9 2017-course example- course 2014-2015 lesson 7 liens

Lessons 7, 8, 9: Liens 18 months
and what to do with files past
time to file liens
www.workcompliens.com
October 20, 2014
October 2014 www.workcompliens.com 1

WCAB
Issues Orders
IMR
Issues Orders
IBR
Issues Orders

WCAB
Issues Orders
Subject to lien
time
requirements and
fees
Not Subject to
lien
requirements
Causation
Contested
Liability
Medical Legal
Appealing an
IMR Decision
Appealing an
IBR Decision
Petition to
Enforce an IBR
decision or IMR
Treatment for
future medical
Untimely UR or
no UR after RFA
by choice
Untimely or no
response to 2nd
bill review
request by
choice

IMR-Medical
Necessity
Issues Orders no lien or
time to file lien
IMR, UR,
Authorization
Process
Start Time
End Time
RFA
Court Order
Resolving denied
case or contested
liability issues
After 12 month or
factual
documented
change
Probably when
retrospective
review conduct as
unlikely change in
factual medical
Enforced by the
DIR
No set time by
events
Only Subject to
WCAB if no UR
response or
untimely –choice
Defective UR not
subject to
WCAB only
IMR

IBR
Issues Orders Start Time
End Time
No subject to
WCAB unless
no response to
2nd bill review
request or
untimely
90 days after
initial review
unless contested
liability issue
2nd bill review
request
90 days after
court order
resolve contested
liability
2nd bill review
request
IBR Request
30 days after
receipt of 2nd
review
Failing to meet
90 2nd review
Failing to meet
30 IBR request
Not appealing
IBR
determination to
WCAB within
30 days
No lien or time
to file lien

Present Law SB 863
4903.5. (a) A lien claim for expenses as
provided in subdivision (b) of Section 4903 shall
not be filed after three years from the date the
services were provided, nor more than 18 months
after the date the services were provided, if the
services were provided on or after July 1, 2013.

Rand Study on Lien 2011
As a symptom, the billions of dollars in dispute
reflect both obligations that should have been paid
but which may eventually have to be compromised
in order to obtain any payment, and claims that
should not be paid but which may eventually have
to be compromised in order to obtain closure.
The volume of liens forces the courts to encourage
settlement, almost to the point of coercion.
The necessity of settlement rewards both unjustified
claims and unjustified refusals.

From DWC
(interpreting existing laws)
On February 17, 2013, the DWC stated that it was in bad faith
for a payor to refuse to compromise and settle if there existed no reasonable grounds not to compromise
and resolve, adding that forcing a party to file a lien and pay a fee was in bad faith when no reasonable
grounds existed for the denial. The DWC went on further to state that the remedies available to a
provider would be an audit complaint form and sanctions, which leave us with the question, can the DWC award
sanctions.
“If a claims administrator has reasonable grounds to contend that nothing is owed, then good faith
negotiation does not necessarily require an offer of compromise. In the absence of a good faith
contention that nothing is owed, however, a refusal to negotiate prior to payment of the filing fee would
not be in good faith.”
Therefore, the question remains is the fact that the time to file liens expired a reasonable ground to deny
good faith compromise? Well if you read the DWC statement it states they cannot force the party to file a
lien.

IMR
(Independent
Medical
Reviewer)
There are Now Three (3) Forums Where One Can Get
Orders for Payment
IBR (Independent
Bill Reviewer)
WCAB (Workers
Compensation
Appeals Board)
File liens Statutory time limits / door closes
Petitions for Medical legal and Costs
Future Medical Treatment
Enforcing existing orders
When reasonable reimbursement only issues
Court order resolving contested liability
Or consent of the parties
Initial Request for Treatment
After 12 months or change in factual
documents conditional
Court order resolving contested liability or
consent of the parties

IMR
(Independent
Medical
Reviewer)
Triggers for Process to Start
IBR (Independent
Bill Reviewer)
WCAB (Workers
Compensation
Appeals Board)
3 years from last date of
service or 18 months if
date of services after July
01, 2013
Initial request
After 12 months
Prior to 12 months if change in
factual documents facts
Court order resolving
contested liability issue
Agreement by the parties
90 days second review 30 days
IBR –
After contested liability issue
resolved 90 days
Agreement by the parties

Issues Always Prevalent in Denied or Contested Liability
Issues
Causation
Medical Necessity
Reasonable Reimbursement

Issues Always Prevalent in Denied or Contested Liability
Issues
Causation
Medical Necessity
Reasonable Reimbursement
Resolved by
Court Order
Triggers
Triggers
No lien or time limit required

Panel Decision on Liens Continued
On March 15, 2013, the WCJ issued the F&O, finding in pertinent part that section
4903.5(a) barred the lien for the dates of service from March 19, 1999 to April 14, 2007
and ordering that the lien was disallowed as to that period.
On March 29, 2013, lien claimant filed its petition for reconsideration. It contends that
its lien was timely filed on April 14, 2010 because the last date that services were
provided was February 17, 18 2011.
Preliminarily, we note that lien claimant continued to provide treatment and to receive
payment over a twelve year period and there is no evidence in the record that lien
claimant ever discontinued treatment of applicant. As a result, it appears that the date of
April 14, 2007 is an arbitrary cutoff based on the defendant's construction of the time
limits in amended section 4903.5(a).

Labor Code § 4903.5, subdivision (a) "A lien claim for expenses as
provided in subdivision (b) of Section 4903 shall not be filed after three
years from the date the services were provided, nor more than 18
months after the date if the services were provided on are after July 1,
2013.
From The Case of CHARLES KINDELBERGER, vs. CITY OF
LOS ANGELES, permissibly self- AND DECISION Case Nos. May
24, 2013;ADJ586942 (VNO 0384663) ADJ687483 (VNO 0384664)
OPINION AND ORDER GRANTING PETITION FOR
RECONSIDERATION
Lien claimant contends in pertinent part that the WCJ erred because it
timely filed its lien before the last date that services were provided so
that its lien was not barred.

As of January 1, 2013, section 4903.5, subdivision (a) states that:
"A lien claim for expenses as provided in subdivision (b) of Section
4903 shall not be filed after three years from the date the services were
provided, nor more than 18 months after the date if the services were
provided on are after July 1, 2013. (Bold, italics added.)"
In the case of ongoing treatment, "the date the services were provided"
is understood to be the last date that treatment was provided. Defendant
contends that the changes in the time limits to file a lien under amended
section 4903.5(a) also altered the construction of that phrase, so that it
now means that the operative date is the individual date of service. But
no changes were made to that phrase when the statute was amended.

Cal Lab Code § 5803
Cal Lab Code § 5803 which states: “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

Future Medical
Barbara Ann Hingtgen, Applicant v. County of San Bernardino,
PSI, Defendant (2012) W.C.A.B. No. ADJ446534 (SBR 0216831)—
writ denied case
“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 (2012) W.C.A.B. No. ADJ446534 (SBR 0216831)—writ denied
case
In this case, there is an "agreement" within the meaning of section 4909, namely the
Stipulated Award of January 22, 1997. Therein defendant agreed to furnish applicant
with future medical treatment. Over the years that followed, AMG provided some of
that treatment. The treatment provided by AMG is compensation that defendant agreed
to pay subject to reasonableness and necessity, as opposed to a debt incurred by AMG
and secured by compensation, i.e., a lien for which defendant might be found liable by
the WCAB. By virtue of the Stipulated Award, the treatment provided by AMG was not
just secured by compensation, it was compensation in and of itself. Seen this way, the
Board's April 11, 2011 decision rejecting the lien Statute of Limitation and allowing
AMG's "lien" to the extent reasonable and necessary, is a decision which enforces the
Stipulated Award of January 22, 1997. The Board has the power to make supplemental
orders or awards necessary to enforce its previous decisions, including a previous
award of medical treatment, and these enforcing orders are not rescissions, alterations,
or amendments of a prior award subject to the five-year time restriction of Labor Code
section 5804.

From Report of The California Commission on Health and
Safety
and Workers’ Compensation
Stale claims are not necessarily barred by section 4903.5
because a lien is implied any time the claims administrator has
written notice of facts sufficient to constitute a lien. Section
4904, which otherwise deals only with Employment
Development Department liens, begins with the sentence, “If
notice is given in writing to the insurer, or to the employer if
uninsured, setting forth the nature and extent of any claim that
is allowable as a lien, the claim is a lien against any amount
thereafter payable as compensation, subject to the
determination of the amount and approval of the lien by the
appeals board.”

Liens
(Later Amended ) Rule 10770(b)(5) provides that if
written notice of a lien claim is given to a defendant,
this will not constitute the “filing” of a lien with the
WCAB.
Sept 2013 effective Oct 2013:
§10770 (c) (10) Where a lien has been served on a party,
that party shall have no obligation to file that lien with
the Workers' Compensation Appeals Board.

Prior 2013
Prior to 2013:
Under Cal Lab Code § 4903.5 (b) upon six
months learning of industrial claim – 6 month
grace period into 2013

Prior to 2013 This changed in 2013 they stated
12 months and took out providers
Prior to 2013:
Cal Lab Code § 4903.5 (b) which states:
“Notwithstanding subdivision (a), any health care
provider, health care service plan, group disability
insurer, employee benefit plan, or other entity
providing medical benefits on a nonindustrial basis,
may file a lien claim for expenses as provided in
subdivision (b) of Section 4903 within six months
after the person or entity first has knowledge that an
industrial injury is being claimed.”

From Panel Decision
Sanctions: “ litigating a lien to
the point of setting it for trial
without submitting any evidence
in support thereof…”

2014 Liens / WCAB
Panel Decision:
As pointed out on page two of the WCJ's Report,
it appears that lien claimant labors under the
mistaken impression that the WCJ and the
WCAB are here to help make the lien claimant's
case.”

Panel Decision
Panel:
There is a difference between trying to get a
better settlement and having a legal dispute that
requires the WCAB assistance. Fewer files in
2014 should reach this point as the party who is
wrong will suffer sanctions and costs even the
defense

Moreover, the interpretation urged by defendant would create a separate statute of
limitations for each date of treatment rather than for the entire lien. As a result, it is
foreseeable that even while continuing to treat an applicant, a careful lien claimant
would file a lien for each date of treatment rather than simply filing a lien at the
conclusion of the treatment, thereby flooding defendants and the Workers'
Compensation Appeals Board with multiple extraneous liens.
Accordingly, we grant reconsideration, rescind the F&A and return the case to the WCJ
for further proceedings as appropriate and a new decision consistent with this opinion,
from which any aggrieved party may timely seek reconsideration.
For the foregoing reasons,
IT IS ORDERED that the Petition for Reconsideration by lien claimant Advanced
Orthopedics of the Findings of Fact and Orders issued on March 15, 2013 by the
workers' compensation
administrative law judge is GRANTED.
KINDELBERGER, Charles

Summary
1. Services Provided for Future Medical
treatment.
2. Medical legal services prior to 2013
3. Medical legal services after 2013
4. Services were the case settled prior to 2013
and the defense was obligated to file a lien
5. Knowledge of industrial injury or lack of
changed in 2013

Pleading
“We deny lien claimant's petition for reconsideration for the additional reason
that the petition is unintelligible and violates the requirements of WCAB Rule
10842(a) and (b). (Cal. Code Regs., tit. 8, 17 10842.) The rule requires clear
and specific reference to evidence which supports the petitioner's contentions.
Lien claimant fails to refer to any evidence in alleging on page five of its
petition that "applicant was referred by the secondary treating physician on the
advice of the treating physician pursuant to and in compliance with applicable
ACOEM / AMA Guidelines to assess symptomology due to pain and to
determine if any counterbalancing factors such as maladjustment [sic]." Lien
claimant repeats this allegation on page six, again unsupported by specific
reference to any evidence. As pointed out on page two of the WCJ's Report, it
appears that lien claimant labors under the mistaken impression that the WCJ
and the WCAB are here to help make the lien claimant's case.”

Prior to 2013
This means that if a medical provider has provided
medical treatment and he or she is unaware that it is
an industrial injury (i.e., auto accident, private pay
paid, or no payments, employer no work comp
insurance) which is a factual finding as to
knowledge then the medical provider has six months
from learning it is an industrial injury and the time
requirement of Cal Lab Code § 4903.5 (a) would
not apply if the time limit of Cal Lab Code §
4903.5 (a) had already expired

4903.1. (a)
(2) If the appeals board issues an award finding that an injury or
illness arises out of and in the course of employment, and makes an
award for reimbursement for self-procured medical costs, the appeals
board shall allow a lien, to the extent of benefits paid or services
provided, for the effects of the industrial injury or illness, by a
health care provider, a health care service plan, a group disability
policy or a self-insured employee welfare benefit plan, subject to
the provisions of subdivision (b). For purposes of this paragraph,
benefits paid or services provided by a self-insured employee welfare
benefit plan shall be determined notwithstanding the official
medical fee schedule adopted pursuant to Section 5307.1.

Lesson 7: Liens 18 months and
what to do with files past time to
file liens
www.workcompliens.com
October 20, 2014
October 2014 www.workcompliens.com 50

9 2017-course example- course 2014-2015 lesson 7 liens

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9 2017-course example- course 2014-2015 lesson 7 liens