Physician challenges constitutionality of $150 filing fee on certain medical liens

This is a published decision of the appellate court

This is a very significant case for workers’ compensation principles.

A physician and surgeon who provides services to workers’ compensation patients filed a writ with the court of appeal. The doctor alleges that prior to passage of SB 863 he would submit bills for payment and they would be paid or denied and he could file for a hearing.

After passage of SB 863 the physician indicates that if the insurer does not pay or only partially pays his bill for services he has to pay a fee to file his lien.

He indicates that he has multiple liens and does not have the “personal reserves” to pay the filing fees. He indicates SB 863 prevents him from assigning the accounts to secure financing. Therefore, he avoids providing care on a lien basis to applicants who have been denied treatment. He is not allowed to bill the applicant directly.

The court reviewed section 4903.5 and concluded that the $150 filing fee was a valid restriction on the right to file a petition. The fee was constructed to fight “lien abuse” and improve the functioning of an “out of control” lien abuse system. The fee was designed to prevent abuse of the system. The court indicates there is also a way for lien claimant to get reimbursed for the filing fee. Therefore, the court did not find the filing fee violated the constitution. Three applicants also filed for a writ of mandate but were deemed to lack standing.


Court reviews SB 863 and rules on whether WCAB can hear a case that is subject to Independent Bill Review

This is a published appellate court case

This is a very significant case for workers’ compensation principles.

A billing dispute related to outpatient services for arthroscopic knee procedures, arthroscopic shoulder procedures, and epidural injections provided prior to 2004 resulted in a consolidation of liens.

It went to trial and resulted in a 17 day trial with a decision by the Workers” Compensation Judge (WCJ) in February 2013. Prior to the WCJ decision SB 863 went into effect in January 2013.

The defendant appealed the decision contending the Workers’ Compensation Appeals Board (WCAB) did not have jurisdiction.

The appellate court indicated that SB 863 was ambiguous to whether the Independent Bill Review (IBR) service was intended to apply to pending billing disputes. If the IBR applied to the pending action it would leave the parties without a viable way to resolve the dispute.

Therefore, they ruled SB 863 only applied to billing disputes that arise after the legislation went into effect.

An outpatient surgery center has the affirmative burden of proving that its lien is reasonable. The court then discusses how to determine reasonable. They discuss in this case a “reasonable facility fee.” They indicated that the WCJ did this correctly and may accept the evidence of one expert or choose a figure in the middle based on all the evidence.


A writ denied case on lien claimant’s failure to appear results in dismissal of claim

This is a writ denied case of the court of Appeal

This is a very significant case for workers’ compensation principles.

The applicant had an industrial injury. The applicant was treated by Lien Claimant. The case-in-chief settled and a lien conference was set. When the lien conference notice came in, the Lien Claimant sent the notice and the file to their general counsel. They did not include instructions for the general counsel to appear at the lien conference.

Lien Claimant believed their general counsel would appear at the lien conference. Neither Lien Claimant nor their general counsel appeared.

The Workers’ Compensation Judge (WCJ) issued a Notice of Intention to Dismiss the lien of $166,399.28 for non-appearance. The Notice was served on Lien Claimant and no timely objection was filed.

The WCJ issued the Dismissal of the lien. The Lien Claimant filed a Petition for Reconsideration. The Workers’ Compensation Appeals Board (WCAB) denied the petition stating the Lien Claimant did not show good cause for their non-appearance.

The Lien Claimant then filed a Writ, which was denied, thus the lien was dismissed.


Lien claimants have the burden of proof by a preponderance of the evidence and may be sanctioned for frivolous actions

This is an EN BANC decision of the Workers’ Compensation Appeals Board (WCAB)

This is a very significant case for workers’ compensation principles.

The applicant suffered compensable injuries to his spine and lower extremities in 2002 and 2003. The defendant settled the case by compromise and release in 2005.

In 2009 the lien claimant filed a notice of appearance. In 2010 lien claimant filed an original lien claim. In 2011 at a lien conference the lien claimant listed as its exhibits a health insurance claim form and two MRI reports.

At the trial the parties stipulated that applicant “claimed” injuries. No witnesses testified. Lien claimant submitted an insurance form that listed dates of service, procedure codes and treatment charges. The Workers’ Compensation Judge (WCJ) found lien claimant failed to carry its burden of proof and issued a take nothing.

On appeal the WCAB reviewed prior cases and Labor Code Sections 3202.5 and 5705. They determined the lien claimant must prove by a preponderance of the evidence the validity of their lien. If not they may be sanctioned under Labor Code Section 5813.


The Workers’ Compensation Appeals Board (WCAB) Issued an EN BANC Decision on Payment of Interpreter Liens

This is a very significant case for workers’ compensation principles in that it discusses the current case law.

The applicant sustained an admitted injury. The case in chief was settled by Compromise and Release (C&R). An interpreters lien was not settled in the C& R and the lien reimbursement was eventually tried before a Workers’ Compensation Judge (WCJ).

The WCJ noted that the lien involved interpreting for work conditioning, physical therapy beyond the 24-visit cap, and interpreters that were not certified.

No testimony was taken at trial and defendant argued that interpreter services were only allowed for medical-legal expenses or evaluations. The WCJ found only that the initial and final evaluations with the primary treating physician were allowable for interpreter reimbursement.

The interpreter petitioned for reconsideration. The WCAB indicated that although there are a wealth of statutes on interpreter services there is no authority directly applicable to medical treatment. They found the employer is required to provide interpreter services during medical treatment if the injured work can not speak, understand or communicate in English.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3601 Jamboree Suite 620 Newport Beach ca 92660

Phone: 949 252-1300


This is a Workers’ Compensation Appeals Board (WCAB) Panel Decision to Pay a Lien of Provider Outside the MPN

This is a very significant case for workers’ compensation principles in that it discusses the current case law.

The applicant was injured and saw a physician who issued a doctor’s first report of injury. The defendant sent the doctor a letter informing the doctor he was not authorized to treat since he was not in the Medical Provider Network (MPN).

The physician stopped treatment and filed a lien. The applicant then settled the case by Compromise and Release (C&R). Thereafter, the Workers’ Compensation Judge (WCJ) approved the doctor’s lien. The defendant filed a Petition for Reconsideration. The WCAB denied reconsideration because the Order Approving Compromise and Release had become final with no Petition for Reconsideration.

The original C&R did not have a hold harmless clause to the C&R. The WCJ added one on his own. The Panel decision indicated the WCJ should not have added anything because a WCJ cannot rewrite a C&R. Since no petition was filed timely the hold harmless clause applied.

The hold harmless clause meant the defendant had to pay since the applicant was held harmless. It is recommended you do not use hold harmless clauses in your legal documents.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3501 Jamboree, Suite 602, Newport Beach 92660

Phone: 949 252-1300


The Court of Appeal Issued a Published Decision on Ex Parte Communications with a Physician and Reimbursement for Caregiver Services was Unreasonable

This is a very significant case for workers’ compensation principles in that it discusses the current case law.

The applicant was injured on August 20, 1999. It was an admitted injury. A second claim was filed for a cumulative trauma. A Stipulation With Request for Award was entered for injury with 100 % permanent disability. Jurisdiction was reserved on the stipulation for attendant care by lien claimant.

The Workers’ Compensation Judge (WCJ) disallowed the lien on substantial evidence grounds. The lien claimant successfully petitioned for reconsideration and the Workers’ Compensation Board (WCAB) instructed the WCJ to develop the record. The WCJ ordered the parties to a physician . Without notice to the defendant the lien claimant sent medicals to the physician. The WCJ and WCAB eventually awarded the lien claimant $1,520,640 in attendant care.

The appellate court found that ex parte communications violated defendants due process rights. They also found the degree of care awarded was unreasonable and remanded the case back for further proceedings.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 18881 Von Karman # 250 Irvine 92612


Lien Claimant Rights Are Further Clarified In 2 Cases

The Beverly Hills Multispecialtv Group. Inc. v. W.C.A.B. Case was further clarified in two cases involving liens for MRJ’s.

Two recent cases at 60 CCC 821 and 60 CCC 827 have further clarified due process requirements involving lien claimants. Both cases involved Dr. Powers, a radiologist. In both cases, Dr. Powers claimed denial of due process and the Court came up with some guidelines.

Lien claimants must be apprised of the evidence submitted, and given an opportunity to cross-examine witnesses, to inspect documents and to offer evidence in rebuttal or explanation.

The Court indicated that there is a Board rule governing the disposition of liens after the applicant has settled, whether by stipulation or Compromise and Release. Board Rule 10886 provides where there is a lien already on file you can propose a reduction or disallowance of the lien in the settlement papers. If the lien claimant does not consent then you must serve the lien claimant with settlements papers, documentary evidence and summaries of evidence. The lien claimant then only has 15 davs to protest and must submit their own copies of medical reports, documentary evidence or offers of proof.

Even if they do not comply it appears that the lien claimant must be given the opportunity to be heard pursuant to Labor Code section 10500. However, at the lien trial the defendant can also assert noncompliance with 10886 by the lien claimant in not making a timely objection or offer of proof.  The Court further clarifies that lien claims must be filed pursuant to Labor Code Section 4903.1 It further intimates that liens must be filed with the Board at the time of settlement.  Therefore, if the lien is not filed by the time of settlement it seems to intimate it should be denied in its entirety.  In the other case, Dr. Powers claimed he was not served with “defense medical reports”. The doctor did not identify any defense report critical of his work or relevant to the Board’s decision. Therefore, the Court said there was no denial of due process, which leads one to the conclusion that all medicals do not have to be served on lien claimants, but only those that are relevant to their particular lien or issue.

The doctor then argued that a QME asked for the MRI so it should be reimbursed under Labor Code section 4621 as a medical-legal expense. The Court looked at sections 4064 and 4620 and stated that this MRI was not reasonably necessary. Therefore, one must always evaluate whether there was a valid reason for ordering the tests before they become a valid medical-legal expense. Just because an orthopedist orders an MRI does not mean ip so facto it is reasonably necessary.


Medical Lien Rights Further Explained

A good synopsis of a medical lien claimants rights was provided in a recent appellate decision.

The Hand Rehabilitation Center (HRC) provided over $50,000. in physical therapy services at the request of Dr. Hylwa. Dr. Patzakis was an AME. The liens became litigated.

The Court citing Labor Code section 4903 stated a lien claimants rights are derivative of the injured employee’s rights and the WCAB has exclusive jurisdiction over workers’ compensa-tion medical liens. The Judge must determine whether the medical lien is reasonable in relation to the medical services provided. The lien has to be litigated in order to be reduced and the lien claimant has the burden of proving by a preponderance of the evidence that the claim is industrial.

The lien claimants must be served with the AME report and afforded an opportunity’ to submit rebuttal evidence or cross-examine the AME: The lien claimant has no right to participate in the selection of the AME.

The WCAB has adopted a medical fee schedule which is prima facie evidence of the reasonableness of fees charged for medical services. Higher fees may be charged only when determined to be reasonable.

In this case Jane Clancey rendered the services for the HRC. She was an occupational therapy assistant. The official medical fee schedule does authorize and provide for physical therapy if it was performed under the continuous and direct supervision of a physician or a licensed physical therapist. The Court indicated that there is no provision in the schedule for occupational therapy. Clancey’s report did not indicate that she was a licensed physical therapist or any physician was in attendance when she performed her services. The Judge disallowed the charges because they were billed as physical therapy and Clancey was not licensed to provide physical therapy.  The appellate court indicated that the burden was on the lien claimant to prove that its lien was for properly provide services and did not do so in this case.

HRC also contended the WCAB was not a “court” and only an administrative agency. The appellate court indicated that the WCAB is a “constitutional court”. They further stated that the WCAB “exercises a portion of the judicial powers of the state and ‘in legal effect is a court.” Following this line of logic and finding by the appellate court it would question the validity of using hearing representatives before the WCAB. If the WCAB is a court of the State of California then it would seem only licensed attorneys should be practicing law before the Board. Any other conclusion would seem nonsensical.


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