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.
