reimbursement and aoe/coe (California)

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reimbursement and aoe/coe (California)

Postby feelin'it on Mon Oct 09, 2017 2:46 pm

Two claims say one in 2007 settled with open medical for knee, five years later another claim admitted by different employer/carrier eventually settled with open med same body part as D1. Well after D1's settlement and during the later claim D2 had filed a petition for reimbursement in D1's case due to the common treatment. I realize it's a medical issue to divide the medical liability between defendants. However, my question is whether D1 can also assert aoe/coe defenses on the D2 claim that D2 failed to assert in its own case. For instance say D2 had an obvious SOL defense that it failed to litigate when it could have, can D1 now use that as its own defense vs D2 that D2 basically mismanaged its claim? how would that work procedurally on the reimbursement claim.
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Re: reimbursement and aoe/coe (California)

Postby LawAdvocate on Tue Oct 10, 2017 8:41 am

Straight up contribution issue, not a reimburement issue unless there is a prior Order as to continuing reimbursement. All issues become a trial de novo, the defendants both get to Monday morning quarterback each other on all issues and yep, AOE/COE, SOL, and all other threshold issues are now triable for both. '

Word of caution, as D1 has everything to lose if you cannot point to a specific non-industrial trauma that caused the need for medical treatment, so your logic and fact presentation as to D1 not wanting to share all those costs is nonsensical as D1 may be stuck with all of the medical costs unless again there are missing facts in the scenario, if you prevail on AOE/COE and the statute as D1 you owe 100%. So why would D1 litigate? You get to split it at least 50-50 and save your client a ton of costs?

It should be the other way around with the subsequent carrier trying to re - litigate D1's positions.
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Re: reimbursement and aoe/coe (California)

Postby ozzie on Fri Oct 13, 2017 12:51 pm

LawAdvocate is usually pretty good on the issues, but I have to respectfully disagree that the post is "contribution," and not "reimbursement."

Contribution only applies under Labor Code 5500.5 in a situation of occupational injury or cumulative trauma. That section limits liability to those employers who employed the employee "immediately preceding either the date of injury, as determined pursuant to Section 5412, or the last date on which the employee was employed in an occupation exposing him or her to the hazards of the occupational disease or cumulative injury, whichever occurs first." Subsequent to 1981, the period is limited to one year.

If you research the issue you will not find a Labor Code nor even a civil litigation code in this state addressing reimbursement, because reimbursement is an equitable issue, not a "code" issue.

The leading case on the issue is Supervalu, Inc., v. Wexford Underwriting Managers, Inc., et al., (2009) 175 Cal. App. 4th 64; 96 Cal. Rptr. 3d 316; 2009 Cal. App. LEXIS 988

The basis for reimbursement is not a code section, but unjust enrichment, on a quasi-contractual basis:

“If an entity obtains a benefit that it is not entitled to retain, the entity is unjustly enriched. The aggrieved party is entitled to restitution, which is synonymous with quasi-contractual recovery. (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 1013, p. 1102.) “As a general rule, equitable concepts of unjust enrichment dictate that when a payment is made based upon a mistake of fact, the payor is entitled to restitution unless the payee has, in reliance on the payment, materially changed its position.” [ 175 Cal. App. 4th 64, 69].
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Re: reimbursement and aoe/coe (California)

Postby LawAdvocate on Sun Oct 15, 2017 3:10 pm

I stand corrected. I read this to fast it is reimbursement, but the same rationale applies.
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Re: reimbursement and aoe/coe (California)

Postby feelin'it on Mon Oct 16, 2017 3:49 pm

thanks. i agree it's reimbursements b/c its two injuries. let me rephrase the hypothetical. say claimant has an open medical award and based on QME there are various "possibilities" for future tx up to and including "possible" shoulder surgery, and there is also a work restriction of no overhead work. he stops treatment for 2 years, and then tries to resume treatment under medical award. It is discovered that he's been working overhead in his own garage for past 2 years in (undisputed) violation of the work restriction, sustaining an aggravation necessitating x y z tx, including the surgery. Does defendant still own all of this treatment, even following an subsequent aggravation?
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Re: reimbursement and aoe/coe (California)

Postby LawAdvocate on Tue Oct 17, 2017 8:49 am

Yes. Based on the threshold premise - medical treatment is not apportionable so it is owed. If .00001% of the treatment is due to the industrial injury, ALL of the medical billing is payable.

There is no such theory that a violation of a work restriction limits your entitlement to future medical care. People have to do what they have to do to survive, this has been tried dozens of times - there are no work violation police. If it were not for defendant's injury, the injured worker would not have needed any treatment.
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Re: reimbursement and aoe/coe (California) (California)

Postby feelin'it on Tue Oct 17, 2017 10:47 am

whether .0000001 of treatment is due to the original injury is a medical-legal-factual issue. as I said the original future treatment was all "possible" treatment not certain. Violation of the work restriction is extremely relevant because once that happens, arguably there is now no way to determine what treatment would have been actually necessary by natural progression -- arguably a doctor could only speculate in which one then loses on the issue. As for the work restriction it's there for a reason, including to avoid a new injury. The future treatment assumes one stays within the restriction. One can violate the restriction in order to survive - but at his own risk.
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Re: reimbursement and aoe/coe (California)

Postby LawAdvocate on Tue Oct 17, 2017 1:40 pm

Show me the case where violation of a work restriction ever resulted in a loss of future medical care. But I am ready to learn. I have seen this ridiculous theory argued before and the only party who won was the defense attorney because they racked up the fees.

The entitlement to future medical treatment assumes nothing other than the medical opinion that due to the injury - future medical care is required or it is not required, regardless of activity or any number of us would be living in bubbles. It does not assume that the physician has a crystal ball and can possibly even list all of the physical acts that could aggravate the injury. I can pull a gallon jug of milk out of my trunk and throw out my industrially injured back, yet my work restriction is actually no lifting over 50 pounds.
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Re: reimbursement and aoe/coe (California)

Postby feelin'it on Tue Oct 17, 2017 2:36 pm

For one you're mis-stating the facts. Future medical is often stated as "possible" not certain - that means one is entitled to the "possibility" of treatment - and might get the treatment if he can further prove actual entitlement. Also I already told you the law: it's a medical opinion, without speculation, and an applicant's behavior and all other case by case circumstances are very relevant to that determination. That's why we have courts and judges, and lawyers. I'm sure someone out there can find you some law for you in which sought after treatment was found to be unreasonable by a court of law.
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Re: reimbursement and aoe/coe (California)

Postby LawAdvocate on Wed Oct 18, 2017 9:31 am

So no case law to support your theory. Just a defense attorney churn to make money despite the ridiculousness of the theory.

That is what I thought. All talk and no substance. Ridiculous theory and unnecessary litigation, typical bologna.

I hope your client doesn't fall for it.
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