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Bifurcating Lien Trial Not Due Process Violation

Happy Friday, dear readers!

Have you gotten a chance to review the Salas case, recently denied review by the Court of Appeal?  It’s the one where lien claimant Southland Spine and Rehabilitation Medical Center complained about bifurcation of issues resulting in a total bar to the lien claim.

Ms. Salas sustained an admitted injury to her back and sustained a stress claim to boot.  She treated with Southland, which was outside of defendant’s MPN, but when the case settled by way of C&R, Southland showed up with its hand out.

The issues were bifurcated to allow the defendant to present its MPN defense, and all other issues were deferred.  When the WCJ found that defendant’s valid MPN barred Southland’s liens, Southland sought reconsideration.  The basis for the petition was the alleged defect under section 9767.12 in that there was no notice to the applicant in Spanish, and that Southland was denied due process when the issues were bifurcated.

Defendant showed that MPN notices were sent, and that applicant was treating within the MPN until she switched to Southland.  Defendant was also able to provide objection letters following the switch out of the MPN.

Defendant also cited the Knight case, where the WCAB held, en banc: “an employer or insurer’s failure to provide required notice to an employee of rights under the MPN that results in a neglect or refusal to provide reasonable medical treatment renders the employer or insurer liable for reasonable medical treatment self-procured by the employee.”  As applicant was receiving treatment within the MPN until she switched, any potential defects in the notices did not result in the “neglect or refusal to provide reasonable medical treatment.”

And recall, dear readers, that the WCAB has expressed similar reasoning before.

The WCJ also noted that even if applicant could not read English, her attorney, who received a copy of the notice, could read English, and so notice could be provided to the injured worker through her attorney.

The WCAB denied reconsideration and the Court of Appeal denied review.

Now here’s an interesting thought on the bifurcation issue: what possible harm was done to the lien claimant by requiring that the threshold issue of the MPN defense be addressed first?  Lien claimants and their representatives are aware of reserve requirements and the benefits to a defendant in closing a file.  For that reason, tactically, some lien claimants will attempt to delay trial or resolution, just to increase the costs associated and bring more money to the settlement table.

Don’t let them get away with it!

There are legitimate liens out there, sure – and those are the ones that should be paid.  Your humble blogger has seen instances of written authorization to treat next to bill denials: these things happen.  But when a treating facility is advised (and regularly) of a defendant’s MPN, and the treatment continues, there’s no sympathy to be found.  After all, one does not get an orphan’s leniency when being tried for the murder of one’s parent.

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