• Richard Morgain

COLLATERAL SOURCE AND WORKERS' COMPENSATION: MEDICAL BILLS OR MEDICAL CHARGES?

On May 8, 2019, in the case Kerry Simmons v. Cornerstone Investments, LLC, the Louisiana Supreme Court ruled that the "collateral source rule" does not apply to medical bills paid by workers' compensation insurance.  What that means is, when you sue someone else in tort (not workers' compensation) for injuring you and your workers' compensation carrier pays for your medical bills, the evidence that goes into the trial will not be what you were billed but rather what your insurance paid.  This is a significant difference from when, for instance, your private medical insurance or Medicare pays for your bills - in those cases, the court will take into evidence the entire amount of the billed charges.

My Take:

In all honesty, this has been coming.  As a matter of course, I have advised the firms I work with for some time to assume that the only charges that will make it to the jury will be those paid by the compensation insurer in comp cases.  The La. Supreme Court made it clear some time ago that in Medicaid (not Medicare) cases this would be the rule, specifically because Medicaid isn't a bargained-for benefit that the collateral source rule was designed for.  The entire idea of the collateral source rule is that the defendant shouldn't get the benefit of the plaintiff having paid for insurance for just such an occasion - instead, the defendant should have to pay the full amount of the charges, with the understanding that the overage is sort of to reward the plaintiff for paying for insurance to protect himself or herself.  Comp is paid for by the employer, generally - in any event, it is not a depletion of the plaintiff's patrimony and therefore not unreasonable for the employer to benefit from it as much as the plaintiff.  And that's what many of us knew was coming down ever since the Medicaid rules were clarified in this context.

My Advice:

For plaintiff's lawyers? File this away.  If the only evidence you have of medical charges is the set of charged amounts, you could get in serious trouble at trial when these are excluded.  Make sure you have a printout of detailed medical payments from the insurer before trial and list it as an exhibit. 

For intervenors and lienholders? Get involved and make sure the worker's lawyer has what she or he needs before trial.  If you want your money back (minus a Moody fee) this is one of the best weapons you can arm us with on a universal basis.


For clients? Make sure you have a lawyer who has handled cases with comp involved - or that she or he has someone in the office or as a partner who has.  And that the lawyer cares enough to keep on top of what's happening in the law.    


I represent clients individually and partner with other attorneys on cases involving workers' compensation liens. I am available to help.


Rick Morgain

The Morgain Firm, LLC

504-813-2517

© 2019 by The Morgain Firm, LLC.