Medical Lien Rights Further Explained
- Posted By: Harvey Brown
- June 1, 1995
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.