Transcript Overview of 2014 Collections Disputes

Overview of 2014 Collections
Disputes - Treatment - Payments WCAB -
www.workcompliens.com
April 25, 2014
7/7/2015
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The Laws
•
Workers’ Compensation Appeals Board--Rules of Practice and Procedure Effective - Oct. 23,
2013 (58 pages)
•
Independent Bill Review; Standardized Paper Billing and Payment; Electronic Billing and
Payment regulations (20 pages)
•
Independent Medical Review (IMR) regulations (68 pages)
•
SB 863 (109 pages)
•
En Banc decision of Tito Torres v AJC Sandblasting; and Zurich North America Nov 15,
2012 Case No. ADJ909554 LAO (0824849) and ADJ1856854 (LAO 0837910) 77 Cal.
Comp.Cases. (12 pages)
•
En Banc decision of Jose Dubon v.World Restoration, Inc.; and State Compensation
Insurance Fund Feb. 27, 2014Case No: ADJ4274323 (ANA 0387677) - ADJ1601669 (ANA
0388466) 79 Cal. Comp. Cases 313 (18 pages) -- Defective UR
•
Medical provider networks regulations (Proposed) (53 pages )
•
RBRVS-based Physician and Non-Physician Practitioner Fee Schedule effective January
1,2014 (57 Pages )
7/7/2015
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How to Read law
§9792.9.1 (b) (2) If utilization review is deferred pursuant to
this subdivision, and it is finally determined that the claims
administrator is liable for treatment of the condition for which
treatment is recommended, either by decision of the Workers’
Compensation Appeals Board or by agreement between the
parties, the time for the claims administrator to conduct
retrospective utilization review in accordance with this
section shall begin on the date the determination of the claims
administrator’s liability becomes final. The time for the
claims administrator to conduct prospective utilization
review shall commence from the date of the claims
administrator’s receipt of a DWC Form RFA after the final
determination of liability.
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How to Read law
• § 9792.6.1 (s) "Prospective review" means any
utilization review conducted, except for utilization
review conducted during an inpatient stay, prior to the
delivery of the requested medical services
• § 9792.6.1 (u) "Retrospective review" means
utilization review conducted after medical services
have been provided and for which approval has not
already been given.
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From Statement of Reasons of WCAB Policy and Procedure
Rules of October 2013
The WCAB has also changed Rule 10770(h) as follows: “When a lien claimant notifies the
Workers’ Compensation Appeals Board in writing that its lien has been resolved or withdrawn, the
lien claim shall be deemed dismissed with prejudice by operation of law. Once a lien claim has
been so dismissed, the lien claimant shall be excused from appearing at any noticed hearing.” This
change is indirectly based on a suggestion of The 4600 Group. Although the WCAB believes that
there are potential problems regardless of how this language might be framed, the WCAB sees no
reason why a lien claimant should appear at a noticed hearing when, based on its withdrawal of its
lien, the lien has been dismissed with prejudice by operation of law. This may cause some
confusion at lien conferences if the lien withdrawal is not reflected in EAMS; however, it is hoped
that, at least in many instances, the defense counsel can advise the WCJ that the lien has been
withdrawn. Moreover, the worst that might happen is a WCJ will unnecessarily issue an order
dismissing or a notice of intent to dismiss the lien. The 4600 Group suggests that a lien claimant
be excused from appearing “if it has a signed Order from the WCJ resolving the lien issue.”
However, once a lien claimant has such a signed Order, it necessarily is excused from appearing.
The 4600 Group also suggests that the lien claimant be excused from appearing “if it has a signed
settlement agreement.” The WCAB disagrees because, under Rule 10770(g), a lien is not
“resolved” unless payment in accordance with an agreement has been made. There are too many
instances where a settlement appears to have been effectuated, but the settlement falls through for
one reason or another, and until the settlement has been finalized by payment a lien claimant must
still appear. Otherwise, it may unnecessarily result in an additional lien conference.
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Summary Process for Collections in 2014 (SB 863)
Independent Medical Review
(IMR) Process
Starts by Submitting
Request for
Authorization form
(RFA)
Adjuster Actions
If defective
untimely can file
a lien for WCAB
Adjuster has to
notify in 5 days if
incorrect form
Not Send it through
utilization review
because disputed
liability issue –goes
to lien process deferred
No lien can
be filed
unless
defective
untimely can
file a lien for
WCAB
Will only hear denied cases,
contested liability issues , defective
and or untimely UR, Authorization
process and or Defective or untimely
payment , 2nd review process /
Appeals from IBR or IMR decisions
and Non-IBR Medical Legal
Disputes – Including enforcement of
IBR decisions and or penalties and
interest
Sends to Utilization
Review (UR Process)
Time Frames
1.
Concurrent , Prospective (5 days or less)
2.
Expedite (72 hours or less)
3.
Retrospective (30 days or less)
After UR Process if denied,
modified or delayed Adjuster
will send request for IMR
form filled out by adjuster
Requires a
retrospecti
ve review
30 days to
complete
is services
already
provided
review by
UR. If
services
not
provided
RFA
Files Lien 3 years from
date of Service --- for
dates of services after July
1 2013 18 months to file
lien from date of service
Lien filing fee of $150 for
liens filed on or after
January 01, 2013 –
To get lien filing fees fee
must send offer 30 days
prior to filing, win at
hearing for an amount equal
to or greater than the offer
30 days to request an IMR fees paid by Adjuster /
Insurance Company
1.
2.
3.
4.
Goes to Director if eligible goes to IMRO
Assigned to IMR
Issues decision
May appeal in 20 days to WCAB
Independent Bill Reviewer (IBR) Process
WCAB Disputed Liability
Process (Lien Process)
Court order resolving disputed liability issue
may have to go back to IMR or IBR process
where left off with time limits
After
Submitting bill
Provider
receives review
(EOR /
EOB)deny
liability for
payment –
deferred to lien
process – after
court order goes
back to point it
was deferred
Cannot file
a lien if
only issue
subject to
IBR unless
defective or
untimely or
by appeal
from an
IBR
decision
By WCAB
adopted rules
of Oct 2013
failure to
respond to
second review
within 14 days
now a lien
issue and
provider gets
paid fee
schedule
Request for
second review
by form after
initial review of
medical bill 90
days or no
further recourse
Failure to request 2nd review 90 days
or failure to request IBR in 30 days
from Court order if no 2nd review
completed provider stuck with any
payment already received
No UR review request
needed if partial payment
made with 30 days of RFA
Provider has 90
days to seek
second review if
only issue is
reasonable
reimbursement(date of proof of
service or date of
proof of receipt or
if no proof of
services or receipt
5 additional days
from post mark)
After and only
after second
review has 30 days
to seek IBR by
form
Fee for IBR $335.00 if
win an IBR decision
order issue for
reimbursement of
$335.00 (in addition to
money owed)
Can consolidate IBR 3
different fact patterns
to consolidate limited
to 20
SB 863 –Regulations-WCAB
• Regulating Collection Companies
•
•
•
•
•
To clean up system
Stop Unethical practices
No tolerated Misrepresentations
Ensure professional representation
WCAB – will enforce when ready
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Factual Pattern
The other day I had a discussion regarding second bill
review, and the story was told that a lien claimant
appeared in court and the judge threw the lien claimant
out stating they had failed to do a second bill and could
not explain why one was not done and or needed.
En Banc decision of Tito Torres v AJC Sandblasting;
and Zurich North America Nov 15, 2012 Case No.
ADJ909554 LAO (0824849) and ADJ1856854 (LAO
0837910) 77 Cal. Comp.Cases.
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Panel Decision
“We deny lien claimant's petition for reconsideration for the additional reason
that the petition is unintelligible and violates the requirements of WCAB Rule
10842(a) and (b). (Cal. Code Regs., tit. 8, 17 10842.) The rule requires clear
and specific reference to evidence which supports the petitioner's contentions.
Lien claimant fails to refer to any evidence in alleging on page five of its
petition that "applicant was referred by the secondary treating physician on the
advice of the treating physician pursuant to and in compliance with applicable
ACOEMIAMA Guidelines to assess symptomology due to pain and to
determine if any counterbalancing factors such as maladjustment [sic]." Lien
claimant repeats this allegation on page six, again unsupported by specific
reference to any evidence. As pointed out on page two of the WCJ's Report, it
appears that lien claimant labors under the mistaken impression that the WCJ
and the WCAB are here to help make the lien claimant's case.”
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Factual Pattern
First, as stated on the second review “form” page (2) two under instructions, it states that
once a contested liability issue is resolved that the provider must request a second review.
Therefore, it could have been the case was initially denied as non-industrial and the closing
documents (Compromise and Release, Findings and Awards, etc.) resolved that contested
liability issue, and the lien claimant did not request a second review to contest the amount of
payment.
DWC Form SBR-1 (Effective 2/2014)
When to Apply: A request for second bill review must be made within 90 days of service of
the explanation of review that explained why the payment you sought in the initial bill was
reduced or denied.
If an issue that would preclude your right to receive compensation for the submitted
bill is under consideration by the Workers’ Compensation Appeal Board (WCAB), you
have 90 days from the date of the service of the WCAB order that resolves the issue to
request the second bill review.
If the only dispute is the amount of payment and you do not timely request a second bill
review, the bill will be considered satisfied and neither the claims administrator nor the
employee shall be liable to you for any further payment
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Order of the Workers’ Compensation
Appeal Board
§ 9792.5.5. (b) The second review must be requested within 90 days of:
(2) The date of service of an order of the Workers’ Compensation Appeal Board resolving any
threshold issue that would preclude a provider’s right to receive compensation for the submitted
bill.
•
Findings & award (F&A):
•
Compromise and release (C&R)
•
Stipulation with award
•
Or any order issued by the Court.
•
•
(Note the EOBs of today and a lot more complicated)
Remembering when in doubt as to what the EOB states the Judge will favor the second review
requirement (Torres Case Burden of Proof on Provider / Lien Claimant)
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Factual Pattern
Or it could be that Judges in accordance with the laws will not hear any issues
regarding reasonable reimbursement and the lien claimant failed to ascertain that that
was the only issue regarding the lien dispute.
§ 10770.6. Verification to Filing of Declaration of Readiness By or on Behalf of
Lien Claimant.
The verification shall be in the following form:
I declare under penalty of perjury under the laws of the State of California that:
[ ] the declaration of readiness is not being filed because of a dispute subject to the
independent medical review and/or independent bill review process; or [ ] a timely
petition appealing the Administrative Director’s determination regarding independent
medical review and/or independent bill review has been filed (Check one box); and
Failure to attach the verification or an incorrect verification may be a basis for
sanctions.
Authority: Sections 133, 5307, 5309 and 5708, Labor Code.
Reference: Sections 4903 and 4903.6, Labor Code.
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Factual Pattern
Or it could be that the lien claimant did not have the EOB
from the initial billing stating that the defense was not
paying because of a contested liability issue and when
appearing at court the defense only raised the issue of
reasonable reimbursement. (The WCAB is clear if you do
not have a document to submit into evidence it does not
exist, lien claimants still having trouble with this issue.)
En Banc decision of Tito Torres v AJC Sandblasting;
and Zurich North America Nov 15, 2012 Case No.
ADJ909554 LAO (0824849) and ADJ1856854 (LAO
0837910) 77 Cal. Comp.Cases
7/7/2015
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Factual Pattern
Or it could be that the second review was deferred , or the issue of medical necessity was deferred and
then resolved by an IMR, partial payment (operation of law), or court order and the only issue was
reasonable reimbursement requiring a second review by law or default sets in, unbeknownst to the lien
claimant.
§ 9792.5.4 . (d) “Contested liability” means the existence of a good-faith issue which, if resolved against
the injured worker, would defeat the right to any workers' compensation benefits or the existence of a
good-faith issue that would defeat a provider’s right to receive compensation for medical treatment
services provided in accordance with Labor Code section 4600 or for medical-legal expenses defined in
Labor Code section 4620.
In the updated regulations they took out the term “Deferred Second Review” or “Deferred IBR” now
when contested liability issue is resolved by court order 90 days starts
UR Deferral: § 9792.6.1 (g) “Dispute liability” means an assertion by the claims administrator that a
factual, medical, or legal basis exists, other than medical necessity, that precludes compensability on the
part of the claims administrator for an occupational injury, a claimed injury to any part or parts of the
body, or a requested medical treatment.
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Difference in Second Review and UR
Second Review Denial: § 9792.5.4 . (d) “Contested liability” means the
existence of a good-faith issue which, if resolved against the injured worker,
would defeat the right to any workers' compensation benefits or the existence
of a good-faith issue that would defeat a provider’s right to receive
compensation for medical treatment services provided in accordance with
Labor Code section 4600 or for medical-legal expenses defined in Labor Code
section 4620.
UR Deferral: § 9792.6.1 (g) “Dispute liability” means an assertion by the
claims administrator that a factual, medical, or legal basis exists, other than
medical necessity, that precludes compensability on the part of the claims
administrator for an occupational injury, a claimed injury to any part or parts
of the body, or a requested medical treatment.
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Factual Pattern
§ 9792.10.7. Independent Medical Review – Implementation of
Determination and Appeal § 9792.10.7 (3) If, at the time of receiving the
final determination, the claims administrator is disputing liability for the
medical treatment on grounds other than medical necessity, implementation of
the final determination shall be deferred until the liability dispute has been
resolved.
§ 9792.10.3. (d) If there appears to be any medical necessity issue, the dispute
shall be resolved pursuant to an independent medical review, except that,
unless the claims administrator agrees that the case is eligible for independent
medical review, a request for independent medical review shall be deferred if
at the time of a utilization review decision the claims administrator is also
disputing liability for the treatment for any reason besides medical necessity.
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Factual Pattern
§9792.9.1 (b) Utilization review of a medical treatment request made on the
DWC Form RFA may be deferred if the claims administrator disputes liability
for either the occupational injury for which the treatment is recommended or
the recommended treatment itself on grounds other than medical necessity.
(1) If the claims administrator disputes liability under this subdivision, it may,
no later than five (5) business days from receipt of the DWC Form RFA, issue
a written decision deferring utilization review of the requested treatment unless
the requesting physician has been previously notified under this subdivision of
a dispute over liability and an explanation for the deferral of utilization review
for a specific course of treatment. The written decision must be sent to the
requesting physician, the injured worker, and if the injured worker is
represented by counsel, the injured worker's attorney. The written decision
shall contain the following information specific to the request:
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Factual Pattern
§9792.9.1 (b) (1) (D) A plain language statement advising the injured
employee that any dispute under this subdivision shall be resolved either by
agreement of the parties or through the dispute resolution process of the
Workers’ Compensation Appeals Board.
9792.9.1 (d) (3)(B) Payment, or partial payment consistent with the
provisions of California Code of Regulations, title 8, section 9792.5, of a
medical bill for services requested on the DWC Form RFA, within the 30-day
timeframe set forth in subdivision (c)(5), shall be deemed a retrospective
approval, even if a portion of the medical bill for the requested services is
contested, denied, or considered incomplete. A document indicating that a
payment has been made for the requested services, such as an explanation of
review, may be provided to the injured employee who received the medical
services, and his or her attorney/designee, if applicable, in lieu of a
communication expressly acknowledging the retrospective approval.
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14 days Respond to Second Review
§ 9792.5.5. (g) Within 14 days of receipt of a request for second
review that complies with the requirements of subdivision (d), the
claims administrator shall respond to the provider with a final written
determination on each of the items or amounts in dispute by issuing an
explanation of review. The determination shall contain all the
information that is required to be set forth in an explanation of review
under Labor Code section 4603.3, including an explanation of the time
limit to raise any further objection regarding the amount paid for
services and how to obtain independent bill review under Labor Code
section 4603.6. The 14 day time limit for responding to a request for
second review may be extended by mutual written agreement between
the provider and the claims administrator.
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Subject to Utilization review
Admitted Injury Denied Body Part
Recent Panel Decision:
“Applicant did not object to the May 10, 2010 permanent and
stationary report of n Robert Kounang, M.D., pursuant to either
Labor Code1 sections 4061 or 4062, which is the proper
mechanism for objecting to medical determinations by a
primary treating physician where liability to at least one body
part has been accepted.”
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Request for Authorization Utilization Review (UR)
and Independent Medical Review (IMR)
§9792.9.1 (b) Utilization review of a medical treatment request made on the DWC Form RFA may
be deferred if the claims administrator disputes liability for either the occupational injury for which
the treatment is recommended or the recommended treatment itself on grounds other than medical
necessity.
(1) If the claims administrator disputes liability under this subdivision, it may, no later than five (5)
business days from receipt of the DWC Form RFA, issue a written decision deferring utilization
review of the requested treatment unless the requesting physician has been previously notified under
this subdivision of a dispute over liability and an explanation for the deferral of utilization review
for a specific course of treatment. The written decision must be sent to the requesting physician, the
injured worker, and if the injured worker is represented by counsel, the injured worker's attorney.
The written decision shall contain the following information specific to the request:
§ 9792.6.1 (g) “Dispute liability” means an assertion by the claims administrator that a factual,
medical, or legal basis exists, other than medical necessity, that precludes compensability on the
part of the claims administrator for an occupational injury, a claimed injury to any part or parts of
the body, or a requested medical treatment.
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Request for Authorization Utilization Review
(UR) and Independent Medical Review (IMR)
§9792.9.1 (a) The request for authorization for a
course of treatment as defined in section
9792.6.1(d) must be in written form set forth on
the “Request for Authorization (DWC Form
RFA),” as contained in California Code of
Regulations, title 8, section 9785.5.
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Request for Authorization Utilization Review (UR)
and Independent Medical Review (IMR)
§9792.9.1 (c) (2) (A) Upon receipt of a request for authorization as described in
subdivision (c)(2)(B), or a DWC Form RFA that does not identify the employee or
provider, does not identify a recommended treatment, is not accompanied by
documentation substantiating the medical necessity for the requested treatment, or is
not signed by the requesting physician, a non-physician reviewer as allowed by section
9792.7 or reviewer must either regard the request as a complete DWC Form RFA and
comply with the timeframes for decision set forth in this section or return it to the
requesting physician marked “not complete,” specifying the reasons for the return of
the request no later than five (5) business days from receipt. The timeframe for a
decision on a returned request for authorization shall begin anew upon receipt of a
completed DWC Form RFA.
§9792.9.1 (c) (2) (B) The claims administrator may accept a request for authorization
for medical treatment that does not utilize the DWC Form RFA, provided that: (1)
“Request for Authorization” is clearly written at the top of the first page of the
document; (2) all requested medical services, goods, or items are listed on the first
page; and (3) the request is accompanied by documentation substantiating the medical
necessity for the requested treatment.
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UR Deferred
§9792.9.1 (b) (2) If utilization review is deferred pursuant to this
subdivision, and it is finally determined that the claims administrator is
liable for treatment of the condition for which treatment is
recommended, either by decision of the Workers’ Compensation
Appeals Board or by agreement between the parties, the time for the
claims administrator to conduct retrospective utilization review in
accordance with this section shall begin on the date the determination
of the claims administrator’s liability becomes final. The time for the
claims administrator to conduct prospective utilization review shall
commence from the date of the claims administrator’s receipt of a
DWC Form RFA after the final determination of liability.
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Request for Authorization Utilization Review
(UR) and Independent Medical Review (IMR)
• If Not Deferred than we have the Defective UR process or untimely.
• However if denied Claim and provider aware no defective UR if
untimely ?
• When and Why would a provider assert an untimely UR
– Retrospective review---
• Defective clear not signed nor all reports completed
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En Banc Decision Defective UR
Jose Dubon v. World Restoration, Inc.; and State Compensation Insurance Fund Feb. 27, 2014
Case No: ADJ4274323 (ANA 0387677) - ADJ1601669 (ANA 0388466) 79 Cal. Comp. Cases 313
In reaching its decision in this case that the Utilization Review (UR) decision was invalid, that the UR
decision therefore was not subject to Independent Medical Review (IMR), and that the WCJ must then
determine the medical necessity of the requested treatment based on substantial medical evidence, the
Appeals Board specifically held as follows:
IMR solely resolves disputes over the medical necessity of treatment requests. Issues of timeliness and
compliance with statutes and regulations governing UR are legal disputes within the jurisdiction of the
WCAB.
A UR decision is invalid if it is untimely or suffers from material procedural defects that undermine the
integrity of the UR decision. Minor technical or immaterial defects are insufficient to invalidate a
defendant’s UR determination.
If a defendant’s UR is found invalid, the issue of medical necessity is not subject to IMR but is to be
determined by the WCAB based upon substantial medical evidence, with the employee having the
burden of proving the treatment is reasonably required.
If there is a timely and valid UR, the issue of medical necessity shall be resolved through the IMR
process if requested by the employee.
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Defective IMR / IBR
§ 10451.2.(c) Medical Treatment Disputes Not Subject to Independent Medical
Review and/or Independent Bill Review
(1) Where applicable, independent medical review (IMR) applies solely to disputes
over the necessity of medical treatment where a defendant has conducted a timely and
otherwise procedurally proper utilization review (UR). Where applicable, independent
bill review (IBR) applies solely to disputes directly related to the amount payable to a
medical treatment provider under an official fee schedule in effect on the date the
medical treatment was provided. All other medical treatment disputes are nonIMR/IBR disputes. Such non-IMR/IBR disputes shall include, but are not limited to:
(A) any threshold issue that would entirely defeat a medical treatment claim (e.g.,
injury, injury to the body part for which treatment is disputed, employment, statute of
limitations, insurance coverage, personal or subject matter jurisdiction);
(B) a dispute over a UR determination if the employee’s date of injury is prior to
January 1, 2013 and the decision is communicated to the requesting physician prior to
July 1, 2013;
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Defective IMR / IBR
§ 10451.2.(c) (1)(C) a dispute over whether UR was timely undertaken
or was otherwise procedurally deficient; however, if the employee
prevails in this assertion, the employee or provider still has the burden
of showing entitlement to the recommended treatment;
(D) an assertion by the medical treatment provider that the
defendant has waived any objection to the amount of the bill
because the defendant allegedly breached a duty prescribed by
Labor Code sections 4603.2 or 4603.3 or by the related Rules of the
Administrative Director;
(E) an assertion by the defendant that the medical treatment provider
has waived any claim to further payment because the provider allegedly
breached a duty prescribed by Labor Code section 4603.2 or by the
related Rules of the Administrative Director;
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Labor Code §4603.2. (b) (2)
4603.2. (b) (2) Except as provided in subdivision (d) of Section 4603.4, or under contracts
authorized under Section 5307.11, payment for medical treatment provided or prescribed by the
treating physician selected by the employee or designated by the employer shall be made at
reasonable maximum amounts in the official medical fee schedule, pursuant to Section 5307.1, in
effect on the date of service. Payments shall be made by the employer with an explanation of
review pursuant to Section 4603.3 within 45 days after receipt of each separate, itemization of
medical services provided, together with any required reports and any written authorization for
services that may have been received by the physician. If the itemization or a portion thereof is
contested, denied, or considered incomplete, the physician shall be notified, in the explanation of
review, that the itemization is contested, denied, or considered incomplete, within 30 days after
receipt of the itemization by the employer. An explanation of review that states an itemization is
incomplete shall also state all additional information required to make a decision.
Any properly documented list of services provided and not paid at the rates then in effect under
Section 5307.1 within the 45-day period shall be paid at the rates then in effect and increased by
15 percent, together with interest at the same rate as judgments in civil actions retroactive to the
date of receipt of the itemization, unless the employer does both of the following:
(A) Pays the provider at the rates in effect within the 45-day period.
(B) Advises, in an explanation of review pursuant to Section
4603.3, the physician, or another provider of the items being contested, the reasons for contesting
these items, and the remedies available to the physician or the other provider if he or she disagrees
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Not Subject to IMR / IBR
§ 10451.2.(c) (1)(F) a dispute over whether the employee was entitled to
select a treating physician not within the defendant’s medical provider
network (MPN);
(G) an assertion by the defendant that an interpreter who rendered services
at a medical treatment appointment did not meet the criteria established by
Labor Code sections 4600(f) and (g) and 5811(b)(2) and the Rules of the
Administrative Director, as applicable; and
(H) an assertion by the defendant that an interpreter was not reasonably
required at a medical treatment appointment because the employee
proficiently speaks and understands the English language.
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Independent Medical
Process (IBR) Process
Review
Medical
Legal
Subject
to
Independent Medical Review
Process (IBR) Process
When only issue is fee schedule §
10451.1 (c) (1)
Provider has 90 days to seek second review
if only issue is reasonable reimbursement(date of proof of service or date of proof of
receipt or if no proof of services or receipt 5
additional days from post mark) (§
9792.5.5)
After and only after second review has 30
days to seek IBR by form § 9792.5.7 (c)
Fee for IBR $335.00 if money owed IBR
decision order issued for reimbursement of
$335.00 (in addition to money owed) §
9792.5.7 (d)(1)
§ 9792.5.15 (b) The provider or
the claims administrator may
appeal a determination of the
Administrative Director under
section 9792.5.14 by filing a
verified petition with the Workers'
Compensation Appeals Board and
serving a copy on all interested
parties, including the
Administrative Director, within 20
days of mailing of the
determination.
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Medical Legal Expenses
§ 10451.1 (c) Medical-Legal Expense Disputes Not Subject to Independent Bill
Review
§ 10451.1 (c) (2) Petition for Determination of Non-IBR Medical-Legal
Dispute Filed by a Defendant
(A) A defendant shall concurrently file both a “Petition for Determination of
Non-IBR Medical-Legal Dispute” and a declaration of readiness (DOR) if:
(i) the defendant has denied all or a portion of a provider’s billing for medicallegal expenses under Labor Code section 4620 et seq. for any reason other than
the amount to be paid pursuant to the fee schedule in effect on the date the
medical-legal goods or services were provided; and
(ii) the medical-legal provider has objected to this denial or partial denial
within 90 days of the defendant’s service of its explanation of review on the
provider.
(B) The defendant’s petition and DOR shall be filed within 60 days of the
provider’s service of the objection on the defendant. A copy of the provider’s
objection and its proof of service shall be appended to the petition. The
petition and DOR shall be concurrently served on: (i) the medical-legal
provider; (ii) the employee or dependent; and (iii) any other defendant(s). If
any of these persons or entities is represented, service shall be made on the
attorney(s) or hearing representative(s).
§ 10451.1 (3) Petition for Determination of Non-IBR Medical-Legal Dispute
Filed by a Medical-Legal Provider
(B) A DOR may, but need not, accompany the petition.
(C) A copy of the petition and any DOR shall be concurrently served on: (i) the
defendant(s); and (ii) the employee or dependent. If any of these persons or
entities is represented, service shall also be made on the attorney(s) or hearing
representative(s).
(D) A medical-legal provider is not required to file a claim of costs in the form of
the lien in conjunction with the petition or DOR. However, if the provider elects
to file such a lien, it must pay a lien filing fee, if applicable
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(A) any threshold issue that would entirely
defeat a medical-legal expense claim (e.g.,
employment, statute of limitations, insurance
coverage,
personal
or
subject
matter
jurisdiction), however, for purposes of this
section, a “threshold issue” shall not include a
dispute over whether the employee sustained
industrial injury or injury to a particular body
part;
(B) medical-legal goods or services provided
prior to January 1, 2013;
(C) whether the claimed medical-legal expense
was incurred for the purpose of proving or
disproving a contested claim;
(D) whether the claimed medical-legal expense
was reasonably, actually, and necessarily
incurred;
(E) an assertion by the medical-legal provider
that the defendant has waived any objection to
the amount of the bill because the defendant
allegedly failed to comply with the relevant
requirements, timelines, and procedures set
forth in Labor Code sections 4622, 4603.3,
and 4603.6 and the related Rules of the
Administrative Director;
(F) an assertion by the defendant that the medicallegal provider has waived any claim to further
payment because the provider allegedly failed to
comply with the relevant requirements, timelines,
and procedures set forth in Labor Code sections
4622 and 4603.6 and the related Rules of the
Administrative Director; and
(G) an assertion by the defendant that an
interpreter who rendered services at a medicallegal examination did not meet the criteria
established by Labor Code sections 4620(d) and
5811(b)(2) and the Rules of the Administrative
Director, as applicable.
Medical-Legal Expense Disputes.
§ 10451.1. Determination of Medical-Legal Expense Disputes.
(a) The following procedures shall be utilized for the determination of
medical-legal expense disputes.
(b) For purposes of this section:
(1) “medical-legal expense” shall mean any cost or expense incurred by or on
behalf of any party for the purpose of proving or disproving a contested claim,
including but not limited to:
(A) goods or services expressly specified by Labor Code section 4620(a);
(B) services rendered by a non-medical expert witness;
(C) services rendered by a certified interpreter during a medical-legal
examination; and
(D) all costs or expenses for copying and related services.
(2) “medical-legal provider” shall mean any person or entity that seeks
payment for or reimbursement of a medical-legal expense, other than an
employee, a dependent, or the attorney or non-attorney representative of an
employee or dependent who directly paid for medical-legal goods or services.
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§ 10451.1(c) Medical-Legal Expense Disputes Not Subject
to Independent Bill Review
§ 10451.1(1) Where applicable, independent bill review (IBR) applies
solely to disputes directly related to the amount payable to a medicallegal provider under an official fee schedule in effect on the date the
medical-legal goods or services were provided. Other medical-legal
expense disputes between a defendant and a medical-legal provider are
non-IBR disputes. Such non-IBR disputes shall include, but are not
limited to:
(A) any threshold issue that would entirely defeat a medical-legal
expense claim (e.g., employment, statute of limitations, insurance
coverage, personal or subject matter jurisdiction), however, for
purposes of this section, a “threshold issue” shall not include a dispute
over whether the employee sustained industrial injury or injury to a
particular body part;
(B) whether the claimed medical-legal expense was incurred for the
purpose of proving or disproving a contested claim;
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Medical-Legal Expense
§ 10451.1(1)(C) whether the claimed medical-legal expense was reasonably, actually,
and necessarily incurred;
(D) an assertion by the medical-legal provider that the defendant has waived any
objection to the amount of the bill because the defendant allegedly failed to comply
with the relevant requirements, timelines, and procedures set forth in Labor Code
sections 4622, 4603.3, and 4603.6 and the related Rules of the Administrative Director;
(E) an assertion by the defendant that the medical-legal provider has waived any claim
to further payment because the provider allegedly failed to comply with the relevant
requirements, timelines, and procedures set forth in Labor Code sections 4622 and
4603.6 and the related Rules of the Administrative Director;
(F) an assertion by the defendant that an interpreter who rendered services at a medicallegal examination did not meet the criteria established by Labor Code sections 4620(d)
and 5811(b)(2) and the Rules of the Administrative Director, as applicable; and
(G) an assertion by the defendant that an interpreter was not reasonably required at a
medical-legal examination because the employee proficiently speaks and understands
the English language.
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Medical-Legal Expense
§ 10451.1(2) Petition for Determination of Non-IBR Medical-Legal Dispute Filed by a
Defendant
(A) A defendant shall concurrently file both a “Petition for Determination of Non-IBR
Medical-Legal Dispute” and a declaration of readiness (DOR) if:
(i) the defendant has denied all or a portion of a provider’s billing for medical-legal
expenses under Labor Code section 4620 et seq. for any reason other than the amount
to be paid pursuant to the fee schedule in effect on the date the medical-legal goods or
services were provided; and
(ii) the medical-legal provider has objected to this denial or partial denial within 90
days of the defendant’s service of its explanation of review on the provider.
(B) The defendant’s petition and DOR shall be filed within 60 days of the provider’s
service of the objection on the defendant. A copy of the provider’s objection and its
proof of service shall be appended to the petition. The petition and DOR shall be
concurrently served on: (i) the medical-legal provider; (ii) the employee or dependent;
and (iii) any other defendant(s). If any of these persons or entities is represented,
service shall be made on the attorney(s) or hearing representative(s).
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Medical-Legal Expense
§ 10451.1(3) Petition for Determination of Non-IBR Medical-Legal Dispute Filed by a MedicalLegal Provider
(A) A medical-legal expense provider may file a “Petition for Determination of Non-IBR MedicalLegal Dispute” with respect to any medical-legal expense dispute not subject to IBR if: (i) a
defendant breaches its duty to timely file a petition and/or declaration of readiness as required by
Labor Code section 4622(c) and Rule 10451.1(e)(2); or (ii) a defendant breaches a duty under
Labor Code section 4622(a) and/or (b) or the Rules of the Administrative Director at an earlier
stage of the non-IBR dispute.
(B) A DOR may, but need not, accompany the petition.
(C) A copy of the petition and any DOR shall be concurrently served on: (i) the defendant(s); and
(ii) the employee or dependent. If any of these persons or entities is represented, service shall also
be made on the attorney(s) or hearing representative(s).
(D) A medical-legal provider is not required to file a claim of costs in the form of a lien in
conjunction with the petition or DOR. However, if the provider elects to file such a lien, it must
pay a lien filing fee, if applicable.
(4) Notwithstanding the filing of a DOR in accordance with the provisions of subdivisions (c)(2)
or (c)(3), if there is a threshold issue within the meaning of subdivision (c)(1)(A), the Workers’
Compensation Appeals Board may defer hearing and determining this issue until: (A) the issue is
presented for determination in the underlying claim of the employee or dependent; or (B) the
underlying claim of the employee or dependent has been resolved by a compromise and release
agreement or has been abandoned.
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§ 10451.1(2(d) Medical-Legal Expense Disputes Subject to Independent
Bill Review
(1) If a defendant has contested liability for any reason other than the amount payable
under an official medical fee schedule, that issue shall be resolved prior to IBR.
(2) If a non-IBR medical-legal expense dispute is resolved in the medical-legal
provider’s favor, then any outstanding issue over the amount payable under an official
fee schedule shall be resolved through IBR, if applicable.
(3) Any appeal of an IBR determination of the Administrative Director shall comply
with the procedures of section 10957. A claim of costs in the form of a lien need not be
filed, and a lien filing fee need not be paid, when a petition appealing an IBR
determination is filed.
(d) Medical-Legal Expense Disputes Subject to Independent Bill Review
(1) If a defendant has contested liability for any reason other than the amount payable
under an official medical fee schedule, that issue shall be resolved prior to IBR.
(2) If a non-IBR medical-legal expense dispute is resolved in the medical-legal
provider’s favor, then any outstanding issue over the amount payable under an official
fee schedule shall be resolved through IBR, if applicable.
(3) Any appeal of an IBR determination of the Administrative Director shall comply
with the procedures of section 10957. A claim of costs in the form of a lien need not be
filed, and a lien filing fee need not be paid, when a petition appealing an IBR
determination is filed.
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Medical-legal lien claims filed prior
to January 1, 2013
(e) Medical-Legal Lien Claims Filed prior to
January 1, 2013 under Former Labor Code
Section 4903(b)
Medical-legal lien claims filed prior to January
1, 2013 under former Labor Code section
4903(b) shall be subject to the lien conference
and lien trial procedures of section 10770.1,
subject to the timely payment of a lien activation
fee, if applicable
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(f) Waiver of Medical-Legal Expense Issues
(1) Waiver by a Defendant
(A) A defendant shall be deemed to have finally waived all objections to a medical-legal
provider’s billing, other than compliance with Labor Code sections 4620 and 4621, if:
(i) the provider submitted a properly documented billing to the defendant and, within 60
days thereafter, the defendant either (I) failed to serve an explanation of review (EOR)
that complies with Labor Code section 4603.3 and any applicable regulations adopted by
the Administrative Director and/or (II) failed to make payment consistent with that EOR;
or
(ii) the provider submitted a timely and proper request for a second review to the
defendant in accordance with Labor Code section 4622(b)(1) and, within 14 days
thereafter, the defendant either (I) failed to serve a final written determination that
complies with any applicable regulations adopted by the Administrative Director and/or
(II) failed to make payment consistent with that final written determination.
(B) A defendant shall be deemed to have finally waived all objections relating to a
medical-legal provider’s billing, other than the amount to be paid pursuant to the fee
schedule(s) in effect on the date the services were rendered and compliance with Labor
Code sections 4620 and 4621, if the provider submitted a timely objection to the
defendant’s EOR regarding a dispute other than the amount payable and, within 60 days
thereafter, the defendant failed to file both a “Petition for Determination of Non-IBR
Medical-Legal Dispute” and a DOR with the Workers’ Compensation Appeals Board as
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required by Labor Code section 4622(c)
and Rule 10451.1(c)(2).
(2) Waiver by a Medical-Legal
Provider
(A) A medical-legal provider’s bill will be deemed satisfied, and neither the
employee nor the employer shall be liable for any further payment, if the
defendant issued a timely and proper EOR and made payment consistent with
that EOR within 60 days after receipt of the provider’s written billing and
report and the provider failed to make a timely and proper request for second
review in the form prescribed by the Rules of the Administrative Director
within 90 days after service of the EOR.
(B) A medical-legal provider will be deemed to have waived any objection
based on the amount payable under the fee schedule(s) in effect on the date the
services were rendered if, within 14 days after receipt of the provider’s request
for second review, the defendant issued a timely and proper final written
determination and made payment consistent with that determination and the
provider failed to request IBR within 30 days after service of this second
review determination.
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(g) Bad Faith Actions or Tactics
(1) If the Workers’ Compensation Appeals Board determines that, as a result of bad faith
actions or tactics, a defendant failed to comply with the requirements, timelines, and
procedures set forth in Labor Code sections 4622, 4603.3, and 4603.6 and the related
Rules of the Administrative Director, the defendant shall be liable for the medical-legal
provider’s reasonable attorney’s fees and costs, if any, and for sanctions under Labor
Code section 5813 and Rule 10561. The amount of the attorney’s fees, costs, and
sanctions payable shall be determined by the Workers’ Compensation Appeals Board;
however, for bad faith actions or tactics occurring on or after the effective date of this
section, the monetary sanctions shall not be less than $500.
For purposes of this subdivision, “bad faith” actions or tactics by a defendant may
include but are not limited to:
(A) failing to timely pay any uncontested portion of a medical-legal provider’s billing;
(B) failing to make a good faith effort to timely comply with applicable statutory or
regulatory medical-legal timelines or procedures; or
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(g) Bad Faith Actions or Tactics
C) contesting liability for the medical-legal provider’s billing based on a dispute over injury, or
injury to a particular body part.
These attorney’s fees, costs, and monetary sanctions shall be in addition to any penalties and
interest that may be payable under Labor Code section 4622 or other applicable provisions of law,
and in addition to any lien filing fee, lien activation fee, or IBR fee that, by statute, the defendant
might be obligated to reimburse to the medical-legal provider.
(2) If the Workers’ Compensation Appeals Board determines that, as a result of bad faith actions
or tactics, a medical-legal provider has improperly asserted that a defendant failed to comply with
the requirements, timelines, and procedures set forth in Labor Code sections 4622 and 4603.6 and
the related Rules of the Administrative Director, the medical-legal provider shall be liable for the
defendant’s reasonable attorney’s fees and costs, if any, and for sanctions under Labor Code
section 5813 and section 10561. The amount of the attorney’s fees, costs, and sanctions payable
shall be determined by the Workers’ Compensation Appeals Board; however, for bad faith actions
or tactics occurring on or after the effective date of this section, the monetary sanctions shall not
be less than $500.
Authority: Sections 133, 4622(e)(2), 4627, 5307, 5309 and 5708, Labor Code.
Reference: Sections 139.5, 4603.3, 4603.6, 4620, 4621, 4622, 4903.05, and 4903.06, Labor Code;
Sections 9792.5.5(b)(2) and 9792.5.7(c)(5), title 8, California Code of Regulations.
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§ 10451.2.(c) Medical Treatment Disputes Not Subject to
Independent Medical Review and/or Independent Bill
Review
(1) Where applicable, independent medical review (IMR)
applies solely to disputes over the necessity of medical
treatment where a defendant has conducted a timely and
otherwise procedurally proper utilization review (UR).
Where applicable, independent bill review (IBR) applies
solely to disputes directly related to the amount payable to a
medical treatment provider under an official fee schedule in
effect on the date the medical treatment was provided. All
other medical treatment disputes are non-IMR/IBR disputes.
Such non-IMR/IBR disputes shall include, but are not
limited to:
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§ 10451.2.(c) Medical Treatment Disputes Not Subject to
Independent Medical Review and/or Independent Bill Review
(A) any threshold issue that would entirely defeat a medical treatment
claim (e.g., injury, injury to the body part for which treatment is
disputed, employment, statute of limitations, insurance coverage,
personal or subject matter jurisdiction);
(B) a dispute over a UR determination if the employee’s date of injury
is prior to January 1, 2013 and the decision is communicated to the
requesting physician prior to July 1, 2013;
(C) a dispute over whether UR was timely undertaken or was otherwise
procedurally deficient; however, if the employee prevails in this
assertion, the employee or provider still has the burden of showing
entitlement to the recommended treatment;
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§ 10451.2.(c) Medical Treatment Disputes Not Subject to
Independent Medical Review and/or Independent Bill Review
(D) an assertion by the medical treatment provider that the defendant has waived any
objection to the amount of the bill because the defendant allegedly breached a duty
prescribed by Labor Code sections 4603.2 or 4603.3 or by the related Rules of the
Administrative Director;
(E) an assertion by the defendant that the medical treatment provider has waived any
claim to further payment because the provider allegedly breached a duty prescribed by
Labor Code section 4603.2 or by the related Rules of the Administrative Director;
(F) a dispute over whether the employee was entitled to select a treating physician not
within the defendant’s medical provider network (MPN);
(G) an assertion by the defendant that an interpreter who rendered services at a medical
treatment appointment did not meet the criteria established by Labor Code sections
4600(f) and (g) and 5811(b)(2) and the Rules of the Administrative Director, as
applicable; and
(H) an assertion by the defendant that an interpreter was not reasonably required at a
medical treatment appointment because the employee proficiently speaks and
understands the English language.
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10451.3 Petition for Costs.
§ (a) A petition for costs is a petition seeking
reimbursement of an expense or payment for
service that is not allowable as a lien against
compensation under Labor Code section 4903. A
petition for costs may be filed only by: (1) an
employee or the dependent of a deceased
employee, (2) a defendant, or (3) an interpreter
for services other than those rendered at a
medical treatment appointment or medical-legal
examination.
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§ 10451.4. Petition to Enforce
Independent Bill Review Determination
§ 10451.4. Petition to Enforce Independent Bill Review Determination.
(a) A petition to enforce an independent bill review (IBR) determination
and/or the recovery of an IBR fee under Labor Code section 4603.6(c) may be
filed if:
(1) the Administrative Director has issued an IBR determination and order
requiring payment and either: (A) a petition appealing this determination and
order is not filed with the Workers’ Compensation Appeals Board; or (B) the
Workers’ Compensation Appeals Board has issued a final order affirming this
determination and order; and
(2) the defendant has not paid the full amount allowed, including any penalties
and interest payable under Labor Code section 4622(a) and/or any IBR fee
reimbursement payable under Labor Code section 4603.6(c), within 20 days of
finality of the determination and order, as extended by sections 10507 and
10508.
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§ 10451.4. Petition to Enforce Independent
Bill Review Determination
(b) Where the conditions of subdivision (a) are claimed, the medical treatment or medical-legal
provider is not required to file a section 4903(b) lien or a claim of costs lien and is not required to
pay a lien filing or activation fee.
(c) The caption of the petition shall identify it as a “Petition to Enforce IBR Determination.”
(d) The petition shall append a copy of Administrative Director’s IBR determination and order
requiring payment and, if an appeal was filed, a copy of the Workers’ Compensation Appeals
Board’s final order affirming this determination and order.
(e) If the petition to enforce is filed by a person or entity who is not already a party or lien
claimant of record, the petition shall be accompanied by a notice of representation, even if the
petitioner is self-represented.
(f) The petition to enforce may include a request for penalties and interest in accordance with
Labor Code section 4603.2(b) and/or section 4622(a). For purposes of penalties and interest, a
final decision of the Workers’ Compensation Appeals Board that affirms a determination of the
Administrative Director requiring payment shall be deemed an “award.”
(g) Within 15 days of the filing of the petition to enforce, the Workers’ Compensation Appeals
Board shall issue a notice of intention to grant or deny the petition, in whole or in part. The notice
of intention shall give the petitioner and any adverse party no less than 15 calendar days to file
written objection showing good cause to the contrary. If no timely written objection is filed, or if
the written objection on its face fails to show good cause, the Workers’ Compensation Appeals
Board, in its discretion, may: (1) issue an order regarding the petition to enforce, consistent with
the
notice of intention; or (2) set the matter
for hearing.
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WCAB Requirements
“We must also point out that the Petition submitted by Good Samaritan
fails to comply with the basic requirements regarding content of a
Petition. (Cal. Code Regs., tit.8, § 10842) The Petition was drafted in
such a manner that it is very difficult to understand what issues were
actually being raised. For example, the first argument refers to a
clerical error which is of no consequence. The second argument refers
to a finding by the WCJ but the actual argument being made cannot be
determined. The third argument is a quotation from a panel decision
with no reference to the trial record as to why the quote may be
relevant. Finally, as discussed below, arguments 4 and 5 misconstrue
the requirements of section 4609. Counsel for Good Samaritan will be
sanctioned if such conduct is repeated in the future.”
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WCAB Requirements
“Defendant is strongly admonished that filing a
Petition for Reconsideration from an order which
is clearly not final is impermissible conduct
since it wrongly deprives the trial court of
jurisdiction. Such conduct will not be tolerated
and will result in sanctions if repeated.
Moreover, defendant's petition erroneously fails
to state legal grounds and argues issues not heard
or decided by the WCJ.”
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WCAB Requirements
“Since defendant failed to respond to the Notice
of Intention within the time provided, it cannot
complain that it was not provided an opportunity
to be heard. Finally, we concur with the WCJ
that defendant's conduct in intentionally altering
a final order warranted the imposition of a
sanction.”
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WCAB Requirements
“Petitioner is admonished for attaching an extra
medical report to his petition, in violation of
WCAB Rule 10842, and we reject his
supplemental petition, filed in violation of
WCAB Rule 10848.(Cal. Code Regs., tit. 8, §§
10842, 10848.) 21 Petitioner may face sanctions
for any future violations. (Lab. Code, § 5813.)”
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WCAB Requirements
“Although we will rescind the challenged Orders, we note the
propensity of Lien Claimants and their hearing representatives to assert
in petitions filed with the Appeals Board under penalty of perjury, like
the petition in this case, that notices served by defendants and the
WCAB were not received. The frequency of those claims in the face of
contrary proofs of service appears to support the imposition of
sanctions against Lien Claimants and their hearing representatives for
filing a petition containing a false statement of material fact. Filing a
petition that contains a false statement of material fact is sanctionable
conduct under Labor Code section 5813 as described in Appeals Board
Rule of Practice and Procedure, Rule 10561.”
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WCAB Requirements
“Our review of the file in this matter indicates that the
WCJ has legitimate grounds to be frustrated with the
conduct of lien claimant. Lien claimant's actions in filing
the same lien under two different names and the filing of
a frivolous Petition for Reconsideration has resulted in a
waste of the court's time. We admonish lien claimant that
this conduct may constitute an abuse of the workers'
compensation system and is unacceptable. Continued
actions of this nature by lien claimant may constitute bad
faith tactics and may warrant the imposition of sanctions
pursuant to section 5813.”
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WCAB Requirements
“When a lien claimant states in a petition for reconsideration
that it does not know why its representative did not appear, it
not only fails to demonstrate good cause and to adhere to the
rules of professional conduct, it wastes the Board's time to the
point of exasperation and sends the message that only the
repeated imposition of sanctions will demonstrate to lien
claimants that compliance with the Board's rules must become
their norm. Finally, we add that even if the petition for
reconsideration had not been dismissed as untimely, it would
have been denied on the merits, for the reasons stated in the
WCJ's Report.”
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WCAB Requirements
“Finally, we note that defendant has filed a
petition with 92 pages of exhibits in violation of
Appeals Board Rule 10842(c), which expressly
prohibits the attachment of documents which
have already been received in evidence or which
have already been made part of the adjudication
file. Rule 10842(c).”
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WCAB Requirements
“It is first noted that the Petition was not verified. Lien Claimant was
given notice of this defect in its Petition by the argument made by
Defendant in its Answer. To date Lien Claimant has not corrected this
defect."
“However, considered on its merits, the Petition does not set forth any
facts indicating that Lien Claimant was in any way aggrieved by the
Order dismissing its lien and as such the Petition would be denied.”
“Notwithstanding this, we conclude that lien claimant's Response does
not demonstrate good cause; indeed, it does not demonstrate any cause.
It is merely a bare declaration of "good faith" that makes no factual or
legal showing of good cause why we should not issue sanctions.”
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WCAB Requirements
“Petition is admonished that is improper to file a Petition for Reconsideration from a
Notice of Intention which is clearly not a final order. This places an unnecessary burden
on the judicial system. Such conduct may result in the imposition of sanctions in the
future.”
“Misrepresenting material facts in a frivolous, untimely, verified petition for
reconsideration filed with the Appeals Board is sanctionable conduct under section
5813, as described in Appeals Board Rule 10561.”
“Applicant's petition is so lacking in supporting evidence and substantive merit that it
may fairly be characterized as frivolous, and filing a frivolous petition supports the
imposition of sanctions. (Lab. Code, § 5813; Cal. Code Regs., tit. 8, § 10561.)
However, we instead exercise our discretion to admonish applicant's attorney that
future violations of Labor Code section 5813 and/or the Rules of Practice and
Procedure of the Appeals Board (Cal. Code Regs., tit. 8, §§ 10300 - 10999) may lead to
the imposition of sanctions.”
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WCAB Requirements
“In other words, despite Welch's statement under penalty of perjury that
he had read, i.e., reviewed, the original Petition before filing it, his
reason for filing the Amended Petition was that he had not reviewed,
i.e. read, the original Petition. We remind lien claimant that the Appeals
Board takes the requirement of verification under penalty of perjury
seriously, and sanctions may be imposed for a verification which is
false or made frivolously. (Lab. Code, § 5813, Cal. Code Regs., tit. 8, §
10561.)”
“Furthermore, as noted by the WCJ in his Report, a review of the
Electronic Adjudication Management System indicates that lien
claimant is on the official address record and was properly served with
notice of the lien conference. Petitioner is admonished that future
misrepresentation will result in sanctions.”
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WCAB Requirements
“Here, we do not believe that lien claimant or lien claimant's representatives have
shown that they acted with reasonable justification in filing a petition for
reconsideration on the grounds that lien claimant had not had an opportunity to be
heard, when lien claimant failed to appear at the hearing after notice and lien claimant
and lien claimant's representative made multiple misrepresentations in the petition for
reconsideration. We conclude that lien claimant and lien claimant's representatives have
engaged in bad faith and frivolous actions that were frivolous or solely intended to
cause unnecessary delay. (Lab. Code, § 5813, subd. (a); Cal. Code Regs., tit. 8, §
10561, subd. (b).)”
“More important, his allegation of "technical difficulties" in paying the lien activation
fee, without reference to any specifics or evidence to support the allegation, is the same
thing as outright misrepresentation. It will be considered an invitation to impose
sanctions whenever it is raised. At the same time, we also admonish defendant for
attaching to its answer documents that are already lodged in EAMS. (Cal. Code Regs.,
tit. 8, § 10842.)”
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WCAB Requirements
“We deny lien claimant's petition for reconsideration for the additional reason
that the petition is unintelligible and violates the requirements of WCAB Rule
10842(a) and (b). (Cal. Code Regs., tit. 8, 17 10842.) The rule requires clear
and specific reference to evidence which supports the petitioner's contentions.
Lien claimant fails to refer to any evidence in alleging on page five of its
petition that "applicant was referred by the secondary treating physician on the
advice of the treating physician pursuant to and in compliance with applicable
ACOEMIAMA Guidelines to assess symptomology due to pain and to
determine if any counterbalancing factors such as maladjustment [sic]." Lien
claimant repeats this allegation on page six, again unsupported by specific
reference to any evidence. As pointed out on page two of the WCJ's Report, it
appears that lien claimant labors under the mistaken impression that the WCJ
and the WCAB are here to help make the lien claimant's case.”
7/7/2015
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Overview of 2014 Collections
Disputes - Treatment - Payments WCAB
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April 25, 2014
7/7/2015
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