ADJ8078762 · January 27, 2025

The Appeals Board found that the cost petitioner met its burden to show a contested claim existed when the expenses were incurred and that the subpoenaing of records from the prior attorney and treating physician was reasonable and necessary, overruling the WCJ's contrary findings.

From the decision · page 5A lien claimant holds the burden of proof to establish all elements necessary to establish its entitlement to payment for a medical-legal expense. (See Lab. Code, § 3205.5, 5705; Torres v. AJC Sandblasting (2012) 77 Cal.Comp.Cases 1113, 1115 [2012 Cal. Wrk. Comp. LEXIS 160] (Appeals Board en banc).) Thus, a lien claimant is required to establish that: 1) a contested claim existed at the time the expenses were incurred; 2) the expenses were incurred for the purpose of proving or disproving the contested claim; and 3) the expenses were reasonable and necessary at the time they were incurred. (Lab. Code, § 4620, 4621, 4622(f); Colamonico v. Secure Transport, (2019) 84 Cal.Comp.Cases 1059 (Appeals Board en banc).)

Cost petitioner issued subpoenas for records from applicant's prior attorney and treating physician when the claim was contested and denied by defendant.

Favours Applicant prevailed

This established the existence of a contested claim at the time expenses were incurred, satisfying a key element for reimbursement under Labor Code sections 4620 and 4621.

From the decision · page 5First, we will address the subpoenaed records from the Law Offices of Jon Woods. The WCJ states in the Opinion on Decision, "... the first date of service was for a subpoena for the records from the Law Offices of Jon Woods. It is clear that the Provider has met its burden to show that there was a contested claim at the time the expenses were incurred." (Opinion on Decision2, 11/4/2024, p. 5.) In the Opinion on Decision, the WCJ states,

The attorney's decision to subpoena records rather than seek them by written request was within the attorney's discretion and reasonable under the circumstances.

Favours Applicant prevailed

This supported the finding that the expenses were reasonable and necessary, overruling the WCJ's contrary conclusion.

Treating physician whose records were subpoenaed; initial consultation and progress reports reviewed by QME Dr. Chiu.

From the decision · page 6Next, we will address the subpoenaed records from Dr. Harris. The WCJ states in the Opinion on Decision, "The second date of service at issue was for the subpoena of records from Dr. Arthur Harris. Again, it is clear from the record that the Provider met its burden to show that there was a contested claim at the time the expenses occurred." (Opinion on Decision, 11/4/2024, p. 6.) In the Opinion on Decision, the WCJ states, "... that Dr. Harris was some form of treating physician as his initial 10/31/11 consultation and progress reports were reviewed by the Panel QME, Dr. Chiu4." (Opinion on Decision, 11/4/2024, p.6.) The WCJ then states that "the treating physician shall make [and serve] reports to the claims administrator as required by 8 CCR 10635

QME whose report was basis for denial of permanent disability benefits and who reviewed Dr. Harris's records.

From the decision · page 2We will briefly review the relevant facts. Applicant claimed a cumulative trauma industrial injury from October 1, 2010 to October 1, 2011 to his neck, upper extremities, hands, back, lower extremities, and nervous system while employed as an Automotive Technician. On January 9, 2012, defendant issued a letter denying applicant's claim. (Exhibit 110, 1/9/2012.) On May 8, 2013, defendant issued a letter denying permanent disability benefits based on qualified medical evaluator (QME) Dr. Chiu's Report dated February 5, 2013. (Exhibit 111, 5/8/2013.) On May 23, 2013, applicant's attorney submitted an order referral request to PCI for applicant's records from Dr. Arthur Harris and Law Office of Jon Woods. (Exhibit 101, 5/23/2013.) On May 24, 2013, PCI issued a Subpoena Duces Tecum (SDT) for records pertaining to applicant from the Law Offices of Jon Woods. (Exhibit 103, 5/24/2013.) On June 22, 2013, the Custodian of Records for Arthur Harris, M.D., executed a declaration stating under penalty of perjury that applicant's records were made available to PCI for copying. (Exhibit 102, 6/22/2013.) On June 22, 2013, PCI issued an invoice for the requested copy services for the records of applicant from Dr. Arthur Harris.

Labor Code Sections 4620, 4621, 4622(f); Colamonico v. Secure Transport (2019) 84 Cal.Comp.Cases 1059 (Appeals Board en banc)

A lien claimant must establish a contested claim existed when expenses were incurred, that expenses were for proving or disproving the claim, and that expenses were reasonable and necessary at the time incurred.

The Appeals Board found the cost petitioner met its burden to show a contested claim and that subpoenaing records was reasonable and necessary, overruling the WCJ's contrary findings.

From the decision · page 5A lien claimant holds the burden of proof to establish all elements necessary to establish its entitlement to payment for a medical-legal expense. (See Lab. Code, § 3205.5, 5705; Torres v. AJC Sandblasting (2012) 77 Cal.Comp.Cases 1113, 1115 [2012 Cal. Wrk. Comp. LEXIS 160] (Appeals Board en banc).) Thus, a lien claimant is required to establish that: 1) a contested claim existed at the time the expenses were incurred; 2) the expenses were incurred for the purpose of proving or disproving the contested claim; and 3) the expenses were reasonable and necessary at the time they were incurred. (Lab. Code, § 4620, 4621, 4622(f); Colamonico v. Secure Transport, (2019) 84 Cal.Comp.Cases 1059 (Appeals Board en banc).)

Testimony and documentary evidence regarding the subpoenaing of records from prior attorney and treating physician.

From the decision · page 5"The Provider has made no showing at trial via testimony or documentary evidence that Applicant ever requested his file and that said request was rebuffed or ignored by the Law Offices of Jon Woods. In fact, the record demonstrates that Appel & Rimbach executed the substitution of attorney on May 15, 2013 and that its subpoena for records from the Law Offices of Jon Woods was issued a mere nine (9) days later on May 24, 2013. As such, without such a showing, the Provider cannot meet its burden to demonstrate that these expenses were reasonably, actually and necessarily incurred.3 " (Opinion on Decision, 11/4/2024, p. 6.)