 | SB 403, Affecting Statutory Filing of Liens |
April 29, 2009
Richard J Boggan JD
After a public meeting on SB 403 it appears that it will not become law any time soon as written, unless the author makes some major changes,
Cal Lab Code § 4903.5 (2008) state as follows
(a) No lien claim for expenses as provided in subdivision (b) of Section 4903 may be filed after six months from the date on
which the appeals board or a workers' compensation administrative law judge issues a final decision, findings, order, including
an order approving compromise and release, or award, on the merits of the claim, after five years from the date of the injury for
which the services were provided, or after one year from the date the services were provided, whichever is later. ................
| Collections Strategy |
April 22, 2009
Richard J Boggan JD
The summer months are coming and with that vacations and slow collection months for medical providers as defense attorneys and insurance
suggest that medical providers start filing Declaration of Readiness (DORs) so your liens can be resolved or cleared before the
vacations begin.
| Denial of Authorization |
April 19, 2009
workcompliens.com
I recently fielded a question where someone asked what happens when the treatment was not authorized. When treatment is not authorized it is not
schedule dispute. Authorization means assurance that appropriate reimbursement for a specific treatment will be paid. (8 CCR
§9792.6(b)) There exists no law that states that if treatment is not authorized then the medical provider does not get paid. Lack
of authorization is a denial of treatment it does not mean that the treatment was not reasonable or necessary or that eventually
the provider does not get paid it just means a dispute as to whether the treatment was necessary now has surfaced. So do not
be afraid of the word “Authorization”, and become knowledgeable about utilization review and how it must be done as it is
mandatory when the employer is denying medical treatment.
| Psychiatric Injury and Pain Management |
April 10, 2009
by workcompliens.com
There exists several aspects of psychiatric injury and or psychiatric treatment. There is the claimed psychiatric injury from events that happened at
events) and the most widely used is the psychiatric treatment for the consequence of being injured (i.e., treating the
consequence of the orthopedic injury or pain management).
In the 1990s, a practice by some in the industry, caused a significant change in some of the laws addressing psychiatric injury.
What use to happen is that “cappers” (not sure if that’s the right word), use to take a van to the unemployment offices and ask
people standing in line if getting laid off or fired from work caused them emotional distress and when they affirmed the “capper”
would explain to them that filing a workers’ compensation claim would give them more benefits than filing an unemployment claim.
So the van was loaded up and the potential applicants were taken to medical providers who would pay for each patient and a
workers compensation claim was filed. In response to such practice, the post termination defense (Labor Code § 3208.3(e)) was
created stating that if a claim was filed after termination for psychiatric injury it was barred. However, the practice of the above
caused a prejudice for the treatment of psychiatric injury that has just recently turned around where the law now reflects the
need for psychiatric treatment in most cases as reflected in case law that the treatment of psychiatric consequence of an
orthopedic injury is necessary, as being injured and going through the workers compensation system does necessity the
treatment of the emotional stress and related consequences.
What I see a lot of today, is that the psychiatric injury, and or treatments are being settled, where the case in chief will be
resolved with the stipulation that no psychiatric injury happened, or settlements negating the potential recovery for the Lien
Claimant that provides psychiatric treatment. Hopefully, the material contained herein will show that recovery for psychiatric
treatment is obtainable in most circumstances.
| Utilization Review and Authorization for Medical Treatment |
April 05, 2009
by Richard J Boggan JD
I have received numerous questions as to utilization review and denial of authorization from medical providers. Utilization review
providers treatment. There exists more case law interpreting utilization review and authorization issues than I have seen in along
time, and it touches every aspect of every other law and regulation as to when a medical provider gets paid. Here are some
valid and answerable questions:
1. The treating physician in his or medical report recommended additional treatment for chiropractic treatment over the 24-
visit-cap and no objection to the additional treatment was made and or not made in 20 days, does the provider get paid for those
additional treatments?
2. The provider requested authorization for treatment and the insurance company responded that the provider was not part
of an MPN, no utilization review was done on the medical treatment requested , was that a proper notification to the medical
provider of the existence of an MPN, and is the treatment considered authorized?
3. What is a request for authorization from a secondary treating medical provider that triggers, the mandatory utilization
review, is it the referral from the primary treating physician that is considered a request for authorization for treatment by the
secondary physician.
There is a magnitude of information contained at the Department of Workers Compensation web page and cases that have come down
regarding utilization review and authorization which makes the task of reading all the material a major undertaking that has been put off by many
providers forgoing potential recoverable medical costs. In response, to this need I encourage medical providers and representatives to email actual
cases where these issues arise and they will be shown on this web page with case and regulator law interpretation to show how the process
works. Every week something will be published on these issues or for comprehensive information.
| The Present State Of Law And Its Exceptions, That SB 403 Is Trying To Change (making it one year to file a lien from date of EOB /EOR | |
| and or objection or lose your right to assert a lien) |
March 28, 2009
workcompliens.com
Cal Lab Code § 4903.5 (2008) state as follows
(a) No lien claim for expenses as provided in subdivision (b) of Section 4903 may be filed after six months from the date on which the appeals
board or a workers' compensation administrative law judge issues a final decision, findings, order, including an order approving compromise and
release, or award, on the merits of the claim, after five years from the date of the injury for which the services were provided, or after one year from the
date the services were provided, whichever is later. ...............................
| Lien Claimants Are Getting Issued “Notice of Intention To Dismiss Lien Claim” For Failure to Appear At Hearings Other Then Lien | |
| Hearings. |
March 25, 2009
by Richard J Boggan JD
I have been receiving at lest three to four requests a week in the last two months from different medical providers (Lien Claimants) who have
received a “Notice of Intention To Dismiss Lien Claim” for failure to appear at various hearings, other then Lien Conferences and
or Lien Trials who have requested a drafted response.
8 CCR 10240 ( set forth in full at end of this article) puts forth the requirements for necessary and unnecessary appearances by
Lien Claimants. The regulation was adopted to allow the necessary parties to appear at the proceedings, and to prevent
unnecessary appearances on the part of the Lien Claimants.....................................
| California Medical Providers Mystified By MPNs (Medical Provider Networks) |
by Richard J Boggan JD
March 24, 2009
I continually get questions from Lien Claimants who state that their medical bills are being denied because they treated outside an MPN, asking
Insurance Carriers that all rules would be followed, however this is not the case, as cases continually come down where medical
providers who treat outside the MPNs are getting paid.
| MPNS (MEDICAL PROVIDER NETWORK) AND SAMPLE RESPONSES |
By Richard J Boggan JD
As a rule a medical provider will not treat in a non-emergency situation if they know they will not get paid so look at the facts of the case and
| GETTING PAID FOR NON-INDUSTRIALLY CAUSED INJURY |
There are several circumstances where a provider must treat a non-industrial injury in order to treat an admitted industrial injury. The law
non-industrial injuries and knowing that it would be difficult if not impossible to divide or apportion the cost between industrially
related and non-industrially related treatment......................................................................
| DISCOVERY, THE NEED TO RESPOND |
By Richard J Boggan JD
Although, what is discoverable has its long radius of inclusion, it does not mean that all things that the defense requests are discoverable, and must
be responded to before the defense gets a motion to compel discovery from the Judge. . ..
| LACHES, DOCTRINE OF – |
Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights; Neglect to assert a right or claim that,
been done to assert a claim or right for an unreasonable and unjustified time causing disadvantage to
another...............................................
| REVISITING MPNS (MEDICAL PROVIDER NETWORK) AND SAMPLE RESPONSES |
By Richard J Boggan JD
As a rule a medical provider will not treat in a non-emergency situation if they know they will not get paid so look at the facts of the case and
increase..................................................
| GETTING PAID FOR NON-INDUSTRIALLY CAUSED INJURY |
There are several circumstances where a provider must treat a non-industrial injury in order to treat an admitted industrial injury. The law
non-industrial injuries and knowing that it would be difficult if not impossible to divide or apportion the cost between industrially
related and non-industrially related treatment. ..............
RESPONDING TO "NOTICE OF INTENTION TO DISALLOW LIEN"
By Richard J Boggan JD
I continually see and hear about medical providers getting a “Notice of Intention to Disallow Lien” and not responding, than wondering what to do
next. You have to show respect to the court when a Judge issues anything regardless of its content and to that which is requested, the medical
provider must respond. Not responding, negates any legal issues as to the merits of your case and now the issue is the failure to respond and in
some Judges mind a lack of respect for the Judge and Judicial System is the issue. This also applies to discovery , i.e., notices to produce served
by the defense attorney, even if you cannot or will not produce everything asked for you still must respond and or object to that which is
requested...................................................................
| MPNS ( Medical Providers Networks) |
By Richard J Boggan JD
I often come across the question asking how one gets paid if the applicant was part of an MPN and the treating medical provider was not? In order
offered adequate medical treatment, and they must be informed as to their rights and
responsibilities..................................................
| Cal Lab Code § 4903.5 (2008) Should there be a "Tolling of The Statute of Limitations" |
§ 4903.5. Time period for filing lien for expenses; Applicability
(a) No lien claim for expenses as provided in subdivision (b) of Section 4903 may be filed after six months from the date on which the appeals
compromise and release, or award, on the merits of the claim, after five years from the date of the injury for which the services
were provided, or after one year from the date the services were provided, whichever is
later......................................................................
| GETTING PAID AFTER 24-VISIT CAP ON PHYSICAL MEDICINE |
In 2008 AB 1073 was adopted to exempt post-surgical patients from 24-visit caps on physical therapy and chiropractic care if the physical medicine
providers are still not getting paid when their treatment exceeds 24 visits, prior to
2008...........................................................................................................................
| WHERE TO FILE AN APPLICATION |
A lien claimant, lien representative or lien service company cannot file an application based on where it does business. Labor Code section 5501.5
(1) In the county where the injured employee or dependent of a deceased employee resides on the date of filing.
(2) In the county where the injury allegedly occurred, or, in cumulative trauma and industrial disease claims, where the last
alleged injurious exposure occurred.
(3) In the county where the employee's attorney maintains his or her principal place of business, if the employee is represented
by an attorney.
If a lien claimant, lien representative or lien service company files an application in an inappropriate venue, the application will be
rejected.
| Boehm , &, Associates v. Workers' Comp. Appeals Bd., 108 Cal. App. 4th 137, 133 Cal. Rptr. 2d 396, 2003 Cal. App. LEXIS 616, 68 Cal. | |
| Comp. Cas. (MB) 548, 2003 Cal. Daily Op. Service 3562, 2003 D.A.R. 4515 ( Cal. App. 3d Dist. 2003) |
As indicated previously, section 14124.791, subdivision (a) specifically states that a provider that has rendered services to a beneficiary and that has
received payment under the Medi-Cal program is entitled to file a lien for all fees and services. That section goes on to say that a medical provider
may "recover" only if it has reimbursed any fees paid by Medi-Cal. Similarly, section 14019.3, subdivision (d) reads: "Notwithstanding subdivision (c),
payment received from the state in accordance with Medi-Cal fee structures shall constitute payment in full, except that a provider, after making a full
refund to the department of any Medi-Cal payments received for services, may recover all provider fees … ." (Italics added.)
As is clear from the language used by the Legislature, a medical provider may not recover until it has first reimbursed Medi-Cal. By express provision,
a provider need not reimburse Medi-Cal before asserting its lien claim. The providers, not yet having recovered on their lien claims, are not yet called
upon to reimburse Medi-Cal. The point at which there is a recovery within the meaning of the statutes is not before us in this appeal.
| CASE LAW MAY ALLOW MEDICAL PROVIDERS TO COLLECT ADDITIONAL REVENUE |
| DURABLE MEDICAL EQUIPMENT AND OUTPATIENT SURGERY BILLING |
| REVIEW COMPANIES |
| INSURER DID NOT COMPLY WITH 14-DAY STATUTORY DEADLINE......... |
| SILENT PPO CONTRACTS | |
- "Thus we have determined the restitution orders were unfair and must be annulled.”
June 22, 2009
Richard J Boggan JD
It appears that some defense attorneys had a meeting and some have found a new or reinvented an old strategy to deny medical providers just
compensation for medical treatment rendered to an injured worker. I have seen a lot of defense attorneys putting reimbursement as an issue for
court or filing a petition for reimbursement as retaliation for medical providers seeking to get paid their fees under the fee schedule and or usual
and customary fees. In addition I have seen this ploy work as some medical providers, get upset and just withdraw their lien. The law does not
favor reimbursement unless it is a dupe payment.
American Psychometric Consultants Inc. v. Workers' Compensation Appeals Bd., 36 Cal. App. 4th 1626, 43 Cal. Rptr. 2d 254, 60 Cal. Comp. Cas.
(MB) 559, (Cal. App. 2d Dist. 1995)
“Approving restitution in these cases would set a precedent which would have unfortunate consequences for the workers' compensation system. It
would introduce the possibility of continued transactional instability so negative it would impact the number of medical providers willing any longer
to participate in the system by evaluating workers with industrial injuries. No one can operate a business on receipts only conditionally possessed,
and medical providers are no exception. Thus we have determined the restitution orders were unfair and must be annulled.”
- Lien Claimants Are Getting Issued “Notice of Intention To Dismiss Lien Claim” For Failure to Appear At Hearings Other Than Lien
Hearings.
June 29, 2009 -Republished
by Richard J Boggan JD
I have been receiving at lest three to four requests a week in the last two months from different medical providers (Lien Claimants) who have
received a “Notice of Intention To Dismiss Lien Claim” for failure to appear at various hearings, other then Lien Conferences and or Lien Trials
who have requested a drafted response.
8 CCR 10240 ( set forth in full at end of this article) puts forth the requirements for necessary and unnecessary appearances by Lien Claimants.
The regulation was adopted to allow the necessary parties to appear at the proceedings, and to prevent unnecessary appearances on the part of the
Lien Claimants......................................................................
 |  |  |  |  |
July 19, 2009
workcompliens.com
"To the extent that the WCJ finds that the notice described in Labor Code § 4904(a) was given to the defendant, we find that the defendant was
required to comply with WCAB Rules 10886, 10888, and 10890. Pursuant to Labor Code § 4904(a), When a defendant has been given written
notice ''setting forth the nature and extent of any claim that is allowable as a lien,'' a lien is created in favor of the claimant. WCAB Rule 10886
explicitly requires a defendant to serve a lien claimant with a compromise and release when a lien has been served on the defendant regardless of
whether the lien claim has been filed with the WCAB. We also note that Rules 10888 and 10890 are not limited in their application to lien claimants
who have filed their liens with the WCAB.".................
July 19, 2009
workcompliens.com
The goal is to ensure that injured employees who have to undergo surgery to repair their injuries are never left in a situation where appropriate
physical medicine services such as physical therapy are unavailable due to the 24-visit cap. ..........................
DENIED CLAIMS AND SELF-PROCURED MEDICAL TREATMENT(CORRECTED)
By Richard J Boggan JD
Initially cases are denied and than the medical legal dance takes place. The case in chief is than resolved in the majority of cases with a “Thomas
Finding”, which states in the settlement documents legally sufficient grounds that if the case was be tried on the merits that the applicant would take
nothing.
CASE LAW SELF-PROCURED MEDICAL TREATMENT AND MPNs (Medical Provider Networks)
June 12, 2009 - Republished
by Workcompliens.com
“The Board held that an employer or insurer's failure to provide required notice to an employee of rights under the MPN (medical provider network)
June 12, 2009 - Republished
by Workcompliens.com
 | Bruce Knight, United Parcel Service; and Liberty Mutual Insurance Company October 10, 2006 71 Cal. Comp. Cases 1423 |
“The Board held that an employer or insurer's failure to provide required notice to an employee of rights under the MPN (medical provider network)
self-procured by the employee.”
| Jennifer Balkowitsch, Applicant v. Home Depot, PSI, adjusted by Sedgwick Claims Management Services, Defendants, 2008 Cal. Wrk. | |
| Comp. P.D. LEXIS 567, Opinion Filed August 11, 2008 |
| Authority to Award Above Fee Schedule |
May 06, 2009
by workcomppliens.com
8 CCR 9792.5
Ҥ 9792.5. Payment for Medical Treatment
(c) To be properly documented, a bill for medical treatment which exceeds the amount presumed reasonable in the Official Medical Fee
excess charge.”
Gould v. Workers' Comp. Appeals Bd. (1992) 4 Cal. App. 4th 1059, 1068-1069 [6 Cal. Rptr. 2d 228]. The court held;
“In deciding whether fees in excess of the schedule are reasonable, the WCAB may consider evidence regarding the medical provider's training,
qualifications, and length of time in practice; the nature of the services provided; the fees usually charged by the medical provider; the fees usually
charged in the general geographical area in which the services were rendered; other aspects of the economics of the medical provider's practice
that are relevant; and any unusual circumstances in the case. We emphasize, however, that, although unusual circumstances are a factor that
may be considered, a fee in excess of the schedule may be reasonable even if no unusual circumstances are present.”
“Gould Two” Gould v. Workers' Compensation Appeals Bd. (Barry), 60 Cal. Comp. Cas. (MB) 1109 (Cal. App. 2d Dist. 1995)
“The Board noted that payment in excess of the fee schedule is discretionary with the Board and not mandatory [citing Gould v. Workers' Comp.
Appeals Bd. (1992) 4 Cal. App. 4th 1059, 6 Cal. Rptr. 2d 228, 57 Cal. Comp. Cases 157]. Since the Gould case was decided prior to the 1994
revision of the medical fee schedule and because the fee schedule had not been revised biennially as required by statute, the introduction of
evidence regarding the medical provider's training and qualifications may be considered in the determination of whether a fee in excess of the
schedule is reasonable. Under the circumstances of that case, it was appropriate to look to factors outside the fee schedule”
Durable Medical Equipment, Prosthetics, Orthotics, and Supplies When billing for Out-Patient Surgery-
July 28, 2009
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.
Ocean View School Dist. v. Workers' Comp. Appeals Bd., 72 Cal. Comp. Cas. (MB) 1683 (Cal. App. 2d Dist. 2007
A provider of Durable Medical Equipment, Prosthetics, Orthotics, and Supplies who bills for the equipment can file a lien and get paid regardless of
claim that it should be included in "Outpatient Billing".
"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."
July 28, 2009
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.
Ocean View School Dist. v. Workers' Comp. Appeals Bd., 72 Cal. Comp. Cas. (MB) 1683 (Cal. App. 2d Dist. 2007
A provider of Durable Medical Equipment, Prosthetics, Orthotics, and Supplies who bills for the equipment can file a lien and get paid regardless of
claim that it should be included in "Outpatient Billing".
"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."