Transportation Expenses and 5402(c)

Saturday, June 19, 2004 | 0

Does the requirement that medical treatment be provided the employee within one working day of the filing of a Claim Form also require reimbursement of reasonable and necessary transportation (and other related) costs? If so, does such reimbursement count towards the $10,000 cap? And, if so, what if the transportation expense, incurred prior to denial of the claim, is presented for reimbursement after denial - is it still due and payable?

SB 899 introduced many changes to the California workers' compensation system, turned some long standing principals upside down, and created many new questions to be answered by the courts, by regulatory fiat, or a combination of both. In particular, the entire method of procuring and securing medical treatment has been reconfigured, and there are some attributes of the 'old system' that raise these lingering questions. While this article cannot be definitive, certainly a review of the interrelation between various attributes of the old system should give us some clues.

Reimbursement for medical transportation expenses is mandated by Labor Code section 4600 (a) and (e)(2), as amended, and as read together. It should be noted, that although the new LC 4600 is now broken into enumerated paragraphs, the language relating to expenses is the same as the section it replaced, thus interpretive case law on the section would likely be of value in analyzing such obligations under the new 4600.

LC 4600(a) mandates that "medical & devices and services, that is reasonably required to cure or relieve the injured worker from the effects of his or her injury shall be provided by the employer. In the case of his or her neglect or refusal reasonably to do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment."

LC 4600 (e)(2) provides that "regardless of the date of injury, 'reasonable expenses of transportation' includes mileage fees from the employee's home to the place of the examination and back at the rate of twenty-one cents ($0.21) a mile or the mileage rate adopted by the Director of the Department of Personnel Administration pursuant to Section 19820 of the Government Code, whichever is higher, plus any bridge tolls."

The language in 4600, "The mileage and tolls shall be paid to the employee at the time he or she is given notification of the time and place of the examination," is the same in both the new and old sections, and placed similarly as well.

Hutchinson vs. WCAB (1989) 209 Cal.App.3d 372, held that 4600 required the payment of mileage for trips to the pharmacy necessary to pick up prescriptive medication reasonably required to cure or relieve from the effects of the industrial injury. To that extent, the court specifically denounced the Board's earlier ruling in Rocha v. Workers' Comp. Appeals Bd. (1982) 47 Cal.Comp.Cases 896.

5402 (c) provides: "Within one working day after an employee files a claim form under Section 5401, the employer shall authorize the provision of all treatment, consistent with Section 5307.27 or the American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines, for the alleged injury and shall continue to provide the treatment until the date that liability for the claim is accepted or rejected. Until the date the claim is accepted or rejected, liability for medical treatment shall be limited to ten thousand dollars ($10,000)." (Emphasis added.)

Note that the legislature provided for "all treatment".

If we take the court's admonition in Hutchinson to heart that "[w]e must bear in mind that the underlying policy of the workers' compensation statutes and their constitutional foundation (Cal. Const., art. XIV, section 4), as well as the recurrent theme of countless appellate decisions on the matter, has been one of pervasive and abiding solicitude for the worker," then the conclusion is that mileage is indeed a part "all treatment" under 5402(c).

It is also likely that mileage is in fact a part of the $10,000 cap. 4600 provides that reasonable medical treatment includes mileage, thus such expense would be included under 5402(c), following this logic.

Is mileage incurred prior to denial still subject to reimbursement after denial? 5402(c) makes the employer liable for all medical treatment until the date the claim is denied. And, since medical treatment is a "reasonable" medical expense under 4600 and interpretive case law, the argument clearly seems to indicate that the employer is nevertheless liable for transportation, and related, expenses incurred prior to the date of denial.

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