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 • • • • • • • • • • • • 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 • • • • • • • 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 • • • • • • • 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 • 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
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