ADJ1977669 — California WCAB decision

What the panel ordered

Petition for Reconsideration or Removal denied.

Petition for Reconsideration or Removal filed by Lien Claimant David Silver challenging the WCJ's decision on penalties, interest, and reservation of jurisdiction over medical-legal charges.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Other disputed issueDefendant prevailed

The court reserved jurisdiction over medical-legal charges because the issue was not raised or submitted for decision, and neither party was on notice, thus no substantial prejudice or irreparable harm to petitioner.

From the decision · page 6It is odd that in the Petition, Petitioner stated the grounds for removal twice, did not state the proper grounds for reconsideration, and then made no argument regarding the issue that would be subject to a removal analysis. In any event, the Court did not defer the "issue" of medical-legal charges. That issue was not submitted for decision as it had never been raised. Had it been raised, Petitioner would have been required to prove all of the elements of the medical-legal portion of its lien such as whether there was a contested claim at the time services were provided, and whether the services were reasonably, actually and necessarily incurred, and whether the services were requested by a party. As a matter of due process, the Court has reserved jurisdiction over those charges since neither party was on notice that medical-legal charges would be at issue. Thus, not only is Petitioner not substantially prejudiced or irreparably harmed by such reservation of jurisdiction, it is helped or perhaps even saved.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Petitioner did not serve medical reports corresponding to itemized bills on the employer/carrier.

Favours Defendant prevailed

This failure is a prerequisite to liability for penalty and interest under Labor Code section 4603.2(b)(2).

From the decision · page 5In this case, all of Petitioner's charges were for office visits and exams, plus corresponding reports. There were no charges for courses of medical treatment or medications. The facts here could not represent a more textbook case of the types of reports required by section 4603.2(b)(2). Petitioner appears to readily admit that the reports corresponding to each examination were not served on the employer/carrier along with the itemized bills Petitioner argues that prior to 2020 there was no requirement to serve a medical report before Defendant's obligation to pay is triggered. Petitioner is off point. The issue is not whether Defendant has an obligation to pay, but whether there is liability for penalty and interest. It is well established that as a pre-requisite to entitlement to penalty and interest, Defendant must be provided with a properly documented itemization of services along with any required reports2. This requirement has been in place for all versions of Labor Code section 4603.2 during the period of time that Petitioner provided medical treatment services in this case.

The issue of medical-legal charges was not raised or submitted for decision.

Favours Defendant prevailed

The court reserved jurisdiction over these charges to avoid prejudice or irreparable harm to petitioner.

From the decision · page 6It is odd that in the Petition, Petitioner stated the grounds for removal twice, did not state the proper grounds for reconsideration, and then made no argument regarding the issue that would be subject to a removal analysis. In any event, the Court did not defer the "issue" of medical-legal charges. That issue was not submitted for decision as it had never been raised. Had it been raised, Petitioner would have been required to prove all of the elements of the medical-legal portion of its lien such as whether there was a contested claim at the time services were provided, and whether the services were reasonably, actually and necessarily incurred, and whether the services were requested by a party. As a matter of due process, the Court has reserved jurisdiction over those charges since neither party was on notice that medical-legal charges would be at issue. Thus, not only is Petitioner not substantially prejudiced or irreparably harmed by such reservation of jurisdiction, it is helped or perhaps even saved.

ADJ1977669 · July 24, 2023

What the panel ordered

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