Whether settlement is via stipulated award or compromise and release, one of the most common impediments for defendants is valuing exposure for lifetime medical care.
Applicants will frequently make overvalued settlement demands by valuing medical care for a body part over applicant’s lifetime. If surgery is a possibility, the defendant can expect a grossly overvalued demand. Many are under the impression that industrial body parts always warrant lifetime medical care.
However, there is a method for limiting medical care that can be used as leverage in negotiating settlements. This article addresses some myths about medical care awards.
MYTH: PREEXISTING CONDITIONS ARE ALWAYS COVERED IF NECESSARY FOR TREATING THE INDUSTRIAL CONDITION
The first myth is that when an applicant has a preexisting condition, all industrial treatment must cover that condition if it is necessary for treating the industrial condition. This is simply not necessary in many cases.
For example, weight loss is a common example of this. An applicant who needs to lose weight to treat an industrially-injured back may claim that weight loss treatment is required on an industrial basis. Another example is diabetes, where an applicant claims that their diabetes must be treated in order to treat their industrial condition.
This position is based on Granado v. WCAB (1968) 69 Cal.2d 399, which held that medical care cannot be apportioned. Therefore, if the industrial injury causes 1% of the need for medical care, all medical care for that body part/condition is industrial.
However, the WCAB has held that preexisting conditions are not always subsumed by industrial conditions. In Reff v. WCAB (2011) 76 CCC 1233, the applicant claimed that she contracted occupational pneumonia which affected her pre-existing and dormant common variable immune deficiency. She claimed that this caused a need for lifetime medical treatment of immunoglobulin deficiency replacement injections. The trial judge agreed and awarded lifetime injections.
Defendant appealed, and applicant argued that any aggravation of a preexisting condition by an industrial injury placed liability for treating the preexisting condition on defendant.
The WCAB reversed and concluded that the industrial injury only triggered a temporary need for industrial treatment of the preexisting condition. Therefore, a lifetime award of treatment for the preexisting condition was inappropriate. The WCAB concluded that the correct standard is whether “the normal progression of the nonindustrial disease or condition would have resulted in disability regardless of the industrial injury.” (Emphasis added.)
In other words, if the pre-existing condition would have caused disability, with or without the industrial injury, it should not be deemed a compensable injury requiring an award of lifetime medical care.
The WCAB further noted that if “the medical treatment or medication in question is required separate and apart, or independent of, an industrial injury or condition, then the employer may avoid liability.” The medical evidence in Reff showed that applicant’s immune deficiency caused a need for only two month of industrial treatment, after which the condition returned to its pre-industrial injury baseline. Therefore, a lifetime award of medical care for the immune condition was inappropriate.
Defendants should carefully examine the medical evidence and determine whether an applicant suffered a temporary aggravation of a preexisting condition, or whether it was a permanent aggravation (which may justify a lifetime award of medical care). If a preexisting condition can be treated temporarily and brought to a pre-industrial injury baseline, then lifetime treatment on an industrial basis is not required.
In Boehm & Assoc. v. Workers’ Comp. Appeals Bd. (Dowell) (1996) 61 Cal. Comp. Cases 494, 495 (writ denied), applicant sustained an industrial injury to his lumbar spine (sprain) and treated with a chiropractor. X-rays confirmed there was no disc herniation. Applicant was awarded future medical care for his lumbar spine. He then retired but sustained a “flare-up” while chopping wood and underwent spinal surgery.
Kaiser sought to recover on its lien for the surgery, arguing that the surgery was the result of the industrial injury and covered under the future medical care award. The judge denied this claim and Kaiser appealed.
On appeal, the WCAB held that the lumbar strain was not a substantial cause of the herniated disc and need for surgery. The WCAB explained that the rule set forth in Granado precludes apportionment of medical care when it is impossible to separate a non-industrial and industrial need for treatment. In Boehm, however, it was possible to separate the industrial and non-industrial need for treatment, and the reasonable medical basis for doing so was described by the defense QME.
MYTH: AWARDS OF FUTURE MEDICAL CARE MUST COVER “ANY AND ALL” SUBSEQUENT CARE FOR THAT BODY PART
The second myth is that an award of medical care must cover any and all subsequent medical care for that body part, subject only to utilization review and IMR.
In reality, the WCAB may award medical care limited to a specific modality, such as chiropractic treatment or medication. In Kaufman v. W.C.A.B. (1969) 273 Cal. App. 2d 829, the judge awarded lifetime medical treatment but specified the type of treatment (medical equipment, etc.). The Court of Appeal held that the WCAB had the power to specify the treatment the employer must furnish.
Similarly the Board may make a provisional or precautionary award that the injured worker may need further treatment for a limited basis. (Ingram Micro v. Workers’ Comp. Appeals Bd. (Wright) (1994) 60 Cal. Comp. Cas 50 (writ den.); Lackey v. Workers’ Comp. Appeals Bd. (1989) 54 Cal. Comp. Cas 280 (writ den.).)
Finally, many defendants are unaware that they may petition to terminate medical care. Therefore, when medical evidence shows that the condition no longer requires medical care, a petition to terminate may be appropriate. However, Labor Code § 4607 provides that an applicant who successfully defends against a petition to terminate a medical award is entitled to attorney’s fees.
SUMMARY AND RECOMMENDATIONS
As shown above, the myth of unlimited and unrestricted lifetime medical awards has pervaded the workers’ compensation system. Defendants have provided lifetime medical care based upon the assumption that applicants will require unlimited lifetime medical care, subject only to utilization review.
Instead, the WCAB can limit future medical care. Once an aggravated nonindustrial condition has returned to its pre-industrial injury status, medical care should be procured on a nonindustrial basis. Moreover, stipulated awards, subject to the WCAB’s approval, can limit future medical care in appropriate circumstances. Finally, future medical care can be limited to specific modalities and treatments, if supported by medical evidence.
A back sprain may result in the need for limited chiropractic treatment, but a fusion 10 years after a sprain should be treated on a nonindustrial basis. When a defendant evaluates a PQME report addressing future medical care, adjusters should consider whether the QME can prescribe limited future medical care. Leaving a vague award of lifetime medical care for a particular condition, without clarification as to the extent and duration of treatment, invites unwarranted expenses.
Michael P. Burns is a Partner at Bradford & Barthel’s San Jose location. Before joining B&B, Mr. Burns practiced civil litigation and employment law. He currently serves as an arbitrator for the Santa Clara County Bar Association’s Fee Dispute Resolution Program. Since joining B&B, his primary areas of practice include workers’ compensation and subrogation. Mr. Burns can be reached at firstname.lastname@example.org or (408) 392-8202.
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