WCDefenseCA

Good morning, dear readers!

Here we are again on a gorgeous Monday.  In the immortal words of Alice Cooper, school’s out for the Summer, and I’m sure California’s children are eager to finally get to stay home for the Summer, having stayed home for the Spring.  Parents everywhere are reaching the conclusion that maybe, just maybe, the teachers weren’t the problem, and both defense attorneys and adjusters with young kids are begrudgingly realizing that maybe psyche claims filed by educators have some merit.

So your humble blogger has for you today a really well written panel decision, laying out the procedures for dealing with med-legal liens.  The case is Termini v. The Kroger Company, in which a WCJ awarded about $2.5k in reimbursement to medical-legal copy service lien claimant, but the WCAB sent it back for development of the record consistent with the panel’s procedure.

The panel laid out the lien procedure as follows:

1. Initially, and as a threshold issue, the copy-service lien claimant bears the burden of showing that as per Labor Code sections 4620, a “contested claim” existed, meaning the employer has rejected liability for the claimed benefit, fails to accept liability after a reasonable time to investigate, or fails to respond to a demand for payment after expiration of a period fixed by statute; and also as per Labor Code section 4621, for medical-legal exams. (This is per the en banc decision in Colamonico)
2. Aside from this burden placed upon the lien claimant, a defendant has 60 days to review a medical-legal bill or invoice and either pay it in full or less that the full amount.  Assuming the lien claimant can recover, eventually, it would be entitled to 10% increase for all unpaid sums and 7% interest per year as per LC 4622.
3. However, the penalty can be avoided with an Explanation of Review (EOR), to which the lien claimant must respond with either a request for second bill review or file an objection to the EOR, which must be made within 90 days of service of the EOR for dates of service before 7/1/15.
4. If a timely objection was filed to the EOR the defendant must then file a Petition for Determination of Non-IBR Medical Legal Dispute and declaration of readiness to proceed within 60 days, or waive all EOR-based objections.  (California Code of Regulations section 10451.1 as cited in the panel decision, but has been renumbered to 10786)
5. After all that, it is still the lien claimant’s burden to establish the reasonable value of its services.

In considering this case, the WCAB panel also reached the conclusion that the case of Otis v. City of Los Angeles, a prior en banc decision, is no longer good law in light of Colamonica.

This case was sent back to the WCJ for further development based on this guidance, but it’s helpful to all of us practitioners on how to assess and value med-legal lien claims.  Perhaps this panel opinion can also remind lien-claimants that unless there is a contested claim – unless they can point to a specific benefit demanded that was denied – there is no recovery under LC4620.