Posting and Comments for Work Comp Issues

Lien Filing for Future Medical Treatment
Richard J Boggan J.D.
Updated Recent Panel Decision: January 31, 2012
“In summary, the Appeals Board’s allowance of AMG’s medical treatment expenses is a matter of enforcing the Stipulated Award for future medical treatment, which defendant agreed to provide beginning in 1997. Under the circumstances of this case, we conclude that the Board’s power to enforce the Stipulated Award is not subject to the constraints of Labor Code section 4903.5(a). Therefore, we will affirm our decision of April 11, 2011.” Barbara Ann Hingtgen, Applicant v. County of San Bernardino, PSI, Defendant Opinion Filed November 9, 2011W.C.A.B. No. ADJ446534 (SBR 0216831) (Panel Decision)

When an injured worker (Applicant) is awarded future medical care and the medical provider provides treatment for that future medical care after a Stipulation for Award with future medical or any other settlement with future medical, the question is asked does that provider have a statutory timeline to file a lien? The answer is no, outside the argument of laches, (unreasonable amount of time to the defendants’ determent)
According to Cal Lab Code § 5803 “The appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of this division, and the decisions and orders of the rehabilitation unit established under Section 139.5. At any time, upon notice and after an opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefore.”
County of Los Angeles v. Workers’ Compensation Appeals Bd.,(2002) 67 Cal. Comp. Cas. (MB) 1349; 1353

“Moreover, the court believes that where medical treatment under a Stipulated Award reflects an ”is” needed basis, this is synonymous with active past, present and future on-going medical treatment. As a consequence, the WCAB would have continuing jurisdiction to enforce an award as apposed [sic] to rescinding, altering, or “amending an award.”

Town of Hillsborough v. Workers’ Compensation Appeals Bd., (2003) 68 Cal. Comp. Cas. 304; 307:

“Furthermore, as this was a general award for medical treatment, the Appeals Board retains jurisdiction beyond the five-year statute to enforce its continuing awards.”

In theory the medical provider would not have to file a lien for treatment provided for future medical award as the Board has continuing jurisdiction to enforce jurisdiction over future medical including enforcing payment. However in practice a clerk at the WCAB might not set the matter if the provider files a Declaration (DOR) and the medical provider has no lien filed.

If the DRG average length of stay is greatly exceeded is the provider entitled to paid for those additional days.

The per diem rate is determined by dividing the maximum reimbursement as determined under Title 8, California Code of Regulations §9789.22(a) by the average length of stay for that specific DRG.

Simmons v. California, (en banc) (2005)

Thus, by section 4610(a)’s express terms, utilization review is directed solely at determining the ”medical necessity” of treatment recommendations. Therefore, section 4610 does not authorize a utilization review physician to determine whether the employee’s industrial injury caused or contributed to a need for treatment.

The OMFS is not applicable in a case such as this when the compensability of a claimed injury is disputed and  the injury was  later found to be compensable. The Lien Claimant is entitled  to payment of its reasonable, usual and customary charges (not exceeding what is charged non-industrial patients CNA Ins. Cos. v. Workers’ Compensation Appeals Bd. (Valdez)

Robert Klittich, Applicant v. Green Thumb International, State Compensation Insurance Fund, Defendants, 2008 Cal. Wrk. Comp. P.D. LEXIS 866, Opinion Filed August 11, 2008

Dr. Bresler appeared and testified on his own behalf. His services were found to involve extraordinary circumstances justifying fees above the Official Medical Fee Schedule as follows:

Daily WC Issue March 30, 2010:
CIGA on Assigned Claims
When a medical provider assigns its rights and title to a collection account, is CIGA responsible for payment of that ;assigned claim?

Daily WC Issues March 29, 2010:
Outpatient Fee Schedule

9789.38.Appendix X.42 C.F.R. ; 419.44(a) Multiple surgical procedures. When more than one surgical procedure for which payment is made under the hospital outpatient prospective payment system is performed during a single surgical encounter.

Maria Isabel Ramirez, Applicant v. Quiznos, State Farm 21567 Bakersfield, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 466, Opinion Filed September 8, 2009

We agree with the WCJ that for an injured worker who does not speak English, the use of an interpreter ;is reasonably required to cure or relieve the injured worker from the effects of his or her injury, ( Labor Code, ; 4600, subd. (a)) and that requiring an injured worker to be treated only by a physician proficient in the injured worker’s mother tongue would deprive [*6]  the injured worker of the right to "be treated by a physician of his or her own choice…." ( Labor Code, 4600, subd. (c).) We also note that the provisions of Administrative Rule 9795.1 et seq. appear to relate only to interpreting services at legal and medical-legal appointments and hearings, and not to medical treatment appointments, such as the ones at issue here. ( Cal. Code Regs., tit. 8, ; 9795.3.) Accordingly, the fact that the interpreters sent by Ditto were not ;certified" or ;provisionally certified" does not create a defense to liability.

24 visit cap of Labor Code; 4604.5(d)(1).

The WCJ stated:
“In denying the chiropractic treatment, it appears that the defendant may have been under the mistaken presumption that the 24 visit cap of Labor Code ; 4604.5(d)(1). The limitation on chiropractic visits is not applicable to this 2001 case, as the provisions of Labor Code 4604.5(d)(1) apply only to injuries on or after January 1, 2004. The undersigned WCJ arrives at that conclusion because that was the main argument raised against Haynes Chiropractic by the defendant at trial.”

Daily WC Issues March 24, 2010:
AME Report

Rather, he merely stated that it was his
“impression” that chiropractic treatment was “not
require[d]” and was “contraindicated.” Dr.
Strassberg did not provide any facts or reasoning to
support and explain his “impression.” Moreover, the
WCJ did not interpret the AME’s mere “impressions”
to constitute statements of reasonable medical
probability.
—— unclear about whether Dr. Strassberg was
aware that chiropractic treatment may be
reasonable even if it did not cure Applicant’s
condition, but merely relieves the condition.