SB 863 and Regulations from Treatment to Lien Trial Including www.workcompliens.com

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SB 863 and Regulations from Treatment to Lien Trial Including www.workcompliens.com
SB 863 and Regulations from
Treatment to Lien Trial Including
Discovery and Pleadings
www.workcompliens.com
Richard J Boggan JD
Applying The Law to Specific Issues
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Pleadings
Issues
Finding Information
Responding to Pleadings
Recons
Evidence
How to View a Case
Finding the Law
Finding citable Law
Evidence
Discovery
SB 863
Defense using the Law
Some insurance companies are misapplying the law as show below a medical provider is not a party
until a lien filing fee or activation fee is paid they are doing it to all providers see below law they are
citing even though not officially adopted they are using it and a response would be futile.
In part regarding medical reports services on non-physician lien Claimants
Tentative Proposed Changes to
California Code of Regulations, Title 8
Chapter 4.5. Division of Workers’ Compensation
Subchapter 1.9. Rules of the Court Administrator
&
Subchapter 2. Workers’ Compensation Appeals Board--Rules of Practice and Procedure
§ 10608. Filing andService of Medical Reports, and Medical-Legal Reports, and Other Medical
Information
(a) All medical reports and medical-legal reports filed with the Workers’ Compensation Appeals Board
shall be filed in accordance with the regulations of the Court Administrator, or as otherwise provided by
these rules.Service of all medical reports, and medical-legal reports, and other medical information on
other parties and lien claimants shall be made in accordance with the provisions of this section. For
purposes of this section, the following definitions shall apply:
(1) “Lien claimant” shall mean a person or entity that: (A) has invoked the jurisdiction and authority of
the Workers’ Compensation Appeals Board by filing a lien claim, including a claim of costs, or a
petition for costs; and (B) has previously paid any lien filing or activation fee required by Labor Code
sections 4903.05 or 4903.06.
Screen Sharing
Finding Information
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Finding Information about SB 863
Finding News from DWC, DIR and WCAB
Finding Issues
Finding Fee Schedule issues
Finding En Banc Decisions
Finding Significant Panel Decisions
FAQ
8 CCR 10770 ( c ) (2)
Compliance in Accordance with 8 CCR 10770
Service of Lien Claims and Supporting Documentation on the Parties
Operative date May 21, 2012
8 CCR 10770 ( c ) (2) The full statement or itemized voucher
supporting the lien claim or amended lien claim shall include: (A) any
amount(s) previously paid by any source for each itemized service; (B)
a statement that clearly and specifically sets forth the basis for the
claim for additional payment; (C) proof that the lien claimant is the
service provider or owner of the alleged debt; and (D) a declaration
under penalty of perjury under the laws of the State of California that
all of the information provided is true and correct.
(A) See attached for amount(s) previously paid by any source for each itemized service.
(B) A statement that clearly and specifically sets forth the basis for the claim for additional payment.
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
_
Therefore the correct reimbursement rate is $ ____________ minus a payment of leaves an outstanding
balance which we are seeking in the amount of ______________.
(C) proof that the lien claimant is the service provider or owner of the alleged debt;
The owner of the debt is ___ as is evidence by the medical reports and is the ____________ who
performed the services. ABC Medical represents the Lien Claimant in the collections of its medical bills
and is not the owner.
(D) a declaration under penalty of perjury under the laws of the State of California that all of the
information provided is true and correct.
I ______________ an employee of ___________________________ declare under penalty of perjury
under the laws of the State of California that all of the information provided is true and correct.
____________________
_____________________
Compliance in Accordance with 8 CCR 10770
Service of Lien Claims and Supporting Documentation on the Parties
Operative date May 21, 2012
8 CCR 10770 ( c ) (2) The full statement or itemized voucher supporting the lien claim or amended lien claim shall
include: (A) any amount(s) previously paid by any source for each itemized service; (B) a statement that clearly and
specifically sets forth the basis for the claim for additional payment; (C) proof that the lien claimant is the service
provider or owner of the alleged debt; and (D) a declaration under penalty of perjury under the laws of the State of
California that all of the information provided is true and correct. (A) See attached for amount(s) previously paid by any
source for each itemized service.
(B) A statement that clearly and specifically sets forth the basis for the claim for additional payment.
_________________________________________________________________________________________________
_________________________________________________________________________________________________
_________________________________________________________________________________________________
_________________________________________________________________________________________________
_________________________________________________________________________________________________
_________________________________________________________________________________________________
___________________________________________________________________________________________
Therefore the correct reimbursement rate is $ ____________ minus a payment of leaves an outstanding balance which
we are seeking in the amount of ______________.
(C) proof that the lien claimant is the service provider or owner of the alleged debt;
The owner of the debt is ___ as is evidence by the medical reports and is the ____________ who performed the services.
ABC Medical represents the Lien Claimant in the collections of its medical bills and is not the owner.
(D) a declaration under penalty of perjury under the laws of the State of California that all of the information provided is
true and correct.
I ______________ an employee of ___________________________ declare under penalty of perjury under the laws of
the State of California that all of the information provided is true and correct.
____________________
Understanding Cases / Laws
Denied Case
Luis Gonzalez (Luis Gonzalez Valladeres), Applicant v. San Cristobal
Distributing, State Compensation Insurance Fund, Defendants No.
ADJ6448504 (Panel Decision)Opinion Filed November 12, 2010 which held:
“When an applicant's case is resolved by a compromise and release with no
admission of liability, a lien claimant has the burden to establish a prima facie
case of industrial injury. After a prima facie case is presented, the burden shifts
to the defendant to rebut the prima facie showing. (Pace Medical Group, inc. v.
Workers' Comp. Appeals Bd. (Valiente) (1994) 59 Cal.Comp.Cases 354, 356
([writ denied].) Contrary to the defendant's argument, it is well established that
a lien claimant can carry its burden by introducing hearsay statements in
medical records, and it is not required to prove its case by presenting an
injured worker's testimony. (Independence Indem. Co. v. IAC (Lohnes) (1935)
2 Cal.2d 397, 410 [20 IAC 311]; Lab. Code, §5708.)
Granado v. Workmen’s Comp. App. Bd. (1968) 69
Cal. 2d 399, 404; states as follows:
“There can be no doubt that medical expense is not apportionable. Neither section 4600
nor any of the succeeding sections in the article of the code dealing with medical and
hospital treatment state or even suggest that the employer may pay part of the expense.
So long as the treatment is reasonably required to cure or relieve from the effects of the
industrial injury, the employer is required to provide the treatment, and treatment for
nonindustrial conditions may be required of the employer where it becomes essential in
curing or relieving from the effects of the industrial injury itself. Medical treatment
unrelated to the industrial injury need not be furnished by the employer. If medical
expenses reasonably necessary to relieve from the industrial injury were apportionable,
a workingman, who is disabled, may not be able to pay his share of the expenses and
thus forego reatment. Moreover, the uncertainties attendant to the determination of the
proper apportionment might cause employers to refuse to pay their share until there has
been a hearing and a decision on the question of apportionment, and such delay in
payment may compel the injured workingman to forego the prompt treatment to which
he is entitled.”
En Banc Decision of Bruce Knight, United Parcel Service;
and Liberty Mutual Insurance Company October 10, 2006
71 Cal. Comp. Cases 1423, 1431
“If the employer made an equivocal and
inadequate offer of medical treatment, the
employee could select his or her own physician
and obtain reimbursement for the reasonable cost
of reasonable self-procured medical treatment
pursuant to section 4600.”
Sharon Hammerly vs. Carrow Restaurant and Mitsui Sumitomo Marine
Management (2011) ADJ6990558 Appeals Board Decision Denying
Reconsideration Decided June 22, 2011
“Thus, it well settled that an employer will be liable even for the cost of treatment for
non-industrial condition, if that treatment is reasonably required to cure or relieve the
effects of an industrial injury”
The Court the goes on to state further:
“This principle does not change even if the non-industrial condition to be treated
arguably might have been found to be industrial under other circumstances. (Molina v.
Zenith Insurance Co, (2004) 32 Cal. Workers’ Comp. Rptr. 293 (Appeals Board panel
decision) [where psychiatric treatment is reasonably required to cure or relieve the
effects of a physical injury sustained within the first six months of employment , the
employee is entitled to that psychiatric treatment, notwithstanding the fact that the
WCAB is without jurisdiction to find industrial psychiatric injury because of the sixmonth employment limitation of Labor Code section 3208.3(d)]”
8 CCR 9792(c) in parts states as follows: “A medical provider or a licensed health care facility may be paid a fee in
excess of the reasonable maximum fees if the fee is reasonable,(emphasis added) accompanied by itemization, and
justified by an explanation of extraordinary circumstances related to the unusual nature of the services rendered;
however, in no event shall a physician charge in excess of his or her usual fee.”
Guillermo Bayley, Applicant v. YMCA of the East Bay, Travelers Insurance, Defendants; Stanford University
Medical Center, Lien Claimant W.C.A.B. No. ADJ236752 (SFO 0509283)--WCAB Panel: Commissioners Lowe,
Moresi, BrassWorkers' Compensation Appeals Board (Panel Decision) 2011 Cal. Wrk. Comp. P.D. LEXIS 149 Opinion
Filed March 22, 2011 states as follows:
“Although we agree with the WCJ that the provisions of 9789.20-9789.24 are applicable in this case to calculate the fee
due under the Inpatient Hospital Fee Schedule section of the OMFS, we disagree that those provisions exclude any
further consideration of whether the fee calculated under those sections is reasonable for the services rendered.”
The Court further stated:
“The OMFS was established to provide a basis for determining the maximum reasonable value of medical services. (Bell
v. Samaritan Med. Clinic, Inc. (1976) 60 Cal.App.3d 486 [41 Cal.Comp.Cases 415].) However, the values established by
the OMFS must be adequate to ensure a reasonable standard of services and care for the injured worker. (Lab. Code, §
5307.1(f); Gould v. Workers' Comp. Appeals Bd. (1992) 4 Cal.App.4th 1059 [578 Cal.Comp.Cases 157] (Gould).)
Ordinarily, the Administrative Director addresses this issue by adopting different conversion factors, DRG weights and
other factors as allowed by the statute. Lab. Code, § 5307.1(b)” 6
However, those adjustments only apply to services ordinarily provided for specific DRGs and do not address additional
fees that may reasonably be claimed for extraordinary circumstances related to the unusual nature of the services
rendered. (See, Lab. Code, §5307.1.) Thus, payment of the amount allowed by the OMFS may not fully satisfy an
employer's duty to provide reasonable medical treatment under Labor Code section 4600. (Kunz, supra; Tapia, supra;
Guitron, supra.)”
Acceleration, aggravation, or "lighting
up"
Spillane v. Workers' Comp. Appeals Bd., (1969)269 Cal. App. 2d 346;348,
74 Cal. Rptr. 671; 673,
Industry takes the employee as it finds him, and when a person suffering from
a pre-existing disease is disabled by an injury proximately arising out of the
employment, he is entitled to compensation even though a normal man would
not have been adversely affected by the event.
Pullman Kellogg v. Workers' Comp. Appeals Bd.,(1980) 26 Cal. 3d 450,
454; 161 Cal. Rptr. 783,785; 605 P.2d 422,424; 45 Cal. Comp. Cas. 170, 172
In applying this statute, the board must allow compensation not only for the
disability resulting solely from the employment, but also for that which results
from the acceleration, aggravation, or "lighting up" of a prior nondisabling
disease. Apportionment is justified only if the board finds that part of the
disability would have resulted from the normal progress of the underlying
nonindustrial disease.
Medical Legal Report
Kellogg Co. v. Workers' Compensation Appeals Bd. (Battle), (1996) 61
Cal. Comp. Cas. (MB) 519, 521
“The WCJ noted that, here, there were several reasons to reject Dr. Strassberg's
opinion. Dr. Strassberg failed to state his opinion in terms of reasonable
medical probability and did not set forth the reasoning behind his opinion.
Rather, he merely stated that it was his "impression" that chiropractic treatment
was "not require[d]" and was "contraindicated." Dr. Strassberg did not provide
any facts or reasoning to support and explain his "impression." Moreover, the
WCJ did not interpret the AME's mere "impressions" to constitute statements
of reasonable medical probability.”
The Court Further stated:
“The WCJ also was unclear about whether Dr. Strassberg was aware that
chiropractic treatment may be reasonable even if it did not cure Applicant's
condition, but merely relieves the condition.”
Sandhagen
State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (Sandhagen) (2008) 44 Cal.4th 230 [73
Cal.Comp.Cases 981] (Sandhagen) “Accordingly, in light of the clear statutory language and the
Legislature's purpose in enacting the utilization review process in section 4610, we conclude the
Legislature intended to require employers to conduct utilization review when considering employees'
requests for medical treatment. Employers may not use section 4062 as an alternative method for
disputing employees' treatment requests.”
Carl Dixon, Applicant v. Phillips Buick, Pontiac & Mazda, Clarendon National Insurance
Company, Administered By LWP Claims Solutions, Defendants, 2010 Cal. Wrk. Comp. P.D. LEXIS
343, Opinion Filed August 23, 2010
“The defendant in this case argues that Sandhagen should be inapplicable when an agreed medical
evaluator has already reported in the case. "To the contrary, the statutory language indicates the
Legislature intended for employers to use the utilization review process when reviewing and resolving
any and all requests for medical treatment." (Sandhagen, 44 Cal.4th 230 at p. 236.) The Supreme Court's
holding in Sandhagen was based upon the plain language of Labor Code §§ 4062 and 4610. Neither
statute contains any exception to the mandatory nature of utilization review. The argument that the clear
language of Labor Code §§ 4062 and 4610 is impractical in certain situations is best left to the
Legislature.”
Medical Bills
Maricela Arellano, Applicant v. Telacu, State Compensation Insurance
Fund, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 284, Opinion Filed
July 13, 2009 the Court held: “Lastly, the Findings and Order does contain two
omissions: It fails to record the admission of two groups of documents into
evidence and the rationale for the same. The crux of the majority of these
objections was that the lien claimant's bills were not signed under penalty of
perjury under Labor Code § 5703(a)(2.) However, after reviewing the statute
itself, one finds that it states that "statements concerning any bill or services
are admissible only if made under penalty of perjury . . . ." Since these
documents were the bills themselves and not "statements concerning" them, it
would seem unnecessary not to admit them. Furthermore, the undersigned has
searched for case law on the subject and found no guidance on the subject. It
would seem that the statute does not apply to the bills themselves by their
terms and so the documents were admitted. The undersigned includes language
to correct this omission in the recommendation below”
Tapia v. Skill Masters Staffing (2008) 73 Cal.Comp.Cases 1338, 1340
(Appeals Board en banc) (Tapia), 1340; held
“We hold that, consistent with Kunz: (1) an outpatient surgery
center lien claimant (or any medical lien claimant) has the
burden of proving that its charges are reasonable; (2) the
outpatient surgery center lien claimant's billing, by
itself, does not establish that the claimed fee is ''reasonable'';
therefore, even in the absence of rebuttal evidence, the lien
need not be allowed in full if it is unreasonable on its face; and
(3) any evidence relevant to reasonableness may be offered to
support or rebut the lien; therefore, evidence is not limited to
the fees accepted by other outpatient surgery centers in the
same geographic area for the services provided.”
En Banc Decision of Simmons v. California,
(2005) 70 Cal. Comp. Cases 866 (W.C.A.B.
2005):
“If in prescribing treatment for the disputed body
part, the treating physician either explicitly or
implicitly determines for the first time that the
injury to the disputed body part is industrial, then
utilization review is not appropriate. Instead, the
defendant must initiate the AME/QME process
within the deadlines established by section
4062(a)."
Ocean View School Dist. v. Workers' Comp. Appeals
Bd., (2007) 72 Cal. Comp. Cas. (MB) 1683, 1684,1685
Section 9789.38 adopts the federal regulation (42 C.F.R. §
419.2) which addresses the practices of outpatient
facilities. It does not address the providers of durable
medical equipment or restrict the number of mechanisms
for billing for durable medical equipment that is
implantable. In this case it is the equipment provider's
billing and lien that is in issue. A restriction on the surgery
center cannot automatically be applied to bar recovery
from a medical provider that is not subject to that
regulation.
http://www.dir.ca.gov/
http://www.dir.ca.gov/dwc/dwc_home_
page.htm
http://www.dir.ca.gov/
http://www.dir.ca.gov/wcab/wcab.htm
http://www.dir.ca.gov/wcab/wcab_enb
anc.htm
http://www.dir.ca.gov/DWC/educonf20
/DWC_EducationalConference.html
Issues
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Denied Injury
Post Termination
Pain Management
Above Fee Schedule
Per Deim Rates
CIGA and Assigned Claims
Usual and Customary Fees
Screen Sharing
Pleadings
IRAC
• I = Issue
• R = Rule
• A = Applicability
• C = Conclusion
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8 CCR § 10629. Filing and Listing of Exhibits (a) Proposed exhibits shall be filed in accordance with the provisions of
section 10233 and 10603.
(b) At every mandatory settlement conference, regular hearing, expedited hearing, and conference at which any issue will be
submitted for decision, each party or lien claimant shall submit, and shall personally serve on each other appearing party or
appearing lien claimant, a list of the exhibits that the party or lien claimant proposes to offer in evidence.
(1) If any such hearing is continued, a new list identifying all of the party or lien claimant's proposed exhibits (including all
previously listed exhibits that the party or lien claimant still intends to offer, and any new exhibits) shall be prepared and
served, with the exceptions that:
(A) any exhibit already admitted in evidence, or marked in evidence but not admitted, need not be re-listed;
(B) if the previous list was accepted for filing and scanned into EAMS, and no changes have been made to the previous list, a
new list need not be prepared and served; and (
C) if the previous list was served (but not accepted for filing and scanned into EAMS), and no changes have been made to the
previous list, a new list need not be served, but the list still must be filed.
(2) If a list of exhibits is being submitted after an initial mandatory settlement conference, the list shall separately identify:
(A) the exhibits that the party listed at the time of the initial mandatory settlement conference; and
(B) the exhibits that the party did not list at the time of the initial mandatory settlement conference.
(c) If a party or lien claimant with a currently pending issue fails to appear after proper notice at any hearing described in
subdivision (b), even if the party or lien claimant was excused from appearing, then
(1) the non-appearing party or lien claimant with a currently pending issue shall forthwith file and serve its exhibit list, but consideration of
its exhibits shall be subject to the limitations or evidentiary sanctions set forth in section 10562; and
(2) the appearing party(ies) or lien claimant(s) shall forthwith serve their exhibit list(s) on the non-appearing party or lien claimant. For
purposes of this subdivision, a party or lien claimant will be deemed to have a "currently pending issue" if an issue directly related to that
party or lien claimant has been raised in a declaration of readiness and that issue has not been resolved by a stipulation or adjudication, it has
not been withdrawn (including by failure to raise the issue at the mandatory settlement conference or trial), and it has not been judicially
deferred. 32
(d) Each exhibit listed must be clearly identified by author/provider, date, and title or type (e.g., "the July 1, 2008 medical report of John
Doe, M.D. (3 pages)"). Each medical report, medical-legal report, medical record, or other paper or record having a different author/provider
and/or a different date is a separate "document" and must be listed as a separate exhibit, with the exception that the following documents
may be listed as a single exhibit, unless otherwise ordered by the Workers' Compensation Appeals Board:
(1) excerpted portions of physician, hospital or dispensary records, provided that the party offering the exhibit designates each excerpted
portion by the title of the record or document, by the date or dates of treatment or other service(s) covered by the record or document, by the
author or authors of the record or document, and by any available page number(s) (e.g., Bates-numbered pages of records or documents
photocopied and numbered by a legal copy service). Only the relevant excerpts of physician, hospital or dispensary records shall be admitted
in evidence;
(2) excerpted portions of personnel records, wage records and statements, job descriptions, and other business records provided that the party
offering the exhibit designates each excerpted portion by the title of the record or document, by the date or dates covered by the record or
document, by the author or authors of the record or document, and by any available page number(s) (e.g., Bates-numbered pages of records
or documents photocopied and numbered by a legal copy service). Only the relevant excerpts of personnel records, wage records and
statements, job descriptions, and other business records shall be admitted in evidence; and (3) Explanation of Benefits (EOB) letters.
(e) Each exhibit listed must specify an exhibit number or initial that identifies it and the party, parties, or lien claimant offering it (e.g.,
Applicant's Exhibit 1, 2, 3, etc.; Defendant's Exhibit A, B, C, etc.; Lien Claimant's AA, BB, CC, etc.; Joint Exhibit XX, YY, etc.).
(f) Nothing in this section shall prevent a workers' compensation judge from referring an unrepresented injured employee, dependent or
uninsured employer to the Information and Assistance Office to prepare an exhibit list in accordance with the provisions of subdivisions (a),
(b), (c), (d) and (e).
Go to Screen Sharing
SB 863 and Regulations from
Treatment to Lien Trial Including
Discovery and Pleadings
www.workcompliens.com
Richard J Boggan JD