Karl Steinberger, attorney at HSBA, PA., and with forty (40+) years of experience representing Employers & Carriers in worker’s compensation cases analyzed a new opinion from the Mississippi Supreme Court.  His analysis – “If you have been including the costs of EME’s and second opinions in liens asserted on behalf of the Intervenor in Third Party claims, you were correct but now you are wrong.”

In a case decided on May 30, 2024, the claimant, Ms. Brent, was injured in the course of her employment. She and her husband filed a third-party claim against Madated, LCC for negligence in the maintenance of the building. Ms. Brent was working in the building as an employee of a contractor.  During the course of the workers compensation claim, F. A. Richard, an adjusting company, required Ms. Brent to submit to an Employer’s Medical Examination (“EME”). The workers’ compensation claim was settled, and a lien was filed in the case against Mandated, LCC.  Included in the lien was $2887.50 for the cost of the EME.

Over the objection of Ms. Brent’s attorney the Hinds County Circuit Court and the Mississippi Court of Appeals found inclusion of the EME expenses to be reimbursable medical expenses.  Following the June, 2023 Court of Appeals decision clients were advised to include the EME expenses in their Third-Party liens.

On May 30, 2024, the Mississippi Supreme Court handed down its decision on the case and explained Miss. Code Ann. § 71-3-15 (1) requires Employers and Carriers to pay “reasonable and necessary medical expenses” in compensable cases.  MCA § 71-3-71 entitles Employers and Carriers to “repayment of the amount by them as compensation and medical expenses from the net proceeds of such action (after deducting the reasonable costs of collection).” The Mississippi Medical Fee Schedule, in accordance with Section 71-3-15,  requires employers to furnish employees with “reasonable and necessary medical” expenses.  The Fee Schedule states, “the concept of medical necessity is the foundation of all treatment and reimbursement made under MCA § 71-3-15 .” MCA § 71-3-15 (1) entitled an Employer and Carrier to require an employee to be examined by a physician other than of the employee’s choosing “for the purpose of evaluating temporary and permanent disability or medical treatment being rendered …..”  The Court determined that “reasonable and necessary medical treatment was set forth in MCA § 71-3-15 (1).”  It did not include expenses for EME’s.  Therefore, the decisions of the two lower Courts were reversed and the claim for reimbursement for the EME expense was denied.

Employers and Carriers are now advised not to include those costs in third party liens.  If you have any questions about liens, worker’s compensation claims and benefits, then please contact Karl Steinberger at ksteinberger@hs-lawfirm.com.