A recent court case, Howell, has held that a medical bill is only to be recognized by the court as ordinary and reasonable if it has been paid by the insurer or other responsible party. Due to the deep discounting many such bills get (sometimes up to 95%), a plaintiff’s recovery would be thus limited and not reflect the true value of the services provided or the injury incurred. Some would argue that a judge, arbitrator or jury awarding only 5% of a claim is a travesty. This is especially so, since in our state-wide practice representing industrially injured workers who are terminated or otherwise treated adversely then find a reduction in their emotional distress damages since triers of fact routinely rely on “specials” to determine emotional distress. Pushed far enough, it can also result in a jury lowering economic wage losses.
What is the solution, then? Many law firms now request that medical providers work on a lien basis. Quite simply, this means that the lien is not paid off unless and until the client recovers on his underlying case. Thus, at the time of trial, the full amount of the medical bill is in play and a jury can rely on it as evidence of reasonable and necessary (at least as to the amount) treatment.
In employment law cases such as wrongful termination, discrimination, whistle blowing, retaliation and harassment, including sexual harassment, our medical damages come from mental health treatment. Some of the most common diagnosis’ are post-traumatic stress disorder (PTSD), severe anxiety and depression. In many cases a worker has been terminated for an industrial injury, the employer mistakenly believing that compliance with the rules of the Workman’s Compensation Appeals Board is sufficient to protect them. This of course is a false belief, since an employer must comply with rules of the Department of Fair Employment and Housing, which requires dialog, accommodation and no discrimination against any injured or disabled workers.