In His Infinite Wisdom
William Nathans
Editor
I am sitting here trying to figure out what this article should be about. I could vent about liens. I could complain about doctors and lawyers. However, I think this time I will rail against some of the workers' compensation judges who can't see the forest for the trees.
I am talking about judges who, when all the necessary parties are present, decides that because the zip code on the official address is one number off, takes the matter off calendar because of the improper service.
This incident cost me a 1/2 day of attorney fees, the need to re-file the DOR and another 1/2 day of attorney fees. The lien involved in a case that amounts to $3,000. The majority of the amount in which the lien representative admitted were not valid.
How about the judge who has ordered me to pay for Opana, oxycontin, xanax, floricet, viagra, lotrel, and norco. This costs the employer/insurer $3-4,000 a month. In addition to this, the same judge has ordered a fusion and convalescent care, post surgery. The injury was slip and fall with a prior work comp claim that settled by compromise and release for a surgical back.
My favorite form over substance involves the claim where the claimant passed away, a fact that was not in dispute because the injured worker had returned to Mexico where he unfortunately passed away.
The Judge, in his infinite wisdom, refused to dismiss the claim. He ruled that if the claimant did not show up in one year he would then dismiss the claim. In other words the carrier had to keep the file open for a year with the associated costs. ?????????????????????????
Comments, questions, e-mail me at bill@adjustingworld.com
Raindrops on Roses
Stephen L. Kline, Esq.
Armstrong Law Firm
stephenk@arm-law.com
… and whiskers on kittens.
Bright copper kettles and warm woolen mittens
Brown paper packages tied up with strings
These are a few of my favorite things.”
With apologies to Rodgers and Hammerstein, this month, we’re going to talk about my favorite thing ... lien claimants.
The latest California Compensation Cases (CCC) had three unpublished cases which highlight some of the wonderful things we like about lien claimants.
The first is just a headnote in the CCC, but it puts forth an important principle that is all too often overlooked. .Beverly Hills Center for Arthroscopic & Outpatient Surgery v WCAB, 73 CCC ----, the Second District Court of Appeals denied the lien claimant’s writ after the WCAB disallowed the remainder of the Surgery Center’s lien of $97,127.07, after the third party insurer paid $14,376.43 for those services. There was no evidence to rebut that the latter amount was the reasonable amount of charges for the services. If another carrier or third party pays for medical services that amount is presumptively determined to be reasonable, unless rebutted by contrary evidence. Here the Beverly Hills 670% mark up was not considered reasonable.
Another matter shows that the defense can fail to present evidence also. East Bay MUD v WCAB (Thompson), 73 CCC 150, had the opposite result. Here there were two liens which went to trial. The Bay Surgery Center presented evidence of other billings showing the fee that they usually accept for the same or similar services. The defense presented an expert who regarding the value of services used a method of computation. However, the computations were based on a national database and not one that showed the fees usually accepted by other providers in the same geographical area. Thus, the expert failed to assist the defendants in sustaining their burden under Kunz v Paterson Floor Coverings (WCAB, en banc 2002) 67 CCC 1588. The Bay Surgery Center in an unverified Reconsideration Petition requested penalties, interest and attorneys fees. It was denied.
The other Reconsideration Petition in that case was by the Webster Surgery Center which was granted. They claimed that they had not been given proper notice under what type of licensure they needed to produce under Zenith Insurance v WCAB (Capi), 138 Cal App. 4th 373. The Judge agreed and the matter was remanded back to him for further action. Webster asked for attorney fees under Labor Code §5811 and was denied this request by the Court of Appeals.
In the third case, Escamilla v WCAB, 73 CCC ---, the lien claimant learned the hard way that unreasonable tenaciousness has a price. In the principal case the Applicant and the defense stipulated to 100% permanent disability. In a “lien affidavit attached to the Stipulated Award, the defendant stated that it was informed by one of the Lien Claimant’s employees that no balance was owed, but that negotiations were pending.”
Well, the lien claimant was outraged because of the above quoted statement and filed a Petition for Reconsideration. They claimed it was not true and that there was an outstanding lien of $18,166.54. The WCAB summarily denied their Petition indicating that there was no final order with respect to the lien.
Subsequently, the lien claimant resolved the lien for $13,624.90. About two months later, the lien claimant’s representative still upset about the earlier lien affidavit filed a Declaration of Readiness to Proceed for sanctions and costs based on the lien affidavit language. The matter was set for trial and the Workers Compensation Judge at the trial denied the request for sanctions and imposed on her own motion, sanctions against the lien claimant’s representative in the amount of $2500 for this frivolous action.
The representative filed a Petition for Reconsideration against that Order and the WCAB reviewed the matter. They removed the matter from the Workers Compensation Judge to themselves, imposed a new sanctions against him in the amount of $2500 and gave him 15 days to show cause as to why there should not be a sanction. He responded and guess what, they found the response inadequate. He continued the fight and the Second District Court of Appeals denied his Writ.
Lien Claimant Representatives are held to the same standards as attorneys before the WCAB. Requesting sanctions when they file Declarations of Readiness improperly and on closed cases may be the only way to stop this costly frivolity. Don’t ever forget they have the burden of proof for reasonableness, licenses and validity of the services. It may not be impossible to meet those burdens and when the evidence is produced, it must be rebutted by substantial evidence. We now return you to the stage for the next song.
Thanks again for your attention.
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