Alan Gurvey...said he was surprised by the liens in part because a person with CalVCB in 2017 said the only time the agency seeks reimbursement is to prevent double recovery. “Apparently, all the correspondence with them in April 2017 has been swept under the table and they are starting over”...“I don’t think this will go over big with the (San Bernardino) Assembly members or the administrative director, for that matter, especially if we remind everyone what representations were made two-and-a-half years ago.”
By Greg Jones. Originally published at WorkCompCentral.
The California Victim Compensation Board, which provided hundreds of thousands of dollars to victims of the December 2015 terrorist attack in San Bernardino, is trying to recoup by filing liens against county workers’ claims.
Two liens filed Oct. 29 demand more than $180,000, of which more than $150,000 is for “income loss,” according to documents filed with the Workers' Compensation Appeals Board.
WorkCompCentral found 10 more liens filed Oct. 29 and Oct. 30 against workers’ compensation claims filed by San Bernardino County workers. The total claimed value for all liens filed by CalVCB at the end of October is $717,634.
The liens surprised a county official, as well as an attorney representing county workers who have filed claims for injuries suffered during the Dec. 2, 2015, terrorist shooting at the Inland Regional Center that killed 14 and injured 22.
Applicants’ attorney Alan Gurvey, managing partner of Rowen, Gurvey & Win, said he was surprised by the liens in part because a person with CalVCB in 2017 said the only time the agency seeks reimbursement is to prevent double recovery.
“Apparently, all the correspondence with them in April 2017 has been swept under the table and they are starting over,” Gurvey said in an email. “I don’t think this will go over big with the (San Bernardino) Assembly members or the administrative director, for that matter, especially if we remind everyone what representations were made two-and-a-half years ago.”
The California Victim Compensation Board is a state program that uses federal funds, penalty assessments, criminal fines and restitution payments to reimburse victims who suffer physical injury or the threat of physical injury as a direct result of violent crime. According to its website, the board covers expenses including funeral and burial costs, income loss, medical treatment, mental health services and relocation.
The CalVCB website also notes that the board can reimburse victims for crime-related expenses only when there are no other sources of reimbursement. CalVCB says it must be reimbursed for payments made to a victim who later receives money through a judgment, award or settlement.
“All forms of workers’ compensation may be subject to repayment and/or a lien, including but not limited to: temporary disability; permanent disability; proceeds of a compromise and release; (or) the far end of the stipulation with request for award,” the CalVCB websitereads.
After U.S. Rep. Pete Aguilar, D-San Bernardino, in December 2016 arranged $4 million in federal funds to provide mental health treatment and other services for the county workers, CalVCB in May 2017 sent survivors a letter informing them that it could provide assistance with expenses including medical treatment claims that are pending or on appeal through the county’s work comp program. The letter said the payments would “not jeopardize your future workers' compensation and settlement benefits.”
In another section, the letter informed the survivors that CalVCB can handle reimbursement “by filing a lien against your settlement for the amount CalVCB paid out on your behalf.”
CalVCB attorney Kevin Kwong, in an April 17, 2017, email to Gurvey, said the agency does not seek reimbursement for any benefits “unless workers’ compensation makes a payment on the same loss that CalVCB has already paid for.”
“CalVCB only seeks repayment if the victim receives a double recovery for the same loss — situations where a victim or provider has been paid by both CalVCB and workers’ compensation for the same bill,” Kwong wrote in another email sent to Gurvey on April 20, 2017. “If there is no double recovery, then CalVCB does not seek repayment. Further, CalVCB has statutory authority to reduce and waive its liens and commonly utilizes this practice when necessary to aid victims.”
An “original bill” CalVCB filed Oct. 29 with a lien demanding $116,512 lists 58 payments made between January 2016 and April as either “income loss” or “medical." Income loss accounts for $95,986 of the total claimed amount. The “Itemized Statement Justifying the Lien” classifies the service category for each line item as “medical.”
The original bill for another lien the board filed Oct. 29 demanding $65,373 lists 52 line items for payments made between January 2016 and October 2018. The payments are categorized as “health benefits,” “income loss,” “medical premium payment” and “mental health services.”
Income loss accounted for $56,509 of the total amount CalVCB seeks to recover. While the payment for mental health services is categorized as mental health on the itemized statement, the income loss, health benefits and premium payments are all classified as medical services.
Mary K. Thomson, manager of the Office of Policy and Planning at CalVCB, said in an email that generally speaking, the board can grant monetary compensation equal to the loss of income or loss of support that a crime victim suffers as a direct result of his or her injury. CalVCB can also reimburse an applicant for health insurance premiums and pay for alternative medicine, which may not be covered under a victim’s insurance plan.
Thomson said she couldn’t provide additional information about the payments and could not answer the question of when the payments CalVCB made would be subject to a lien.
“CalVCB cannot provide an answer to such a hypothetical question, as there are a myriad of circumstances in which CalVCB payments may become subject to a lien,” she wrote.
At least some of the payments appear to either supplement temporary total disability or continue providing wage-replacement benefits after a worker hits the 104-week limit for TD.
San Bernardino County in June 2018 published a reportoutlining its response to the terrorist attack, saying a substantial number of claims to CalVCB were related to lost income.
“County employee victims eligible for workers’ compensation could receive temporary disability compensation that covered up to two-thirds of salary losses,” the report reads. “Compensation from CalVCB helped to make their paycheck ‘whole.”
The county’s report also highlighted the statutory cap on TD that allows workers to collect the benefits for up to 104 weeks in a five-year period.
“Once employees reach that limit, CalVCB became or would become the primary option for recovering lost wages,” according to the county’s report.
Applicants’ attorney Gurvey said that while liens filed by doctors typically don’t impact a worker’s settlement, his concern is that the CalVCB liens could be treated more like claims filed by the Employment Development Department or the Department of Social Services.
“These are liens that the defendant will often ‘pass on’ to the applicant and if defendant is potentially responsible to pay, even if negotiated, they will use it as a deal-breaker to either take as a credit against the applicant’s settlement or not settle at all,” Gurvey said. “If it becomes a credit, the applicant can lose out significantly.”
He also said that based on the description of payments in the county’s report, it doesn’t sound like any of the workers received duplicative benefits.
Temporary disability provides up to two-thirds of an injured worker’s salary, so any amount used to make the paychecks “whole” is not duplicative of anything provided through the comp system. Similarly, the Legislature has made clear its intention that injured workers should receive no more than two years of temporary total disability benefits in a five-year period.
“So, the workers' comp law only allows TTD for two years, and then the CalVCB is now going to go after the benefits that the law doesn’t provide for by taking from a settlement,” Gurvey said. “Not cool at all, especially given the words from the fund two years ago talking about duplicative benefits, which they are not.”
San Bernardino County was not expecting the liens, according to public information officer David Wert. He said this is the first time for the county that there’s been a relationship between CalVCB and county workers’ comp claims.
Wert said the county received the first batch of liens on Nov. 5 and others have been trickling in since then.
He said the county is discussing the liens with CalVCB, but he had no additional information to provide on Monday.