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.

Case: Powers V. W.C.A.B.

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

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