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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