What the panel treated as outcome-determinative, and which side it favoured.
Lien claimant Dr. David Silver failed to provide evidence establishing he was the primary treating physician.
Favours Defendant prevailed
Without such evidence, he could not bill or be reimbursed as the primary treating physician, leading to denial of additional reimbursement.
From the decision · page 9E. There was no evidence submitted to establish that Dr. Silver was the
primary treatingphysician:
Petitioner contends that "[t]he WCJ should not have relied on the
assumption by the adjuster that Dr. Silver was a secondary treating physician since
this is not a fact supported by any evidence in the record" (Petition, page 11, lines
23 to 25). This Court relied upon no such assumptions. This court relied upon the
evidence presented by the parties and, rather, the lack of evidence presented by lien
claimant.
Lien claimant did not offer any evidence establishing that Dr. Silver was
ever designated as the primary treating physician. In all of the medical reporting
generated by Dr. Silver and supplied to this Court, Dr. Silver never referred to
himself as the primary treating physician (Lien Claimant'sExhibits 4 through 23).
In all of the medical reporting generated by Dr. Silver and supplied to this Court,
Dr. Silver continually refers to the Applicant as being a patient of Dr. Robert Hunt
and the Applicant having been referred by Dr. Hunt to Dr. Silver (Lien Claimant's
Exhibits 4 through 23). None of the medical reporting generated by Dr. Silver and
supplied to this Court establish that Dr. Silver was ever the primary treating
physician in this case.
Credible and unrebutted expert testimony by Yollete Capalla that lien claimant was adequately compensated and overpaid according to the official medical fee schedule.
Favours Defendant prevailed
This testimony was relied upon to deny additional reimbursement and penalties.
Confusing and contradictory payment ledgers offered by lien claimant failed to rebut expert testimony.
Favours Defendant prevailed
This undermined lien claimant's claim for additional reimbursement.
From the decision · page 7payment ledgers as evidence (Lien Claimant's Exhibits 1, 2, and 3). Petitioner, now,
only urges this court to rely upon Lien Claimant's Exhibit 1. That document is
confusing, at best. In addition to the issues identified in the Opinion on Decision
(Opinion on Decision, dated 8/2/2021, page 1, second paragraph), Lien Claimant's
Exhibit 1 seemsdesigned to make it as difficult as possible to figure out the charges
alleged and payments received and is so unfinished that it has to be totaled by hand.
It fails to lists dates of services 9/24/2004 and7/30/2004 with payments made by
Defendant for those dates (Defendant's Exhibit B) and fails to include charges
related to dates of service 5/11/2004 (Lien Claimant's Exhibit 17) and 5/3/2004
(Lien Claimant's Exhibit 20). Lien claimant offered no evidence to explain any of
these discrepancies, or to explain the basis for any additional reimbursement for the
pending lien claim of lien claimant.
Defendant's failure to appear at lien conference was due to lack of notice, not bad faith.
Favours Defendant prevailed
No sanctions or costs were imposed on Defendant for this non-appearance.
From the decision · page 13Pursuant to Defendant's Answer dated 4/8/2016, Defense counsel
simply did not get notice of the hearing. This court will not impose sanctions and
costs against any party who did not get notice of a hearing, and, therefore, did not
appear for a hearing. Such non-appearance is justified, therefore.