The Supreme Court addressed whether the V.A. had a right to intervene, and reversed opinions of the circuit court and the court of appeals which denied intervention. V.A. v Boresi, 2012 Mo. App. Lexis 341. The court concluded that federal law was controlling and that 38 U.S.C. § 1729 allowed an unequivocal right to intervene in any action brought a veteran covered under a worker’s compensation law or plan. The Supremacy Clause trumped any state comp law. The Missouri comp law had no provision for intervention in these circumstances, and the civil rules for intervention under Rule 52.12 did not apply. The Supremacy Clause is not exactly new ground for anyone who remembers anything about Constitutional Law.
The problem is that as a practical matter federalization of comp chips away at the employer’s state rights to designate a medical provider. In this case there is no allegation that the employer failed or refused to provide treatment. The court of appeals found there was no refusal or denial. The Supreme Court leaves that issue unresolved. The V.A. states it doesn’t know one way or the other. The decision allows the V.A. to intervene, and kicks the can down the road whether the V.A. can actually collect anything. The court rejected the defense that the V.A. really had any meaningful pleading requirement to show it had any right of recovery except that it had provided services and can assert that someone’s got to pay.The court of appeals found that if the V.A. had no right to collect benefits since the treatment was not authorized and it had no right to intervene. Judge Romines indicated: “even if the VA was allowed to step into Hollis' shoes, the VA would still not be entitled to receive payment. Thus, the federal statute cannot supply the VA with a right to intervene.”
The takeaway is that attorneys for both sides need to pay more attention to the potential for V.A. claims whether or not a lien has been asserted. As parties in comp have seen whenever the federal government gets involved, as in Medicare reimbursement, it grinds down the process and has unintended consequences. Adding another chair at the negotiating table for the V.A. could easily have the same effect of delays from fighting over liens involving unauthorized treatment and payment of conditions unrelated to work injuries.