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Change in the health care system could mean change for injured workers and medical treatment.

Whether they call it the Affordable Care Act (ACA) or “Obamacare,” it sparks a lot of strong opinions in polite circles. One person will argue that it is a crime that people have to go into bankruptcy to get lifesaving medical treatment in this country. They note that medical care should be available on a universal basis as a benefit of living in a civilized society. The next guy (or gal) will argue that under the ACA, their existing insurance rates are going to skyrocket and their treatment alternatives will be lessened. Furthermore, they point out that their personal freedom to choose to insure or not insure themselves has been hijacked.

The ACA is the most significant change in medical treatment programs in the US since the enactment of Medicare some fifty years ago. Personally, just reviewing the index of the ACA made my mouse finger sore. As I scrolled down the headings, I couldn’t help thinking that the Act is a very ambitious program aimed at creating a system of medical coverage that will finally apply to all Americans. However, being the son of a conservative banker, I could not help but wonder how we as a nation will be able to afford it. Then of course, there is the lingering question of whether it is all going to work? This law, with the exception of our experience in Massachusetts and New York, is covering some serious new territory.

However, as practical matter, the ACA is the law of the land now. The Supremes have given it a clean bill of health. As a humble representative of folks injured on the job, my concern is how the ACA will affect my clients once they have settled their workers’ compensation actions.

Let’s face it, medical cover- age under the California Workers’ Compensation system has become socialized medicine’s evil twin. Is it about providing medical help for injured workers or limiting the costs insurance companies? Matters have been blurred since Arnold, the politician, descended on California like some vulture spawned in the primordial cesspool of comp hell. Furthermore, with the enactment of the Independent Medical Review provisions of SB- 863 (IMR) that old Jerry signed into law last year, things are a lot worse. My office has been flooded with IMR appeals since July 1, 2013, and there is no end in sight for this virulent strain of arm wrestling with insurance carriers over basic medical treatment issues.

So the burning question my clients have asked me is this: “Tom, under the ACA, can I cash out my medical rights under my workers’ compensation claim and get coverage for the same medical condition with an ACA policy?” Transitioning to an ACA policy would mean coverage for the “whole person” as they like to say in comp now. It would mean no more Utilization Review denials. No more zealous defense attorneys trying to cut off pain control in cases of catastrophic injury. No more BS! Or, a new master under the ACA, with an entirely new set of fiery hoops to jump through.

Traditionally in California, if someone wanted to cash out medical coverage on their workers’ compensation claim, they could look to coverage under group or private policies. Some exclusions apply. The California Patient’s Guide is a great resource for questions on coverage for preexisting conditions covered on policies written here in California. Check out Chapter five by Google searching: Calpatientguide.org/v.thml. It has a super run down on how coverage works for preexisting conditions for various policies written here in this state.

There are no guarantees in life and anyone cashing out medical treatment rights with an eye to using their group policy for coverage needs check the language in their policy and have a chat with their plan administrator be- fore they make the leap. One could always be faced with the prospect of a bad faith suit against a group insurance carrier to make them do the right thing.

If you will review the federal version ACA, you will find a scattering of provisions that deal with coverage for preexisting conditions. You are welcome to go to our website and read them yourself if you are a in the mood. Just go to thomasledgerwood.com and scroll to the articles tab. There you will find the “Readers Digest” version of the specific provisions dealing with preexisting conditions and a link to the text of the ACA (all 906 pages).

Personally, after reviewing the ACA, it certainly appears that there are no exclusions for preexisting conditions suffered on the job. Also, there does not appear to be any provisions in the law specifically addressing subrogation or creating any right to reimbursement as between the plans. There is no indication that this new law will lead to a set-aside situation although Medicare’s interests must still be considered in each case.

However, as one of my respected colleagues advised me, the truth is no one really knows how the ACA will play out. If some- one was thinking about cashing out their rights to receive medical treatment in their comp actions and depend on ACA coverage, it would be smart to review the Covered California booklet first: https://www.coveredca.com/news/ PDFs/CC Health Plans Booklet- rev1-8-6.pdf. Also, carefully reviewing a California issued ACA policy as it relates to underlying workers’ compensation injuries would be a must. As they say, the devil is always in the details.

Finally, a sober note to all, while  the ACA  totes  that  it  offers low premiums for individuals and families, these affordable premiums may be moot when you consider the deductibles and co- payments that are involved with these plans. In reading the fine print, you may find that the “affordable” plan that you selected may not be so affordable. For example, under the ACA’s “Silver” or midrange plans, studies in 6 states demonstrated that the aver- age deductible for each individual is $2,550.00…that is more than double the deductible that of employer plans! A consumer re- porting company also found that these new plans require patients to pay 40% on average for certain pricey prescription medications… medications used to treat many common, chronic diseases such as rheumatoid arthritis, multiple sclerosis and many others. So, choose your plan wisely…consider not only your monthly premiums, but also your coverage and your deductibles.


Thomas Ledgerwood
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Proprietor Ledgerwood Law Group