Failure To Object To Medical Treatment May Not Be A Waiver
- Posted By: Harvey Brown
- February 1, 2003
The Workers’ Compensation Appeals Board (Board) has issued an en banc decision that should have far reaching effect upon medical treatment liens.
The applicant sustained an admitted industrial left knee injury. The applicant had left knee surgery at an outpatient surgery center. The center billed the defendant for three procedures using CPT codes. The defendant sent the billing to a review service.
The review service sent a statement to the provider indicating what it considered the usual and customary rate for the procedures in the providers area. The lien was litigated and the Workers’ Compensation Judge (WCJ) disallowed the remaining balance on the lien, the WCJ indicated the lien claimant failed to establish their case.
The WCAB concluded the following
“(1) under section 4603.2, a defendants failure to specifically object to a medical treatment lien claim on the basis of reasonable medical necessity (or on any other basis) does not effect a waiver of that objection;
(2) the provisions of section 4603.2 do not apply unless the prerequisites to the section’s application have been met, i.e., the medical treatment in question must have been ‘provided or authorized by the treating physician selected by the employee or designated by the employer (pursuant to section 4600)’ and the medical provider’s billing to the defendant must have been ‘properly documented’ with an ‘itemized billing, together with any require reports and any written authorization for services that may have been received;’
(3) the Official Medical Fee Schedule applies to medical services provided, referred of prescribed by “physicians” at an outpatient surgical facility;
(4) the Official Medical Fee Schedule generally does not apply to outpatient surgery facility fees, however, such fees nevertheless must be ‘reasonable’; and
(5) in determining the reasonableness of an outpatient surgery facility fee, the Board may take into consideration a number of factors, including but not limited to the following: the medical provider’s usual fee and the usual fee of other providers in the same geographical area, which means the fee usually accepted, not the fee usually charged.”
- Posted In: Work Injury
Psychiatric Injury Must Be Based On Substantial Evidence
- Posted By: Harvey Brown
- January 1, 2003
The Court Of Appeal in a case certified for partial publication has reviewed the good faith personnel action defense in a psychiatric case.
The applicant was to train other employees for his employer. During the course of the training it was alleged that the applicant discriminated against one of the employees. The employer initiated an investigation of the alleged racial discrimination. After the investigation the applicant was given a final warning notice by the employer.
The applicant filed a claim for workers’ compensation benefits for a psychiatric condition caused by this allegation of racial discrimination. The applicant testified at his workers’ compensation trial that he did not have any problems at work until he received his final warning notice as the result of the employer level investigation.
The Workers’ Compensation Judge (WCJ) found the psychiatric injury industrial relying on the applicant’s testimony and the applicant’s medical reports alleging harassment of the applicant. The defendant filed a Petition for Reconsideration. The Workers’ Compensation Appeals Board (WCAB) denied reconsideration and adopted the WCP’s opinion.
The Court of Appeal indicated that they must review the entire record to see if board’s opinion was based on substantial evidence. They indicated that the right to receive benefits for a psychiatric injury is described in Labor Code section 3208.3. The relevant exception to a finding of compensability is in 3208.3 (h).
This section deals with a lawful, nondiscriminatory, good faith personnel action. They looked at the case of Cotran v. Rolling Hudig Hall Internat, (1998) 17 Cal.43th 93 to assess the objective reasonableness of the employers actions. They looked at the “objective good faith standard.”
They also looked at City of Oakland v. WCAB (2002) 99 Cal. App.4th 261 to determine that the employer must be given a degree of freedom “in making its regular and routine personnel decisions (such as discipline, work evaluation, transfer, demotion, layoff, or termination.) If the employer’s conduct meets the objective reasonableness standard, section 3208.3’s exemption applies”.
The court indicated you must look at “the totality of the circumstances”. “To be in good faith, the personnel action must be done in a manner that is lacking in outrageous conduct, is honest and with a sincere purpose, is without intent to mislead, deceive, or defraud, and is without collusion or unlawful design.”
In this case they indicated the employer was mandated to investigate by law, therefore, it was in good faith.
- Posted In: Work Injury