ADJ7858609 · July 17, 2023

The WCAB panel adopted the WCJ's report which found that the Petition for Reconsideration was without merit and denied it.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's report, which we adopt and incorporate, we will deny reconsideration.

Invoices showed number of pages copied as evidence that records were provided

Favours Applicant prevailed

Supported the lien claimant's proof of reasonable value of services

From the decision · page 5III DISCUSSION Defendant contends that because Lien Claimant did not submit the actual records produced in response to the various subpoenas, Lien Claimant has failed to meet their burden of proof that the records were actually produced where there was no Declaration from the Custodian of Records. Defendant notes that there is a Declaration from the Custodian of Records included with the subpoena exhibits for the records related to St. Agnes Medical Center, Reedley Physical Therapy and Marc Johnson M.D., which Defendant accepts as proof that the records were actually produced. (Exh. 6, SDT number 93877 for St. Agnes Medical Center dated 7/27/12; Exh. 9, SDT number 93880 for Reedley Physical Therapy dated 8/10/12; Exh. 11 SDT number 93882 for Mark Johnson M.D. dated 8/10/12.) Whether or not the Custodian of Records for the entity that is the subject of a subpoena completes and returns the Declaration is beyond the control of the lien claimant copy service. There is no case law cited by Defendant that requires lien claimants to submit either the Declaration of the Custodian of Records or the actual subpoenaed records in order to prove that the records were actually produced.

Defendant did not produce evidence showing failure to comply with subpoenas or failure to produce records

Favours Applicant prevailed

No evidence to rebut lien claimant's proof

From the decision · page 5This court relied upon the submitted Invoices that showed how many pages were copied as evidence that the records were actually provided. The court also notes that one of the locations that did not produce a Declaration of the Custodian of Records was the defendant. However, the defendant did not produce any evidence showing that they failed to comply with the subpoena or did not produce the number of pages of records as shown on the invoice. Defendant disputes the mileage claimed on several of the invoices by asserting that the subpoenas were served by mail and that on the Declaration of Custodian of Records there was a place where the Custodian could indicate that the records were delivered to the copy service. However, Defendant infers that because the Custodian of Records could indicate that the records were delivered, this is evidence that lien claimant did not incur any mileage expense related to obtaining the records.

Defendant failed to respond to lien claimant's billing with any objection or explanation for nearly two and a half years

Favours Applicant prevailed

Resulted in penalty and interest liability under Labor Code section 4622

From the decision · page 6In this case, the penalty and interest were calculated solely upon that portion of the lien claimant's billing that was determined to be reasonable and the employer did not prevail in defeating the lien claimant's claim in its entirety. Further, defendant failed to respond to lien claimant's billing with any objection or explanation of benefits for nearly two and a half years. Such a delay is clearly unreasonable and subjects the defendant to the penalty and interest as set forth in Labor Code section 4622.

California Labor Code

Labor Code section 4622

Penalty and interest apply when employer fails to timely pay reasonable charges and does not prevail in contesting the claim.

From the decision · page 6Labor Code section 5813, it is not sufficient to avoid penalties and interest as set forth in Labor Code section 4622. Labor Code section 4622(a)(2) sets forth what is required to avoid penalty provided for in paragraph (1) as follows: The penalty provided for in paragraph (1) shall not apply if both of the following occur: A) The employer pays the provider that portion of his or her charges that do not exceed the amount deemed reasonable pursuant to subdivision (e) within 60 days of receipt of the report and itemized billing. (B) The employer prevails.

California Labor Code

Labor Code section 5813

Having a possible argument may shield against sanctions and costs but not against penalties and interest under LC 4622.

From the decision · page 6Defendant contends that they should not be liable for penalty and interest as set forth in Labor Code section 4622(a)(1) because they had a possibly reasonable argument to support their objection to Lien Claimant's billings. However, while having a possible argument may be sufficient to shield against sanctions and costs under

Invoices showing number of pages copied as evidence that records were actually provided

From the decision · page 5III DISCUSSION Defendant contends that because Lien Claimant did not submit the actual records produced in response to the various subpoenas, Lien Claimant has failed to meet their burden of proof that the records were actually produced where there was no Declaration from the Custodian of Records. Defendant notes that there is a Declaration from the Custodian of Records included with the subpoena exhibits for the records related to St. Agnes Medical Center, Reedley Physical Therapy and Marc Johnson M.D., which Defendant accepts as proof that the records were actually produced. (Exh. 6, SDT number 93877 for St. Agnes Medical Center dated 7/27/12; Exh. 9, SDT number 93880 for Reedley Physical Therapy dated 8/10/12; Exh. 11 SDT number 93882 for Mark Johnson M.D. dated 8/10/12.) Whether or not the Custodian of Records for the entity that is the subject of a subpoena completes and returns the Declaration is beyond the control of the lien claimant copy service. There is no case law cited by Defendant that requires lien claimants to submit either the Declaration of the Custodian of Records or the actual subpoenaed records in order to prove that the records were actually produced.

Defendant did not produce evidence showing failure to comply with subpoenas or failure to produce records as shown on invoices

From the decision · page 5This court relied upon the submitted Invoices that showed how many pages were copied as evidence that the records were actually provided. The court also notes that one of the locations that did not produce a Declaration of the Custodian of Records was the defendant. However, the defendant did not produce any evidence showing that they failed to comply with the subpoena or did not produce the number of pages of records as shown on the invoice. Defendant disputes the mileage claimed on several of the invoices by asserting that the subpoenas were served by mail and that on the Declaration of Custodian of Records there was a place where the Custodian could indicate that the records were delivered to the copy service. However, Defendant infers that because the Custodian of Records could indicate that the records were delivered, this is evidence that lien claimant did not incur any mileage expense related to obtaining the records.

Defendant failed to respond to lien claimant's billing with any objection or explanation of benefits for nearly two and a half years, leading to penalty and interest liability

From the decision · page 6In this case, the penalty and interest were calculated solely upon that portion of the lien claimant's billing that was determined to be reasonable and the employer did not prevail in defeating the lien claimant's claim in its entirety. Further, defendant failed to respond to lien claimant's billing with any objection or explanation of benefits for nearly two and a half years. Such a delay is clearly unreasonable and subjects the defendant to the penalty and interest as set forth in Labor Code section 4622.