Board En Banc decision on declared state of emergency on spread of corona virus

This is a Board En Banc panel decision

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

Normally this newsletter is dedicated to providing cases related to the litigation of workers’ compensation. The world has changed and the existing order of all things has changed dramatically.

Most of the readers are now working remotely and the whole business procedure has changed.

The way we operate in Workers compensation has dramatically changed as well. The Workers’ Compensation Appeals Board issued on En Banc decision on March 18, 2020 temporarily suspending specific rules of Practice an Procedure. The decision applies to the entire state.

Dismissal of an application or lien claim for failure to appear is suspended. Workers’ Compensation Judges (WCJ) and arbitrators shall have an unlimited extension of time to issue reports in response to petition for reconsideration or removal. You no longer need two witnesses on a Compromise and Release. Signatures may be done electronically.

Suspension of requirement of service by mail on the WCAB. Service may be electronic with or without parties’ consent.

District offices are closed for filing until April 3, 2020. All filings are extended to the next day when the district offices reopen for filing. You will need to monitor when the district offices reopen. It may well be extended past April 3, 2020.

Be safe!


Lien Claimants liens are deemed satisfied with no further payment due for failing to follow required procedures

This is an order denying reconsideration case

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

The applicant was standing on a curb using a shovel. A car struck the shovel
which flew into his shoulder injuring his shoulder. The car came within a foot of hitting him. The applicant was taken to the hospital where he was in shock about the accident.

The defendant admitted the neck and left shoulder injury but denied the psychiatric claim. The applicant received psychiatric treatment. A psychiatrist diagnosed the applicant with post traumatic stress disorder and an adjustment disorder with depressed mood.

At trial the applicant testified to nightmares and paranoia with cars backing up. The Workers’ Compensation Judge (WCJ) found the psychiatric case compensable. The WCJ found that the psychiatric injury was a direct result of the work incident itself. The WCJ reasoned that Labor Code section 4660.1 (c ) (1) did not apply to the facts. This only applies when the psychiatric injury is a compensable consequence of the original injury.

The Workers’ Compensation Appeals Board (WCAB) reviewed on reconsideration. They reviewed the statute and the Wilson case. The panel concluded that there was substantial medical evidence that there was a compensable direct psychiatric injury. Therefore, 4660 did not apply.


Lien Claimants liens are deemed satisfied with no further payment due for failing to follow required procedures

This is a published case

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

The applicants both had admitted injuries. Both applicants needed interpreter services for their injuries. The interpreter service submitted invoices to defendant for services provided.

Defendant denied payment and issued explanations of review pursuant to Labor Code section 4603.3. The lien claimant objected to the explanation, but did not seek a second review pursuant to section 4603.2 or section 9792.5.

The liens went to trial. The parties stipulated that the interpreters were necessary. They submitted timely invoices. Defendant issued an explanation of review but lien claimant did not seek a second review.

The Workers Compensation Judge (WCJ) found the liens were not barred. Defendant filed a petition for reconsideration and the Workers Compensation Appeals Board (WCAB) denied the petition.

Defendant filed the writ of review. The appeals court looked at the applicable fee schedule under Labor code section 4603.3, 4603.2 and Title 8, Section 9795.3. They also reviewed case law.

The appellate court ruled that the WCAB lacked jurisdiction to hear the lien claimants dispute. There was an applicable fee schedule. There was an “amount of payment” under the schedule. The statute required lien claimant to file a second review within 90 days. Since they did not do so the bill was deemed satisfied pursuant to 4603.2


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.

==================

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.

==================

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.

==================

Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 18881 Von Karman # 250 Irvine 92612


Newsletter Sign up

SUBSCRIBE to our
Workers Compensation Feed

Recent Newsletters

Categories

Archives