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Industry Insights

Grinberg: No Lien Recovery on Unpleaded Body Parts

  • State: California

Pop quiz for you: Does a body part have to be pleaded or claimed by an applicant in order for him to receive medical treatment for that claim?

Gregory Grinberg

Gregory Grinberg

We touched on this a bit in an earlier blog post where a lien claimant psychologist could not recover when the application never alleged psych as part of the claim. Well, the same result was reached in the panel decision of Jiminez v. Yang Wu International Inc.  Lien claimant sought recovery for dental medical treatment, but applicant never alleged dental/jaw/tooth injury, although he did claim injury in the form of various orthopedic and respiratory conditions.

A compromise and release was reached and approved by a workers' compensation judge, but there was no dental injury pleaded in the original application nor in the C&R.  The WCJ found no liability on the part of defendant for the dental medical services, and the lien claimant appealed. In affirming the WCJ’s ruling, the Workers' Compensation Judge noted that the underlying medical report did not address why the dental medical treatment “was reasonably required to cure or relieve applicant from the effects of his industrial injury.” 

Central to this reasoning was that the lien claimant bore the burden of proof, and merely showing that medical treatment was provided is insufficient. 

The WCAB rejected the theory advanced by the lien claimant that the (alleged) fact that “defendant had notice of the claim of dental injury” was in any way relevant to the analysis. 

The reasoning is sound, of course, but imagine if a contrary finding was reached: The mere existence of an industrial injury would render the employer liable as a general health insurer for anything and everything that ailed the injured worker. Would an admitted back injury give rise to liability for orthosis for a preexisting hand injury? 

Aside from the good result for the defense, this case is a valuable reminder to us all that pleadings matter and should be examined in detail, both at the inception of the case and in contemplating which body parts to include in the C&R.

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.

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