Medical Treatment Lien (California)

The filing and enforcement of liens (different states refer to these with different terms) to secure payment for services or goods against a workers' compensation award is complex and filled with special rules - this category is for questions and discussion of this special area of work comp law.

Medical Treatment Lien (California)

Postby speropotus@yahoo.com on Mon Apr 06, 2009 5:35 pm

I am preparing a case for a lien claimant, and I am trying to get a feeling for what problems may arise.

Applicant sustained an industrial injury and the defendants stipulated the claim indicating that there is a need for medical treatment in the future. My client, the primary treating physician, was not paid for services provided to the injured worker.

The PTP generated the standard progress reports based on regular evaluation of the applicant. They billed for those services at the official medical fee schedule. At no time did the defendants conduct utilization review.

At a status conference on the lien claim, the Judge indicated that he wanted the parties to have the AME address the issue of whether treatment was reasonable. I objected to this instruction by the Judge. Nevertheless, the matter was taken off calendar. My client is not a party to the AME, and I believe that the opportunity to solicit an opinion from the AME as to the reasonableness of treatment is too far gone.

I would appreciate any observations and/or input from those of you who deal in such issues on a regular basis.
speropotus@yahoo.com
 
Posts: 82
Joined: Mon Mar 02, 2009 5:47 pm

Re: Medical Treatment Lien (California)

Postby jonbrissman on Mon Apr 06, 2009 8:33 pm

There is a forum on Liens where this posting would have been more appropriate. Nonetheless, check out Department of Corporations/State of California vs. W.C.A.B., Thelma Williams-Baker, Michael D. Roback, M.D. and Mary Elizabeth Halouzka, D.C., 67 CCC 509 (2002). A writ-denied case, it says that when lien claimants did not agree to an AME, the AME's opinions were not binding on lien claimants. As an attorney who represents lien claimants, I wholly concur with the holding.

Regardless, defendants often proceed with obtaining supplemental reporting from the AME, many times without obtaining the agreement of any other party. If there is no jointly-signed request for the supplemental report, you can argue that the physician is no longer acting as an AME but is acting as a defense doctor. Make certain that the AME documents that he reviewed each of the PTP's reports. Move to strike any comments by the AME on the reasonableness of charges, because the AME is no expert in OMFS application (his expertise is medical necessity). Watch for specialty conflicts -- an orthopedic AME should not be commenting on treatment outside the filed of orthopedics, for instance.

It must be frustrating to PTPs who have treated a patient over many visits and a long period of time to see an AME issue a report after one visit wherein the AME second-guesses something (or everything) the PTP did. It is intuitive that the PTP knows the patient's condition better than a single-visit evaluator. It seems to me that an AME is a useful vehicle to settle a case, but the AME's comments on past and future treatment must contain an element of speculation and are of questionable reliability.

JCB
User avatar
jonbrissman
 
Posts: 391
Joined: Mon Mar 02, 2009 5:43 pm

Re: Medical Treatment Lien (California)

Postby steve appell on Tue Apr 07, 2009 8:54 am

"My client is not a party to the AME, and I believe that the opportunity to solicit an opinion from the AME as to the reasonableness of treatment is too far gone."

The ALJ has authority under Tyler v. WCAB (1997) 56 Cal.App.4th 389 to further develope the record. Consequently, you are indeed a party to the AME in your case who is now acting in the capacity of an IME. Unless the report is not considered substantial evidence by the ALJ, you will be stuck with whatever it says nonwithstanding an IME depo.

Good Luck!
Steve

appellandassociates.com
6311 Van Nuys Bl #480
Van Nuys, Ca 91401
wcexaminer@aol.com


Check out 'WORK COMP MATTERS" Free PODCAST below
https://www.workcompcentral.com/educati ... ype=online
User avatar
steve appell
 
Posts: 461
Joined: Mon Mar 02, 2009 12:02 pm

Re: Medical Treatment Lien (California)

Postby rider001 on Tue Apr 07, 2009 9:04 am

If the report isnt to your liking request a depo on the IC $$$$.
rider001
 
Posts: 151
Joined: Tue Mar 10, 2009 10:20 am

Re: Medical Treatment Lien (California)

Postby jonbrissman on Tue Apr 07, 2009 12:11 pm

I have not seen a WCJ order development of the record in order to resolve a lien issue. The Tyler case, 62 CCC 924 (1997), involved development of the record on a psyche AOE/COE issue. IMHO, it would be stretching the holding in the case to extend it to lien disputes.

My experience indicates that WCJs adjudicate lien disputes based on burden-of-proof factors. If the lien claimant does not make a prima facie case, it loses -- there is no need to develop the record. If a prima facie case is established and defendant does not rebut it, defendant loses -- and again, there is no need to develop the record.

If the matter gets to a lien trial and defendant cannot rebut the provider's prima facie case because defendant did not procure supplemental medical reporting commenting on the nature and scope of treatment, defendant should be ordered to pay the lien. Why, in such a scenario, should a WCJ give defendant another chance to meet its burden of proof?

JCB
User avatar
jonbrissman
 
Posts: 391
Joined: Mon Mar 02, 2009 5:43 pm

Re: Medical Treatment Lien (California)

Postby speropotus@yahoo.com on Wed Apr 08, 2009 8:34 pm

I have been racking my brain trying to remember the name of a case that came out in Summer/Fall 2008 that addressed medical treatment lien issues. I don't think that it was Sandhagen, but I am not sure any longer.
It addressed the defendants ability to solicit an opinion from an AME/QME if they missed the deadline for UR. In my client's case, there was never any UR and in my opinion, going back to the AME between applicant and defense sets my client up.
Does this fact pattern strike anyone's chords?
speropotus@yahoo.com
 
Posts: 82
Joined: Mon Mar 02, 2009 5:47 pm

Re: Medical Treatment Lien (California)

Postby kpusavat@bagbylaw.net on Thu Apr 09, 2009 11:32 am

Re: Department of Corporations/State of California vs. W.C.A.B., Thelma Williams-Baker, Michael D. Roback, M.D. and Mary Elizabeth Halouzka, D.C., 67 CCC 509 (2002).

<<A writ-denied case, it says that when lien claimants did not agree to an AME, the AME's opinions were not binding on lien claimants. As an attorney who represents lien claimants, I wholly concur with the holding.>>

And as a defense attorney, I strongly disagree with the holding. The rights of lien claimants in workers' compensation are entirely derivative of the rights of injured workers, and should never exceed them. An applicant who has agreed to utilize an AME is bound by the AME's determinations regarding the need for treatment; why should a lien claimant have rights beyond the applicant's? Labor Code 4067. When a lien claimant agrees to provide service on a lien basis, it IS an agreement to be bound by the same rules that bind the applicant, including the determinations of the AME that the applicant has selected.

<<Regardless, defendants often proceed with obtaining supplemental reporting from the AME, many times without obtaining the agreement of any other party. If there is no jointly-signed request for the supplemental report, you can argue that the physician is no longer acting as an AME but is acting as a defense doctor.>>

Again, I disagree. Although in practice we generally use joint letters here in Southern California, the code actually allows for the use of advocacy letters. See LC 4062.3. All that is required is to notify adverse parties 20 days in advance.

<<Make certain that the AME documents that he reviewed each of the PTP's reports. Move to strike any comments by the AME on the reasonableness of charges, because the AME is no expert in OMFS application (his expertise is medical necessity). Watch for specialty conflicts -- an orthopedic AME should not be commenting on treatment outside the filed of orthopedics, for instance.>>

Good advice!

<<It must be frustrating to PTPs who have treated a patient over many visits and a long period of time to see an AME issue a report after one visit wherein the AME second-guesses something (or everything) the PTP did.>>

Welcome to workers' comp. Those are the rules. In some situations the PTP is like a guy making leisure suits. One minute everybody's wearing them, and he can't work fast enough to keep up with demand. Then overnight, the market changes, and now nobody wants all those suits on the racks. That's the reality - people are tired of seeing gross overtreatment, including AMEs, and they decide the market.

<<It is intuitive that the PTP knows the patient's condition better than a single-visit evaluator.>>

But it's also intuitive that the PTP has a financial incentive to treat the applicant forever, if unchecked.

<<It seems to me that an AME is a useful vehicle to settle a case, but the AME's comments on past and future treatment must contain an element of speculation and are of questionable reliability>>

Somebody has to make that determination, and who else could it be? We tried letting the PTP's control the case and medical costs exploded out of control, resulting in many of the recent draconian changes in the law. You want to lay blame for the difficulty in collecting treatment liens? Blame it on all the greedy providers who couldn't be trusted to keep things reasonable.
kpusavat@bagbylaw.net
 
Posts: 15
Joined: Thu Apr 09, 2009 10:32 am

Re: Medical Treatment Lien (California)

Postby jonbrissman on Thu Apr 09, 2009 6:36 pm

Keith, it appears as if you think all treating physicians are greedy, self-interested practitioners that require defense supervision to prevent them from raping the saintly insurance carriers. Perhaps a few providers are excessive, just as perhaps there are a few incompetent adjusters and defense attorneys. But the vast majority of treating physicians are simply providing their patients with the best medical care that they can provide -- greed and avarice have nothing to do with their practices. Many of the treating physicians that I represent are highly regarded as AMEs, but that doesn't stop an occasional ignorant attorney from attacking the course of treatment they prescribed. Funny -- after an expedited hearing and substantial costs to defendant, the prescribed course of treatment is nearly always ordered. I suspect defendants prevail at less than 10% of expedited hearings on proposed treatment issues.

Maybe you noticed the editorial in the L.A. Times yesterday. Pure premium rates are recommended to go up about 24%, and the increase in expense is due to cost-containment measures adopted by carriers. More is being spent on U.R. and medical-legal costs than is being spent to cure or relieve injured workers. It's that paranoid "all doctors are greedy" mentality that is driving the cost increases and requiring businesses to pay higher premiums.

A wise attorney is one who can figure out which battles to fight and which ones to concede.

JCB
User avatar
jonbrissman
 
Posts: 391
Joined: Mon Mar 02, 2009 5:43 pm

Re: Medical Treatment Lien (California)

Postby jpod on Fri Apr 10, 2009 7:44 am

Hi Jon,

I agree with your position that most doctors are as you state. It is the minority that gives the whole a bad name and reputation as an industry. It is sad the medical community is so fragmented b/c that seems to be the reason it is unable to police itself.

While I undertsand you only reported on an editorial you read, and that it was not your own opinion, I think that editorial is way off base.

I can tell you annecdotally that our annual UR costs are less than .05 of total medical paid. I do not have the medical legal component but I am certain it is less since 60-80 percent of claims incur no medical legal cost whatsoever, whereas UR is done more frequently. I can't imagine our experince is vastly different than other companies, certainly not several orders of magnitude greater than our experience. It is nonsensical to claim UR costs are greater than medical expenditures.
jpod
 
Posts: 771
Joined: Fri Mar 06, 2009 1:21 pm

Re: Medical Treatment Lien (California)

Postby kpusavat@bagbylaw.net on Fri Apr 10, 2009 9:40 am

<<it appears as if you think all treating physicians are greedy, self-interested practitioners that require defense supervision>>

Heh, it does sound a bit like that. But no, I wouldn't say "all." Just a lot of the ones that get litigated and land on my desk. And I'm happy with the objective supervision of an AME, which appears objectionable to you.

<<Perhaps a few providers are excessive>>

"Perhaps?"

<<But the vast majority of treating physicians are simply providing their patients with the best medical care that they can provide>>

And thus, the vast majority of bills don't get litigated. But for the ones that do, the AME's opinion is the obvious choice as the best evidence on which a judge can realy to determine medical necessity.

<<Funny -- after an expedited hearing and substantial costs to defendant, the prescribed course of treatment is nearly always ordered. I suspect defendants prevail at less than 10% of expedited hearings on proposed treatment issues.>>

That may have been true, historically, in the days of treating doctor's presumption and more recently due to difficulties adapting to the many changes of SB 899. But that's not the issue, it was whether the AME's opinion should control determinations of medical necessity. I suspect that lien claimants prevail at less than 10% of trials when an AME has determined that their treatment was unnecessary.

<<Maybe you noticed the editorial in the L.A. Times yesterday.>>

Sorry, I only read that rag for the Sports and Calendar sections.

<<More is being spent on U.R. and medical-legal costs than is being spent to cure or relieve injured workers.>>

Wrong. And if the article says so, it's an indictment of the writer's credibility, not the insurance industry. Looking at my CWCI Bulletin dated July 18, 2008, I see that 1.7% of WC insurer payments were made for medical cost containment (UR), and 1.3% for medical-legal evals (unspecified as to applicant or defense). The combination of hospitals, pharmacy, physicians, surgery centers, and other medical totaled 30.6% of payments.

<<It's that paranoid "all doctors are greedy" mentality that is driving the cost increases and requiring businesses to pay higher premiums.>>

We see it as the "$2,000 band-aid" mentality that's so harmful. Because in workers' comp, to get a determination of the cost and necessity of a band-aid will actually cost the carrier $2,000.00. The solution isn't to pay $1,000 and think we've saved money, it's to get providers to charge $2.00 instead of $2,000.

<<A wise attorney is one who can figure out which battles to fight and which ones to concede.>>

That's why you and I never go to trial, Jon, because we're both so wise.
kpusavat@bagbylaw.net
 
Posts: 15
Joined: Thu Apr 09, 2009 10:32 am

Next

Return to Liens

Who is online

Users browsing this forum: No registered users and 1 guest

cron