surgery liability (California)

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surgery liability (California)

Postby lacompfun on Fri Apr 19, 2019 7:40 am

Scenario:

Applicant sustained a knee injury at work. Accepted work injury claim and knee surgery.

Applicant might need revision surgery.

Applicant wants to close out the workers compensation case by C&R.

Question:

1. If applicant settles by C&R then has the revision knee surgery paid by his private health insurance can that carrier sue workers compensation carrier for reimbursement?
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Re: surgery liability (California)

Postby jpod on Mon Apr 22, 2019 8:39 am

Well that is an open ended question. Anyone CAN try to do many things so the strict answer is yes. But the effort would almost certainly be unsuccessful. It is also problematic that applicant could have his health insurer pay for the knee revision when the revision relates to the industrial injury which most, but not all, health insurers would not cover, since health insurance is for non-work related injuries. And if the health insurer is Medicare then Medicare would look to the MSA to cover the surgical costs. If the MSA was properly administered Medicare would pick up those costs, but if not, or an MSA was not done, then Medicare can deny coverage too.
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Re: surgery liability (California)

Postby LawAdvocate on Mon Apr 22, 2019 9:15 am

If applicant settles by C&R then has the revision knee surgery paid by his private health insurance can that carrier sue workers compensation carrier for reimbursement?

They can sue for anything, but they will not prevail. Once an injured worker settles their case via a Compromise and Release, the injured worker becomes liable for all forms of medical care related to their date of injury.

Most health insurance carriers consider this type of condition to then have become a pre-existing condition in relation to the next policy year after the settlement. They therefore, usually do not pursue anyone in these types of situations.
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Re: surgery liability (California)

Postby jpod on Tue Apr 23, 2019 12:29 pm

LawAdvocate:

Can you elaborate on how you get from point A, (the provision in the ACA which requires health insurers to cover pre-existing conditions) to point B (that the former forbids, or eliminates, health insurance policy exclusions for work related injuries)? Have you seen this happen in practice? Can you cite any authority?

If true it seems employers which self-insure for employee health insurance and retiree health insurance would be entitled to an offset or a discount, not a dollar for dollar offset but still a significant offset, to prevent double recovery.
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Re: surgery liability (California)

Postby vampireinthenight on Wed Apr 24, 2019 8:15 am

Realistically, IWs have been getting "double recovery" like this forever. I don't think the health insurance carrier would have standing to bring suit against the WC carrier in any sustainable venue. The correct venue would be the WCAB as a lien on the WC case, which would be precluded as the services were provided post-C&R. The correct process would be to bill the IW, since they have the recovery. Of course, I don't know how that all plays out with ACA.
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Re: surgery liability (California)

Postby LawAdvocate on Wed Apr 24, 2019 9:01 am

Jpod - I have seen this happen forever, even in my own case. Yes, since pre-existing conditions are accepted, you just wait one policy year - about the time of your open enrollment and then treat for your work comp injuries. I fully expected a bill from my health care group, disclosed it was related to my work comp injury and was told no billing would be forthcoming as it was a pre-existing condition. My evidence in anecdotal, I have no cites and have not heard of an injured workers getting billed from their carriers. That doesn't mean it doesn't happen, but I personally cannot find an injured worker who has ever been billed by their private group health carrier.

This is kind of like CMS actually taking your receipts for your MSA - I tried to submit them on my mother's case and they sent them back to me, saying that they presume any MSA settlement under $100,000 is exhausted within 7 years. So I kept the letter and will use that if anything ever arises on my mother's Medicare. So there are all these hints at liabilities that are not really being pursued.
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Re: surgery liability (California)

Postby vampireinthenight on Thu Apr 25, 2019 9:13 am

That is the impression I get as well. Interesting about Medicare presuming the exhaustion of funds in 7 years.
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Re: surgery liability (California)

Postby lacompfun on Mon May 06, 2019 6:41 pm

Thank you...good information..
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Re: surgery liability (California)

Postby mvucurevic on Wed May 15, 2019 1:30 pm

What everyone is missing here as that the insurance carrier will eventually hire a 3rd party recovery company that will then request refund from the provider, or worse simply retract the payment from the provider. Their correct recourse should be to pursue the patient. I have only heard of one insurer going after a patient but that was because they provided false information and settled their work comp case less than a week prior to the surgery for their wc injury. Don't know how it was ever resolved.
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