investigating potential industrial causation to avoid running up a huge treatment bill without a way to collect on it.  After all, an employer’s perfectly valid MPN is of little use when the claim is opened with most of the treatment already provided.

But, dear readers, picture this scenario – applicant files a CT claim but has received a healthy helping of treatment to date, and TTD is not really a pressing issue: subsequent employment, retirement, whatever else is negating the sudden need for TTD benefits.  So long as the claim is denied and the C&R properly documents that no more than $25,000 of the proceeds are for TD, PD, and (possibly) the voucher,  doesn’t it look like all those private health insurance liens are barred?

And, once the applicant has his check, how is the lien claimant going to get him to attend a QME exam?

Of course, presumably, the lien claimant could try to get reimbursement by proceeding with [proposed] section 4600(i)(3): “[t]he appeals board, after an evidentiary hearing or stipulation of the parties, finds the injury to the body part or body parts for which treatment was provided was compensable.”  But, in that case, aren’t you looking for a determination on AOE/COE?  If so, presumably, due process would entitle the defendant to request a panel and to defer a determination until a QME examination can be conducted.  Since the allegedly injured worker is unlikely to submit to a PQME examination, wouldn’t this defer resolution of this issue indefinitely?

Let’s keep an eye on AB 221, dear readers – it will be interesting to see how it evolves on its way to the Governor’s desk, if it gets there at all, and what we can expect to play with come 1/1/18.