Pre-injury liens? (California) (California)

The filing and enforcement of liens (different states refer to these with different terms) to secure payment for services or goods against a workers' compensation award is complex and filled with special rules - this category is for questions and discussion of this special area of work comp law.

Pre-injury liens? (California) (California)

Postby ozzie on Wed Dec 08, 2010 12:26 pm

Applicant files cumulative trauma claim for psychiatric stress resulting in hypertension, with ending DOI as 02/21/2008. Lien claimant arises near end of case who represents a health insurance carrier, claiming a lien for psych treatments in 2002, which is of course six years before the DOI. Refusing to dismiss, the lien claimant says there is existing case law allowing such a lien, but has not provided the case or citation.

Impossible, says I: how can treatment be claimed for an injury which has not yet occurred, or if it has occurred, has not yet been claimed and will not be claimed for 6 more years?

Finding it very, very hard to believe, I ask: what is the case supporting this bizarre concept? And what is the logic, even if there is no case?

(Put aside, for the moment, other defenses such as AOE/COE, laches, etc.)

How can it be possible? :?:
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Re: Pre-injury liens? (California) (California)

Postby jpod on Thu Dec 09, 2010 8:37 am

I can not help. The only way I could see the lien claimant having a leg to stand on is if that prior medical treatment and related documentation would support an earlier DOI under LC 5412. Unless that case law exists as claimed it would seem to be bad faith to demand settlement funds in the context of an insurance claim.
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Re: Pre-injury liens? (California) (California)

Postby stewshe on Thu Dec 09, 2010 6:14 pm

Ozzie,

I agree with jpod.

Also, I think your lien claimant is just "blowing smoke!"

Suggest you present lien claimant with two options:

1. Either find the case cite, or

2. Withdraw the lien.

I'd also advise if you are forced to try the case you will want sanctions to include your fee at your hourly rate. I do not believe the case they claim exists. It sounds to me like someone who thinks they can claim a case exists to support their position and they are so ignorant of how comp works in CA, they think that is enough!

I'd write them a letter, return receipt requested, giving them 30 days to search for a case...one you do not believe exists, and if they can't locate the case in that time, either dismiss their lien or file a DRP... or you will, claiming sanctions, etc. They are wasting your time, the WCJ's time, etc.

Good luck, and be sure to let us all know how this turns out! Two bits says LC will grab their marbles and run home to mama!

P. S. If I'm wrong, be sure to post the cite.

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Re: Pre-injury liens? (California) (California)

Postby ozzie on Fri Dec 10, 2010 4:50 pm

Lien claimant provided citations of supposed case law supporting lien for 2002 Tx for 2008 ct claim, and IMHO they have no bearing on my case. I'll upload the cases; they are interesting, since one was The Sup Ct case, Colonial, (1946) which held all employers liable for an industrial disease (silicosis) during the entire period of exposure, an appropriate result, and which led to the 1951 enactment of LC 5500.5, codifying the decision (in explicit language).

But 5500.5 was modified to limit to first 5 years, then one, for liability of the employer to the employee. The second cite from the Lien Claimant was for the Sup Ct case in 1979, Pedroza, which told the WCAB that by limiting the liability to 5 years, the Legislature had not meant that liability for the PD was limited to only the last 5 years apportioned out, but the entire PD, without any apportionment to prior years, again an appropriate result. (Those cases also said that as between employers, they could fight it out forever so long as the worker was taken care of. Still appropriate.)

But these two cases clearly do not stand for the proposition that medical treatment long preceding the date of injury could be made the subject of a lien.

Just smoke from the LC, but refusal to dismiss will led to a petition for sanctions. About which, see the thread on this section titled "what does it take to become a lien representative," in which some very interesting cases are posted.

The two cases the LC cited are, hopefully, uploaded here. ;)
Flesher-Lien Claimnts case for old treatments.doc
Flesher-Lien Claimnts case for old treatments.doc
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Re: Pre-injury liens? (California) (California) (California)

Postby ymcgavin@socal.rr.com on Sat Dec 11, 2010 10:34 am

Hi Ozzie, Stew, and Jpod,

OK, playing the devil's advocate, which is a hat I often don, I do see merit with lien claimant's position, and accordingly, I have to respectfully disagree with all of you. But, I do agree with Ozzie that this support is not found within the cases cited by lien claimant.

Ozzie, if I were your lien claimant, I would instead rely on LSG Sky Chefs v. WCAB (Naranjo), (2006) 71 CCC 298. I will provide a copy below.

Ozzie, it appears as though the Naranjo case is eerily comparable to the factual situation in your case. In Naranjo, lien claimant Kaiser provided treatment to applicant from 3/25/1996 through 10/13/2001. The applicant filed an application on 7/12/2000. Lien claimant sought reimbursement not only for treatment furnished subsequent to the filing of the application, but also for treatment provided prior to applicant filing the application.

WCJ Correio, a really smart judge, held that defendant was not liable for the treatment furnished by Kaiser, prior to the filing of the application, on the basis applicant "had knowledge of the industrial nature of his heart condition but did not give Defendant notice of his need for medical treatment and, thus, that Defendant had no opportunity to provide that treatment until Applicant filed his claim on 7/12/2000." (Ibid, at page 299)

On reconsideration, sought by the aggrieved lien claimant, the Commissioner's reversed WCJ Correio. The newly aggrieved defendant sought a writ of review, but the writ was denied by the appellate court.

Ozzie, as is pertinent to your case, the following observations are germane:

"On 6/6/2005, the WCAB granted reconsideration and amended the F&A to allow Lien Claimant reimbursement for the earlier medical treatment period from 3/25/96 to 6/15/2000, at OMFS rates, plus penalties and interest under Labor Code § 4603.2. The WCAB found, citing City of Fresno v. W.C.A.B. (Johnson) (1985) 163 Cal. App. 3d 467 [209 Cal. Rptr. 463, 50 Cal. Comp. Cases 53], that there was no evidence in the record to justify a finding that Applicant was aware that his employment was the cause of his heart attacks and his need for bypass surgery, as well as the other treatment he received prior to and through 6/2000. The WCAB noted that in the absence of medical confirmation, an injured worker could not be charged with knowledge that his or her disability or need for medical treatment was work-related unless, given the nature of the disability and the worker's qualifications, he or she should have recognized the relationship. The WCAB also noted that the burden was on Defendant to establish Applicant's knowledge of the industrial cause of his need for medical treatment. The mere fact that Applicant had stress from work and suffered an episode of chest pain at work is not sufficient to establish the requisite level of knowledge." (Ibid, at page 300)(underline emphasis added)

The Commissioners in Naranjo found support for the outcome in Simien v. IAC, (1955) 138 Cal. App. 2d 397. I will also attach a copy of Simien below.

In Simien, "Petitioner suffered from a head injury for which he procured surgery. He had not notified his employer that he had received such an injury in the course of his employment and the employer being unaware that such an injury had occurred had no opportunity to furnish the necessary treatment. Petitioner contends that he did not know and did not have the mental capacity to know or understand that he had suffered a service-connected injury which was responsible for his condition. He contends further that the physicians and surgeons whom he consulted did not know that his condition was of traumatic origin until that fact was disclosed by an operation. The commission denied reimbursement for the expense of this operation and incidental care." (Ibid, at pages 398-399)(underline emphasis added)

"Under section 4600 Labor Code, the duty of the employer is to furnish all medical, surgical and hospital treatment that is reasonably required to cure or relieve from the effects of the injury. This is a primary duty which imposes a liability from which the employer is not to be relieved except for good cause. The employee has a duty to inform his employer of any service-connected injury for which he expects to receive compensation, which includes treatment. If treatment, other than emergency treatment, is obtained by an employee when the employer has had no opportunity to furnish it because of lack of notice of the injury, the expense is not chargeable to the employer. But the primary duty remains. While it is in a sense suspended, the suspension exists only as long as the employer is without notice of the injury. (Columbia etc. Steel Div., U. S. Steel Co. v. Industrial Acc. Com., supra, 115 Cal.App.2d 862.)

The Legislature in providing for an exception to the employer's liability, which in the present case depends upon the failure of the employee to give notice of his injury, could not have intended that liability should be excused except in the case of some neglect of the employee to give notice or his refusal to accept treatment offered by the employer. If, before surgery, petitioner had actual or imputed knowledge of his service-connected head injury he forfeited his right to reimbursement by failure to notify his employer of the same, but if for any cause he had no such knowledge it would manifestly be unreasonable and unjust to require him to give notice which was impossible for him to give.
"
(Ibid, at pages 400-401)(underline and bold emphasis added)

This factual situation appears to be similar to asbestosis claims made decades after exposure, and decades after treatment was provided, but without the EE and physician arriving at a conclusion the symptoms were industrially caused. If the EE incurred TX expenses out-of-pocket prior to learning the asbestosis was related to employment, I am of the mindset the EE is entitled to reimbursement for the out-of-pocket expenses for the TX provided --- way prior to when the EE learned the asbestosis was work related and filed an application.

Ozzie, Stew, and Jpod, I think that lien claimant does have a leg to stand upon --- if lien claimant's hearing representative properly argues the applicable case law to the facts of this case.

York McGavin
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SIMIEN.pdf
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NARANJO-TX_PROVIDED_PRIOR_TO_FILING_APP_COMPENSABLE.pdf
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Re: Pre-injury liens? (California) (California)

Postby steve appell on Sat Dec 11, 2010 9:57 pm

Hi Ozzie, Stew, Jpod, and York:
Under LC 5412, the applicant may not have known until 2008 that the hypertension & psyche injury was work related even though his injury necessitated treatment in 2002. The treatment prior to the legal DOI would then be compensable. However, what I find even more interesting under this scenerio is Ozzie can then use this lien claimant argument and fact pattern to establish a "western growers" situation to push back the DOI 6 years or more which might be outside his client's coverage period.

Good Luck !
Steve

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Re: Pre-injury liens? (California) (California)

Postby ozzie on Sun Dec 12, 2010 11:15 am

York, thanks for the great case law, right on point! My internal logic told me that there was likely some good case law on point, since it seemed logical that in some types of cases, the knowledge of industrial causation might come long after the treatments had started. But the cases supplied by my lien claimant were inapposite, which was rather disappointing. So, you get the "Ozzie" for great research!

And Steve, you get an "Ozzie" for not only knowing about Western Growers, but actually understanding what it can be used for! I've had fun getting it applied to some of my cases....

Thanks to you both. It's nice to have a good source of well-informed and helpful peers out there.

:)
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Re: Pre-injury liens? (California) (California)

Postby stewshe on Sun Dec 12, 2010 4:53 pm

Ozzie,

One reason Western Growers vs WCAB (Austin) 21 CWCR 153, 58 CCC 323 is confusing is that to understand it, you first need to read the case, slowly, and THEN read the headnote. I don't recall the details, but the headnote does not track 100% with the holding in the case.

It sounds to me the defendant has only a cursory understanding of the issues or otherwise the ancient CT cases would not have been cited since they do not support the defendant's case.

I agree with York's analysis, as usual. I always appreciate his insight.

Bottom line is I question whether the defendant is going to be able to prove the exception, especially when the defendant doesn't seem to really understand CT very well.

Stew
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Re: Pre-injury liens? (California) (California)

Postby jpod on Tue Dec 14, 2010 12:24 pm

York, Steve, Stew & Ozzie:

Interesting...I agree the employee can not be held liable for failing to see the nexus between the injury and work, that is what 5412 is all about. But doesn't a medical provider have a much harder time making such an argument.

This leads to one of my pet peeves: why didn't the treating doctor issue a doctor's first report of injury within 5 working days of treatment for psych in 2002 as required LC 6409 and R&R 14300:

"...Every physician, as defiend in LC 3209.3, who attends an injured employee shall file within five days after initial examination a complete report of every occupational injury or occupational illness to such employee, with the employee's insurer or with the employer, if self insured. The injured or ill employee shall complete a portion of such report describing how the injury or illness occurred...."

Hasn't the failure of the PTP to comply in this case prejudiced the insurer/employer b/c for several years they were not able to investigate and mitigate damages for the injury claimed?
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Re: Pre-injury liens? (California) (California)

Postby ymcgavin@socal.rr.com on Wed Dec 15, 2010 8:17 am

Hi Jpod,

You asked: "Hasn't the failure of the PTP to comply in this case prejudiced the insurer/employer b/c for several years they were not able to investigate and mitigate damages for the injury claimed?"

We have to remember that the lien claimant in Ozzie's case is a health insurer, not the treating physician who provided treatment in 2002. That treating physician was a PCP, not a PTP, unless he/she opined that the psyche treatment was necessitated by the stress at work. If the PCP did not find the psyche treatment was a result of employment, or that employment contributed to the need for psyche treatment, there was no need for the PCP to file a DLSR Form 5021 as required by CCR 14003(a) and LC 6409.

One way to ascertain whether the psyche PCP had a duty to file a DSLR Form 5021 is to review the reporting from that PCP from 2002 onward. If the reporting from the PCP notes employment as a stressor, I would agree that finding would trigger the duty for that PCP to file the DLSR Form 5021. However, if that PCP found work as a cause of the stress resulting in hypertension, then that physician should have checked off the "yes" box in section "10 a" on the HCFA-1500 bill. If the physician checked off box "10 a" on the HCFA-1500 bill, generally speaking, this would have been a red flag for the health insurance carrier providing coverage under either a PPO or HMO policy --- resulting in non-payment to the psyche PCP, as most PPO and HMO policies forbid reimbursement for work related injuries. (Although we have all probably seen a HCFA-1500, I will attach a copy filled out for a fictional patient.)

As an interesting aside, if a DLSR Form 5021 is filed, and the WC carrier denies the claim AOE/COE, I am of the mindset that the PPO or HMO insurer is now obligated to pay for treatment until the case-in-chief resolves --- or else the PPO or HMO insurer is vulnerable to a bad-faith claim in the civil arena.

(On another note, I am now seeing Blue Cross of CA reimbursing for chiropractic treatment, for industrial injuries, after their insured has been capped out on an industrial basis due to the 24 treatment cap limitation found in LC 4604.5(d)(1) --- which is a perfect example of cost shifting from the WC carrier to the PPO or HMO insurer for industrial injuries, along with the ever increasing premium to the group health plan policy holder or the individual plan policy holder.)

Jpod, in short, unless the psyche PCP found work as a factor for the stress resulting in hypertension, that PCP had no duty to comply with CCR 14003(a) or LC 6409. Perhaps Ozzie can illuminate us, once he reviews the reports and billing issued by the psyche PCP --- which triggered reimbursement from the lien claimant health insurer --- as to whether the "yes" box in section "10 a" of the HCFA-1500s submitted by the psyche PCP were checked off.

York McGavin
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