DENIED CLAIMS AND SELF-PROCURED MEDICAL TREATMENT
By Richard J Boggan JD
Summary of Denied Cases
Initially cases are denied and then the medical legal dance takes place. The case in chief is
then resolved in the majority of cases with a “Thomas Finding”, which states in the settlement
documents in legally sufficient grounds that if the case was to be tried on the merits of the case
that the applicant would take nothing, in other words he or she would lose the case..
Now it does not mean that the statement of the “Thomas Finding” is true nor that the evidence
exists, it is just a statement that if proven true then the applicant would take nothing on the case.
The defense may state a “Post Termination Defense” but it is shown that the applicant quit
instead of being terminated then the “Thomas Finding” would be invalid and the medical provider
gets paid his usual and customary fees or if the injury was reported before termination (look at
the medical report as it will give a brief history of how the injury happened.)
The defense may state that they have a witness who will state that the applicant told them that
the injury happened outside of work, but the defense may be unable to produce the witness at
trial or the witness may be misinformed, or the statement is misstated then the medical provider
gets paid his or her usual and customary fees.
The defense may state that the applicant failed to report the accident, then it is discovered he
was treated by the defense doctor on the date of accident (which is a real case) then the medical
provider gets paid his usual and customary fees.
There are many more examples where a “Thomas Finding” is stated in the settlement documents
where the provider gets paid his or her usual and customary fees, a large majority of the time.
What happens when a case is denied than the Case in Chief is resolved with a “Thomas
Finding”? What normally happens is the Insurance Company offers the medical provider 10
cents on the dollar claiming it was a denied case and it settled with a “Thomas Finding”, normally
the provider will take such an amount. However, there are several different ways a case can
settle with a “Thomas Finding”, that would not effect the providers right to full reimbursement, of
which the defense would not offer such information, therefore knowing and understanding a
“Thomas Finding” is essential.
Denied to cumulative and admitted as to specific injury, the defense will state that the injury was
denied and settled with a “Thomas Finding”, but will not tell you that the specific was admitted of
which the provider probably treated for.
Denied for specific body part but admitted for other body parts, but defense will just state that the
case settled with a “Thomas Finding” even though the treatment the provider rendered was on
the admitted body part. It is important to know that for a body part that is connected to a another
body that was industrial injury but cannot be treated without treating the non-industrial injury, the
treatment for the non-industrial injury is compensable regardless of the “Thomas Finding,”
Post Termination
Preexisting injury
And more
The above list is only a few of the reasons cases are settled with a “Thomas Finding”, and still
entitles the providers to full payment of their medical bills, therefore, before you settle your
medical bills get a copy of the settlement documents and found out the bases for the “Thomas
Finding”.
The “Thomas Finding”, was initially decided with the injured worker in mind to prevent the worker
from signing away rehabilitation benefits for a settlement fee and then being without a marketable
trade or skill once the settlement, money was gone. The case held that in order for an injured
worker to sign away his or her rehabilitation benefits , that the defense had to state in legally
sufficient grounds if the case went to court the case would be decided against the
injured worker and he or she would have a take nothing order. The problem is that the case said
nothing at all about medical providers or lien claimants, and as such a great confusion for
medical providers as to its applicability to the payment of their medical bills existed when the case
was decided. This is where legal logic and applicability of a case law comes into play making
mandatory to understanding how to apply case law.
The defense attorneys who saw the case starting thinking well if the injured worker would take
nothing then it stands to reason that the injury did not occur or did not occur at the place of
employments and thus we should not be liable for any medical bills, which is correct in the truest
sense of the law. However, the only time it should actually apply to the medical provider is if the
injury never occurred and fraud or misrepresentation by the injured work has transpired with
sufficient proof to sustain of such a finding.
GANADO V. WORKMEN’S COMP. APP. BD. (1968) 69 Cal. 2d 399, 404 [71 Cal. Rptr. 678, 445 P.
2d 294]; states
as follows:
“There can be no doubt that medical expense is not apportionable. Neither section 4600 nor any
of the succeeding sections in the article of the code dealing with medical and hospital treatment
state or even suggest that the employer may pay part of the expense. So long as the treatment is
reasonably required to cure or relieve from the effects of the industrial injury, the employer is
required to provide the treatment, and treatment for nonindustrial conditions may be required of
the employer where it becomes essential in curing or relieving
from the effects of the industrial injury itself. Medical treatment unrelated to the industrial injury
need not be furnished by the employer. If medical expenses reasonably necessary to relieve
from the industrial injury were apportionable, a workingman, who is disabled, may not be able to
pay his share of the expenses and thus forego treatment. Moreover, the uncertainties attendant
to the determination of the proper apportionment might cause employers to refuse to pay their
share until there has been a hearing and a decision on the question of apportionment, and such
delay in payment may compel the injured workingman to forego the prompt treatment to which he
is entitled.”
THOMAS V. SPORTS CHALET, INC. (1977) 42 Cal.Comp.Cases 625, decided in bank (Thomas),
the Board held that exempt cases "are those . . . in which there is a good faith issue which if
resolved against the applicant would defeat the applicant's claim for all benefits. Examples of
cases exempted are those involving a legitimate issue of injury, employment, initial physical
aggressor, statute of limitations, and any other defense of this nature." The Board noted that
section 5100.6 prohibits compromises of benefits to which an "employee is
entitled under rehabilitation" (italics added) and therefore it is not "necessary to interpret Section
5100.6 to prohibit complete settlement in this [good faith issue] type of case." (42 Cal.Comp.
Cases at p. 633.) "By the manner in which it has qualified the term employee in Section 5100.6
the Legislature has made it clear that where the employee is injured and has an enforceable
right to workers' compensation benefits, the Board should not allow a release of either present or
future rights to rehabilitation." By "future rights to rehabilitation," the Board meant that "an
employee not initially in need of vocational rehabilitation may, through changes in
circumstances, become in need." (Ibid.)
Cases are settled or resolved in the following ways;
• Settlement: A workers' compensation case may be settled in one of two ways, by a
Compromise and Release (C&R) or by a Stipulation with Request for Award (Stip). A C&R usually
settles all outstanding issues in a claim for a single lump sum payment. A Stipulation may leave
certain issues open, such as future medical treatment and/or vocational rehabilitation.
• Findings & Award (F&A): A Workers' Compensation Administrative Law Judge's decision
finding that an applicant is entitled to disability benefit payments, future medical treatment, or
both.
• Findings & Order (F&O): A Workers' Compensation Administrative Law Judge's decision in
which no disability payments or future medical treatment is awarded.
• Stipulation with Request for Award (Stip): A settlement where the parties agree on the
terms of an award. It may include any future medical treatment. Payment takes place over time.
CURE AND RELIEVE" AND "CURE OR RELIEVE" ARE INTERCHANGEABLE.The Board held that
an applicant is
entitled to such medical treatment as is reasonably required to "relieve" from the effects of an
industrial injury,
even if such treatment will not "cure" that injury. Thus, THE PHRASES "CURE AND RELIEVE"
AND "CURE OR
RELIEVE" ARE INTERCHANGEABLE. Kenneth Grom vs. Shasta Wood 69 Cal.Comp.Cases 1567
December 8,
2004
Medical Treatment--WCAB, in significant panel decision, held that applicant was entitled to such
medical treatment as is reasonably required to ''relieve'' from effects of industrial injury, even if
such treatment will not ''cure'' that injury, when WCAB found that Labor Code § 4604.5(c) phrase
''cure and relieve'' is identical to, and interchangeable with, Labor Code § § 4600 and 4604.5(a)
phrase ''cure or relieve.
By Richard J Boggan JD
Summary of Denied Cases
Initially cases are denied and then the medical legal dance takes place. The case in chief is
then resolved in the majority of cases with a “Thomas Finding”, which states in the settlement
documents in legally sufficient grounds that if the case was to be tried on the merits of the case
that the applicant would take nothing, in other words he or she would lose the case..
Now it does not mean that the statement of the “Thomas Finding” is true nor that the evidence
exists, it is just a statement that if proven true then the applicant would take nothing on the case.
The defense may state a “Post Termination Defense” but it is shown that the applicant quit
instead of being terminated then the “Thomas Finding” would be invalid and the medical provider
gets paid his usual and customary fees or if the injury was reported before termination (look at
the medical report as it will give a brief history of how the injury happened.)
The defense may state that they have a witness who will state that the applicant told them that
the injury happened outside of work, but the defense may be unable to produce the witness at
trial or the witness may be misinformed, or the statement is misstated then the medical provider
gets paid his or her usual and customary fees.
The defense may state that the applicant failed to report the accident, then it is discovered he
was treated by the defense doctor on the date of accident (which is a real case) then the medical
provider gets paid his usual and customary fees.
There are many more examples where a “Thomas Finding” is stated in the settlement documents
where the provider gets paid his or her usual and customary fees, a large majority of the time.
What happens when a case is denied than the Case in Chief is resolved with a “Thomas
Finding”? What normally happens is the Insurance Company offers the medical provider 10
cents on the dollar claiming it was a denied case and it settled with a “Thomas Finding”, normally
the provider will take such an amount. However, there are several different ways a case can
settle with a “Thomas Finding”, that would not effect the providers right to full reimbursement, of
which the defense would not offer such information, therefore knowing and understanding a
“Thomas Finding” is essential.
Denied to cumulative and admitted as to specific injury, the defense will state that the injury was
denied and settled with a “Thomas Finding”, but will not tell you that the specific was admitted of
which the provider probably treated for.
Denied for specific body part but admitted for other body parts, but defense will just state that the
case settled with a “Thomas Finding” even though the treatment the provider rendered was on
the admitted body part. It is important to know that for a body part that is connected to a another
body that was industrial injury but cannot be treated without treating the non-industrial injury, the
treatment for the non-industrial injury is compensable regardless of the “Thomas Finding,”
Post Termination
Preexisting injury
And more
The above list is only a few of the reasons cases are settled with a “Thomas Finding”, and still
entitles the providers to full payment of their medical bills, therefore, before you settle your
medical bills get a copy of the settlement documents and found out the bases for the “Thomas
Finding”.
The “Thomas Finding”, was initially decided with the injured worker in mind to prevent the worker
from signing away rehabilitation benefits for a settlement fee and then being without a marketable
trade or skill once the settlement, money was gone. The case held that in order for an injured
worker to sign away his or her rehabilitation benefits , that the defense had to state in legally
sufficient grounds if the case went to court the case would be decided against the
injured worker and he or she would have a take nothing order. The problem is that the case said
nothing at all about medical providers or lien claimants, and as such a great confusion for
medical providers as to its applicability to the payment of their medical bills existed when the case
was decided. This is where legal logic and applicability of a case law comes into play making
mandatory to understanding how to apply case law.
The defense attorneys who saw the case starting thinking well if the injured worker would take
nothing then it stands to reason that the injury did not occur or did not occur at the place of
employments and thus we should not be liable for any medical bills, which is correct in the truest
sense of the law. However, the only time it should actually apply to the medical provider is if the
injury never occurred and fraud or misrepresentation by the injured work has transpired with
sufficient proof to sustain of such a finding.
GANADO V. WORKMEN’S COMP. APP. BD. (1968) 69 Cal. 2d 399, 404 [71 Cal. Rptr. 678, 445 P.
2d 294]; states
as follows:
“There can be no doubt that medical expense is not apportionable. Neither section 4600 nor any
of the succeeding sections in the article of the code dealing with medical and hospital treatment
state or even suggest that the employer may pay part of the expense. So long as the treatment is
reasonably required to cure or relieve from the effects of the industrial injury, the employer is
required to provide the treatment, and treatment for nonindustrial conditions may be required of
the employer where it becomes essential in curing or relieving
from the effects of the industrial injury itself. Medical treatment unrelated to the industrial injury
need not be furnished by the employer. If medical expenses reasonably necessary to relieve
from the industrial injury were apportionable, a workingman, who is disabled, may not be able to
pay his share of the expenses and thus forego treatment. Moreover, the uncertainties attendant
to the determination of the proper apportionment might cause employers to refuse to pay their
share until there has been a hearing and a decision on the question of apportionment, and such
delay in payment may compel the injured workingman to forego the prompt treatment to which he
is entitled.”
THOMAS V. SPORTS CHALET, INC. (1977) 42 Cal.Comp.Cases 625, decided in bank (Thomas),
the Board held that exempt cases "are those . . . in which there is a good faith issue which if
resolved against the applicant would defeat the applicant's claim for all benefits. Examples of
cases exempted are those involving a legitimate issue of injury, employment, initial physical
aggressor, statute of limitations, and any other defense of this nature." The Board noted that
section 5100.6 prohibits compromises of benefits to which an "employee is
entitled under rehabilitation" (italics added) and therefore it is not "necessary to interpret Section
5100.6 to prohibit complete settlement in this [good faith issue] type of case." (42 Cal.Comp.
Cases at p. 633.) "By the manner in which it has qualified the term employee in Section 5100.6
the Legislature has made it clear that where the employee is injured and has an enforceable
right to workers' compensation benefits, the Board should not allow a release of either present or
future rights to rehabilitation." By "future rights to rehabilitation," the Board meant that "an
employee not initially in need of vocational rehabilitation may, through changes in
circumstances, become in need." (Ibid.)
Cases are settled or resolved in the following ways;
• Settlement: A workers' compensation case may be settled in one of two ways, by a
Compromise and Release (C&R) or by a Stipulation with Request for Award (Stip). A C&R usually
settles all outstanding issues in a claim for a single lump sum payment. A Stipulation may leave
certain issues open, such as future medical treatment and/or vocational rehabilitation.
• Findings & Award (F&A): A Workers' Compensation Administrative Law Judge's decision
finding that an applicant is entitled to disability benefit payments, future medical treatment, or
both.
• Findings & Order (F&O): A Workers' Compensation Administrative Law Judge's decision in
which no disability payments or future medical treatment is awarded.
• Stipulation with Request for Award (Stip): A settlement where the parties agree on the
terms of an award. It may include any future medical treatment. Payment takes place over time.
CURE AND RELIEVE" AND "CURE OR RELIEVE" ARE INTERCHANGEABLE.The Board held that
an applicant is
entitled to such medical treatment as is reasonably required to "relieve" from the effects of an
industrial injury,
even if such treatment will not "cure" that injury. Thus, THE PHRASES "CURE AND RELIEVE"
AND "CURE OR
RELIEVE" ARE INTERCHANGEABLE. Kenneth Grom vs. Shasta Wood 69 Cal.Comp.Cases 1567
December 8,
2004
Medical Treatment--WCAB, in significant panel decision, held that applicant was entitled to such
medical treatment as is reasonably required to ''relieve'' from effects of industrial injury, even if
such treatment will not ''cure'' that injury, when WCAB found that Labor Code § 4604.5(c) phrase
''cure and relieve'' is identical to, and interchangeable with, Labor Code § § 4600 and 4604.5(a)
phrase ''cure or relieve.
| CALIFORNIA WORKERS COMPENSATION COLLECTIONS FOR LIEN CLAIMANT REPRESENTATION AND MEDICAL PROVIDERS |
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SELF-PROCURED MEDICAL TREATMENT AND GETTING PAID USUAL AND CUSTOMARY
FEES.
By Richard J Boggan JD
www.workcompliens.com
April 3, 2010
Prior to 2004, it was not difficult for a medical provider who took a denied case to get paid its
usual and customary fees when the claim was later admitted as industrially related. However,
over time and some recent case law getting paid usual and customary fees is not as clear cut as
it once was.
The case of CNA Ins. Cos. v. Workers' Compensation Appeals Bd. (Valdez), (1997) 62 Cal.
Comp. Cas. (MB) 1145, 1146: held as follow:
“Additionally, the WCJ again concluded that when an employer or carrier disputes a claim of
industrial injury and refuses for that reason to pay the charges of the treating physician, the
OMFS is not applicable if the injury is later found to be compensable and the physician is entitled
to payment of his or her reasonable, usual and customary charges”.
The “Valdez” case was not a “En Banc Decision” (A matter reassigned by the chairman on a
majority vote of the commissioners to the Appeals Board as a whole in order to achieve
uniformity of decision or in cases presenting novel issues). Nor was the “Valdez” case
“Significant Panel Decision” ,(cases that are identified for dissemination by the WCAB in order to
address new or recurring issues of importance to the workers' compensation community).
However, what the case represented was a legal logic that was hard to dispute. The awarding
the Lien Claimants’ usual and customary fees when a case is denied and later admitted is two
fold. First, to encourage medical providers to take the risk of not getting paid in treating an
injured worker when the claim has been denied therefore the award of usual and customary fees
ensures that the injured worker will be provided medical treatment while his claim is being
determined. Second, to ensure that insurance carriers do not arbitrarily deny a claim without a
good faith belief that the injury is non-industrial. If there were no deterrence in the carrier paying
usual and customary fees on a denied case as compared to an admitted case there would be no
deterrent for carriers from denying claims without merit.
Therefore, the award of usual and customary fees in denied cases later determined
compensable is one of the checks and balances that the Workers’ Compensation System has
kept in place to ensure the injured worker receives medical treatment even when his claim is in
question, and the medical provider stands the risk of not being paid.
There have been no case law or statue overturning the (Valdez), case, yet one will find few
judges enforcing usual and customary charges in denied cases later admitted, this may be
attributed to the “Kunz” case and the “Tapia” case and the assertion that the fee schedule has
been revised and updated to reflect reasonable fees. However, this does not take away from
the rationale in the “Valdez”, that being if the provider is taking the risk of not getting paid then
the benefits of getting paid if the claim is found compensable should be above the normal fees.
The “Kunz”case (2002 En Banc Decision) and the “Tapia” case (2008 En Banc Decision) , both
dealt with facts as to treatment prior to 2004 when no fee schedule existed for outpatient
services. However, they did set the ground rules for how to prove usual and customary fees
when one is asserting that the fee schedule is not applicable, not reasonable or when no fee
schedule exists for a particular service.
Kunz v. Patterson Floor Coverings Inc.,(2002) 67 Cal. Comp. Cas. (MB) 1588, 1598 held
“Although facility fees are not subject to the Official Medical Fee Schedule, any facility fee still
must be ''reasonable.'' (Lab. Code, § 4600.) In determining the reasonableness of a facility fee
(as with any medical treatment charge that is not subject to the Official Medical Fee Schedule),
the Board may take into consideration a number of factors, including but not limited to the
medical provider's usual fee, the usual fee of other medical providers in the geographical area
in which the services were rendered, other aspects of the economics of the medical provider's
practice that are relevant, and any unusual circumstances in the case. (See Gould v. Workers'
Comp. Appeals Bd. (1992) 4 Cal.App.4th 1059, 1071 [6 Cal. Rptr. 2d 228] [57 Cal. Comp. Cases
157, 165].)
Tapia v. Workers' Comp. Appeals Bd., (2008) 73 Cal. Comp. Cas. (MB) 1338, 1340; held
“We hold that, consistent with Kunz: (1) an outpatient surgery center lien claimant (or any
medical lien claimant) has the burden of proving that its charges are reasonable; (2) the
outpatient surgery center lien claimant's billing, by itself, does not establish that the claimed fee
is ''reasonable''; therefore, even in the absence of rebuttal evidence, the lien need not be
allowed in full if it is unreasonable on its face; and (3) any evidence relevant to reasonableness
may be offered to support or rebut the lien; therefore, evidence is not limited to the fees
accepted by other outpatient surgery centers in the same geographic area for the services
provided.”
Therefore, when a medical provider asserts that he or she is entitled to usual and customary
fees under the (Valdez), decision, the provider has to address the “Kunz” case and the “Tapia”
case and prove up its case as to what usual and customary is for their services..
The medical provider has the burden to show what its usual and customary fees are, at present
this is proving difficult for many providers and as a result the (Valdez) case has not been
adequately tested in the Courts in order revitalize the logical set forth in its decision. But,
(Valdez), is still good law and good legal logical that medical providers should assert.