WCDefenseCA

Happy Monday, dear readers!

Your humble blogger appeared recently on a lien claim and was presented with the following argument, which I’m sure many of you have encountered as well:

“Uhh… this isn’t IMR territory… this is, umm… coding dispute! Yeah, that’s the ticket, it’s a coding dispute!”

Suddenly, your humble blogger was reliving his childhood as he told his disappointed parents “I don’t want to be a coder! I want to go to law school and deny workers’ comp benefits!”

“Uhhh… Humble Blogger, you there?” woke me from my flashback and I got back into the matter at hand.

We ultimately resolved the lien for less than what it would have cost for a (very reasonably priced) attorney to take it to trial.  But it got me to thinking – how much mileage does this argument get?

Labor Code section 4903.05(c)(1) requires lien claimants to state, under penalty of perjury, that their liens are NOT subject to Independent Bill Review (IBR).  That is, if the only dispute between the defendant and the lien claimant is the amount of payment due for the services provided, the issue goes to IBR and NOT to the WCAB.

As per section 4603.6, the defendant reviews the bill and provides an appropriate payment.  The lien claimant then either accepts that as final or requests a re-review.  Then if the re-review does not satisfy the lien claimant, it has 30 days to request IBR.

In theory, this should clear the decks at least a little bit for the WCAB to resolve actual disputes such as those affecting the injured worker’s claims to benefits.

IBR is a whole lot cheaper and more efficient than having a defense attorney appear at the WCAB and then possibly take the matter to trial, so the lien claimants would naturally prefer the more expensive route so they can shake down the defendants for more money.

Well, how do they get around the whole IBR thing then?  Well, the argument goes that the dispute is about anything other than billing, such as whether the procedure get to be coded as a separate item or as part of an already-paid for item.  For example, if billing code XYZ is for a series of up to 3 injections, but the lien claimant billed each injection as its own code XYZ, the first one might be paid but the second and third would be rejected by the defendant.

Well, that’s the argument that was also advanced in the case of Senquiz v. City of Fremont, a panel opinion issued back in November of 2017.

In Senquiz defendant refused to pay for two of the injections performed by lien claimant, and a WCJ found that the matter was NOT subject to IBR because when defendant’s position is that it need pay $0 out of the demanded amount, it is not a billing dispute but rather a dispute over liability for the treatment or whether the treatment was reasonable at all.

The WCJ also opined that because bill review rejected payments based on Medicare’s CCI editing process, which are not expressly adopted by the Labor Code.

The WCAB reversed, however, reasoning “the only issue that must be resolved in order to determine the amount lien claimant is owed under the OMFS is whether the relevant bills used the correct procedure codes.  If the WCAB had jurisdiction to resolve that question, the WCAB would effectively be determining the amount due under the fee schedule.”

The WCAB ruled that the lien was subject to IMR.  Presumably, if applicant failed to timely seek IMR, the lien bills would be “satisfied” by operation of law.

I took a look for similar cases and found Tepfer v. San Diego Gas & Electric, which had a similar ruling.

What do you think, dear readers?  Is a dispute about whether the proper billing codes were used sufficient to escape IBR?  Or should defendants start taking these to trial in the hopes of pursuing subsequent “res judicata” defenses against repeat-player lien claimants?