And a happy Friday to my beloved readers.
Just yesterday, the WCAB issued an en banc decision, which means that your regularly scheduled blog post got the bump to bring you the latest in guidance from the WCAB. And this time I am happy to report it is something defendants can cheer for.
The case is Ashley Colamonico v. Secure Transportation, and the basic idea is that applicant alleged a cumulative trauma injury and, through her attorney, engaged the lien claimant in question to obtain records from various locations. Defendant responded to various invoices with explanations of review.
After trial, the WCJ ruled that defendant waives objections based on Labor Code section 4620 and 4621 by not raising them as part of its explanation of review, and that further that lien-claimant photocopy service was owed its invoices as well as penalties and interest.
However, the WCAB reversed. And this is where the fun begins.
Labor Code section 4620 provides in pertinent part that medical-legal expenses include “medical records” for the “purpose of proving or disproving a contested claim.” Subsection (b), in turn, defines a “contested claim” as when an employee is seeking a benefit arising out of a claimed industrial injury and the employer rejects liability for the benefit, fails to accept liability within a reasonable time, or fails to respond to a demand for payment of benefits.
So, in theory, the applicant should demand a benefit (TD, PD, Medical, etc.) and when the employer refuses to provide it for whatever reason, then the applicant can incur costs such as subpoenaing medical records to help prove his or her claim. But that’s not what happens on a regular basis.
Instead, an injured worker gets triaged by an applicant attorney’s intake process, and during that triage, every place that has medical records is disclosed by the injured worker to his or her attorneys, and then a subpoena is issued for all the treatment locations.
So picture this, dear readers – an applicant retains counsel to help navigate the system. The defendant has accepted the claim and is paying temporary disability and providing medical benefits. Where is the contested claim? Well, there isn’t one, but when you’re in a volume business odds are you’re not investing too much time in determining if you really need the records or not.
So let’s go back to the case of Colamonico. The en banc opinion notes that while Labor Code section 4622 allows for reimbursement of medical-legal costs, such as obtaining medical records, compliance with Labor Code section 4620 is a prerequisite. So the burden falls upon the lien claimant to show a contested claim.
Furthermore, the lien claimant must also show that the costs incurred were reasonably, actually, and necessarily incurred “for the purpose of proving or disproving a contested claim.”
Further, the WCAB found that failure to respond to a medical-legal bill does NOT waive the arguments afforded defendants in Labor Code sections 4620-4622.
Ok, so what’s the take-away?
Medical-legal bills pertaining to subpoenas of medical records must be required to face three hurdles.
First, the lien claimant must demonstrate that when the services were performed, there was a contested claim – what benefit was being sought that was not being provided by the defendant?
Second, the lien claimant must show that the services provided were to address the disputed claim – would subpoenaing records from the employer go towards proving a benefit being demanded by the applicant and refused by the defendant?
Third, the lien claimant must show that the services were reasonably, actually, and necessarily incurred. Is the fee reasonable? Is there an argument that, because defendant had subpoenaed and provided the same records to the applicant’s attorney, this second set of records from the same location were not necessary or reasonable?
Well, dear readers, what do you think? Will this decision come in handy in attacking those pesky liens? I’m certainly looking forward to having this fly-swatter in my tool bag!
Have a good weekend!