Dismissal for Lack of Prosecution - Treatment Liens (Califor

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Dismissal for Lack of Prosecution - Treatment Liens (Califor

Postby LienExaminer on Thu Aug 20, 2009 10:36 am

Situation is as follows:
Injured worker cuts his hand/finger. Claim is accepted, treatment is provided, modified work is provided, no time lost, employee is determined P & S and released back to full duties. Medical reporting from clinic indicates nothing more than a laceration, the injured worker never reports any further complaints.
Date of injury 05/04/06, discharged 05/15/06.
Then on 09/18/06 applicant retains an attorney and adds left hand, wrist, shoulder, both elbows and forearms. Applicant began treating with workers compensation doctor/clinic I’ll call ABC Medical Group and not back at the clinic and procured extensive treatment which IC objected to. IC offered an AME and A/A did not respond. We then requested a SPQME and scheduled a deposition of the applicant. The applicant failed to appear at the deposition and his attorney lost contact with him. IC filed for a Petition for Dismissal for lack of prosecution which was granted on 01/28/08. Now the ABC Medical Group has filed a DOR and we are scheduled for a conference. The have a balance of $12,500. There was a small EDD lien that resolved for nuisance value (15%). The initial demand from ABC Medical Group was actually more than fee schedule. They have been provided with the Dismissal as well as our denial letter. I have made a nuisance value offer ($800) which has been rejected. The collector for the lien claimant attempted the argument that the nerve conduction study could be considered med-legal in spite of the fact that this is an 2006 date of injury and that the nerve conduction study was ordered by the treating doctor.

My arguments: The charges can not be called med-legal as this would be in violation of 4062. Parts of the billing can not be called med-legal while other parts called treatment.

For treatment – as the addition of these body parts were denied due to lack of medical evidence and late reporting then it would be the burden of the lien claimant to prove injury AOE/COE.

I like to know the thoughts of others on this issue. Or case law?
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Re: Dismissal for Lack of Prosecution - Treatment Liens (Califor

Postby jonbrissman on Thu Aug 20, 2009 4:07 pm

Briefly, your argument against re-characterizing the nerve studies as medical-legal services is a winner. Just apply the test: Was the service requested by a party for the purpose of proving or disproving a contested claim or disputed medical fact? Or were the tests performed to obtain a diagnosis and/or devise a plan of treatment? The answers to those questions appear obvious.

You should identify and separate the treatment charges for the accepted hand/finger injury and any uncontested sequalae, then review and pay those fees. That should be the extent of your liability. For all the contested body parts, your thoughts are correct -- it will be the burden of the lien claimant to prove injury and to prove that the treatment was medically necessary. Without the applicant to testify, the burden is near to impossible. If you want to litigate, you will likely obtain a lien-claimant-take-nothing order. However, a reasonable lien claimant will recognize the difficulty and should accept a meager settlement offer if you would rather avoid the costs and uncertainty of litigation.

At the risk of confusing the situation: Is there a L.C. Section 5402(c) issue? If a new claim was filed in September, 2006 and defendant did not accept or deny it for a period of time, it is liable for up to $10,000 in treatment provided in the interim regardless of any defenses that could be raised to an accepted or denied claim (except employment or coverage).

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Re: Dismissal for Lack of Prosecution - Treatment Liens (Califor

Postby schmit law offices on Fri Sep 04, 2009 8:24 am

In my never too humble opinion, the lien claimant is SOL, period. The entire concept of a lien (as described both in the Labor Code and at enormous length in civil law) is that a lien depends on the claim of the applicant, and if that claim was dismissed, then the lien claimant has nothing to "lien" against.

Frankly, in years of civil litigation a question like this would never arise: all parties would immediately understand that the lien claimant has no rights to proceed where there has been a dismissal of the case in chief. But then, this is workers' compensation, and real law may not be applied, resulting in some exposure to the IC.

So my recommendation to the IC would be to attempt to negotiate for either a complete dismissal of the lien, or for a very low value; or be prepared to take it up on appeal.

Richard Berryhill
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Re: Dismissal for Lack of Prosecution - Treatment Liens (Califor

Postby stewshe on Fri Sep 04, 2009 11:46 am

schmidt law offices (Richard Berryhill),

I checked my Work Comp Index, 7th Ed., under "Dismissal, Petition to for Lack of Prosecution," page 251, and found 6 paragraphs and sub-paragraphs. The last one had the following entry:

• Reinstatement of claim under L.C. §5803 possible after dismissal: San Diego Unified
....(HAYSLETT) 24 CWCR 318, 61 CCC 1421

As usual I've omitted the "vs. WCAB," etc.

I looked up the case on Lexis. The following is from their headnote, but anyone interested in the topic should of course see the case itself. It explains why the defendant might be willing to offer more than a nominal settlement, especially if the lien claimant could convince the EE to request it be reopened? (Some skip-trace places only charge if successful, and it might result in a recovery?):

HEADNOTE: Dismissal--Lack of Prosecution--Reinstatement of Claim--WCAB's order reinstating applicant's disability claim was authorized by Labor Code § 5803[Deering's], even though WCAB had previously dismissed claim for lack of prosecution, when WCAB found letter from pro per applicant was a timely petition to reopen dismissal order and good cause to reopen existed because letter expressed applicant's intent to continue prosecuting claim. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 26.01[3].]
James T. Stewart (stewshe@comcast.net)
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Re: Dismissal for Lack of Prosecution - Treatment Liens (Califor

Postby jonbrissman on Fri Sep 04, 2009 2:32 pm

Mr. Berryhill: You have "the entire concept of a lien" wrong. Comparing a lien in a civil-litigation case to a workers' compensation lien is like comparing apples to motorcycles.

Many WC liens do not depend on the claim of the applicant and many WC liens are valid and compensable even after applicant's claim was dismissed. This recitation is not intended to be complete, but consider these examples:

1. A medical-legal lien where applicant's case is later dismissed for lack of prosecution;
2. A treatment lien for an accepted claim that applicant later abandoned;
3. A treatment lien for services performed before the claim was accepted or denied, regardless of what happens later;
4. A lien for emergency medical treatment where applicant chose not to file an application;
5. A treatment lien where applicant dies prior to resolution or litigation of the case-in-chief; and
6. Even when an applicant's case settles with a Thomas finding, lien claimants have the right to litigate their charges.

In short, I disagree with everything you stated.

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