 | 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, which is not foreseeable, it appears
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 adjusters take vacations making
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 the end of collections it is the
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 work (i.e., harassment, stress,
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 and denial and or request for authorization are
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
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 what recourse do they have. With
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 determined why the applicant
| 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 recognizes the fact that a provider in
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 objected to. The point being
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, together with lapse of time and other
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 determined why the applicant
| 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 recognizes the fact that a provider in
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 to answer that question, one
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 board or a workers' compensation
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 and rehabilitation services
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 provides that an application can
(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) that results in a neglect or refusal
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) that results in a neglect or refusal
| 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 Schedule adopted pursuant to Labor Code
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."
Failure to Perform Utilization Review Makes Medical Necessity Issues Moot
July 29, 2009
State Comp. Ins. Fund v. Workers' Comp. Appeals Bd., S149257, SUPREME COURT OF CALIFORNIA, July 3, 2008, Filed
Download in Work Doc /// Download in PDF
“The insurer referred the matter for utilization review but did not communicate its decision within the 14-day statutory deadline set forth in § 4610, subd. (g)(1). A workers'
compensation judge found that the insurer's failure to comply with the statutory deadlines precluded it from relying on the utilization review process or on its doctor's report to deny
the requested treatment”
July 29, 2009
State Comp. Ins. Fund v. Workers' Comp. Appeals Bd., S149257, SUPREME COURT OF CALIFORNIA, July 3, 2008, Filed
Download in Work Doc /// Download in PDF
“The insurer referred the matter for utilization review but did not communicate its decision within the 14-day statutory deadline set forth in § 4610, subd. (g)(1). A workers'
compensation judge found that the insurer's failure to comply with the statutory deadlines precluded it from relying on the utilization review process or on its doctor's report to deny
the requested treatment”
About UR and causation decisions:
A denial issued directly from the reviewing physician or URO to the primary treating physician on causation grounds alone could be found in violation of 8 CCR § 9792.6(s), §
9792.9(j) and probably § 9792.9(l), as well as the express wording of Simmons, which states the UR reviewing physician does not have the authority to determine causation.
A denial issued directly from the reviewing physician or URO to the primary treating physician on causation grounds alone could be found in violation of 8 CCR § 9792.6(s), §
9792.9(j) and probably § 9792.9(l), as well as the express wording of Simmons, which states the UR reviewing physician does not have the authority to determine causation.
About UR and causation decisions:
A denial issued directly from the reviewing physician or URO to the primary treating physician on causation grounds alone could be found in violation of 8 CCR § 9792.6(s), §
9792.9(j) and probably § 9792.9(l), as well as the express wording of Simmons, which states the UR reviewing physician does not have the authority to determine causation.
A denial issued directly from the reviewing physician or URO to the primary treating physician on causation grounds alone could be found in violation of 8 CCR § 9792.6(s), §
9792.9(j) and probably § 9792.9(l), as well as the express wording of Simmons, which states the UR reviewing physician does not have the authority to determine causation.
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