“...what is truly bothersome is that the victims have no idea that they are being duped and that they have to pay back the money without really knowing how much and whether it was the right price for the treatment” Alan Gurvey
Published on 4/17/17 by WorkCompCentral, authored by Greg Jones
Survivors of the December 2015 terrorist shooting in San Bernardino who tap into the $4 million the Department of Justice last year allocated to provide mental health treatment, crisis counseling and other services could be forced to repay that money out of their workers’ compensation awards.
The California Victim Compensation Board is charged with distributing the money U.S. Rep. Pete Aguilar, D-San Bernardino, secured in December 2016. Last month, the board sent a letter to survivors of the attack saying that it can provide assistance with medical and mental health expenses that are pending, denied or on appeal through the county’s workers’ compensation program. The letter says the board can reimburse survivors so they don’t have to wait for treatment or to receive medication.
Payments will “not jeopardize your future workers’ compensation and settlement benefits,” the board said in the letter.
“However, in accordance with our standard policy, it’s important for you to know that if workers’ compensation later approves a settlement for you, you will need to repay CalVCB,” the letter says. “We can handle that by filing a lien against your settlement for the amount CalVCB paid out on your behalf.”
Sherman Oaks applicants' attorney Alan Gurvey, who provided a copy of the letter to WorkCompCentral, said he has several concerns with the idea that injured workers could face liens against their future benefits. One issue is that the letters were not also sent to attorneys in cases where survivors are represented in their claim.
Gurvey is representing three county workers who have filed workers’ compensation claims for injuries suffered in the terrorist attack. He said his clients didn’t fully understand the message conveyed in the Victim Compensation Board letter.
“But, what is truly bothersome is that the victims have no idea that they are being duped and that they have to pay back the money without really knowing how much and whether it was the right price for the treatment,” he said. “There are very few scenarios where liens are against compensation, so that is awful. Most liens are dealt with by the defendant at the end of the case and need to be negotiated.”
In a letter sent to the Division of Workers’ Compensation on April 7, Gurvey elaborated on his concerns.
Not all workers’ compensation settlements are resolved by compromise and release agreements, and an award can be issued for a permanent disability with future medical left open, he said. It would be unfair to require injured workers reimburse past medical costs from a benefit award, Gurvey said.
Furthermore, the amount that the Victim Compensation Board pays for medical treatment may not be based on the fee schedule rates.
To receive money from the compensation program, a victim must submit bills along with an application for compensation. In the case of medical treatment, the board can pay providers directly based on the bills provided by the applicant. An applicant can object to the board paying providers, in which case he or she would receive a check to pay for the expenses.
So if the provider’s bill is for a usual and customary rate rather than the reimbursement authorized by the fee schedule, injured workers could be in the position of having to reimburse the board for medical costs that exceed the amount that should be paid under the workers’ compensation system.
And Gurvey said it’s possible that the reimbursement owed to the board could exceed the amount a worker would receive in benefits.
“This is all to say that it certainly appears that the victims of the San Bernardino terrorist attack are once again being taken advantage of, and being duped into ultimately paying for treatment, which in many cases should have been authorized in the first place,” Gurvey wrote. “We have heard so much in the media about the delays and denials that took place over the first year after the attacks, and now we are told that these delays and denials are rare and not the norm. Maybe so, but the system through another arm of the state of California ought not be the cause of yet another obstacle in the face of the healing process and overall well-being of the attack victims.”
On Friday, Gurvey said San Bernardino County continues to push back against efforts to address concerns over treatment denials in a reasonable fashion. The county continues to use utilization review to deny treatment or, alternatively, refuse authorization on the grounds that a body part or condition was not accepted.
A bill the Assembly Insurance Committee is scheduled to hear Wednesday could address concerns over treatment denied through UR.
Assembly Bill 44, by Assemblywoman Eloise Reyes, D-San Bernardino, would exempt from UR and independent medical review requests for treatment provided to victims of workplace violence and terrorist acts.
Reyes on April 6 amended the bill to define acts of terrorism for the purposes of the exemption to include the unlawful use of force and violence to intimidate or coerce a government or people in the furtherance of political or social objectives. The bill also defined workplace violence for the purposes of determining when requests are exempt from UR to mean an assault against a person with a firearm or other dangerous weapon that results in serious bodily harm or psychological injury.
Reyes’ office didn’t return messages Friday. But the definitions appear to narrow the scope of the bill so that incidents such as car accidents that have been adjudicated to be violent acts would still be subject to UR.
Employers would still be able to challenge requested treatment they think is inappropriate, under the bill, but they would have to do so at the Workers’ Compensation Appeals Board.
AB 44 would require disputes over treatments for survivors of workplace violence and terrorist attacks to be resolved during an expedited proceeding held within 30 days of the filing of a declaration of readiness to proceed.
Gurvey said having workers’ compensation judges analyze requests, and review testimony and deposition transcripts, would be preferable to the current process of challenging treatments through independent medical review.
“I would agree to that in a second instead of the nameless, faceless hacks who are being paid peanuts and reviewing assistants' notes to make treatment decisions,” Gurvey said.
Julie Swann-Paez, a San Bernardino County employee who was shot twice in the pelvis during the attack, said an equally important provision in AB 44 would extend the duration of temporary disability for those injured by acts of terrorism.
The bill would allow victims of terrorist attacks and workplace violence to receive up to 240 weeks of temporary disability benefits, rather than the 104 weeks most injured workers receive.
Swann-Paez said some of her coworkers are still having surgeries now. Knowing that the two-year duration on indemnity benefits closes at the end of the year is causing more anxiety.
“The countdown is on,” she said.
She said she hasn’t seen any changes for the better or worse in how the county has been handling claims filed by victims of the shooting. She also said she hasn’t sought approval for anything since December, but she has an upcoming appointment and is waiting to see what the county does if her provider recommends any treatments.
“I’ll be pleasantly surprised if my doctor’s request is approved,” she said. “I’m preparing in my mind for a denial, but I hope they’re sticking to their word that they are going to get us what we need.”
Swann-Paez admitted to becoming somewhat “cynical” and said she thinks the county approved her treatment in December because it was facing media scrutiny over how it was handling claims at the time.