Failure To Object To Medical Treatment May Not Be A Waiver

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.”


Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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