Workers' Compensation

California: 10 Noteworthy Panel Decisions Involving Liens for 2011

Here are our picks for this year’s top 10 noteworthy panel decisions involving liens. subscribers can link to the panel decisions below. Reminder: Check the subsequent history of the panel decision before citing to it.

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1. Maria Cortez v. El Taco De Mexico, 2011 Cal. Wrk. Comp. P.D. LEXIS 13

Liens--Repackaged Pharmaceuticals--WCAB affirmed WCJ's finding that reasonable charge for repackaged medications provided by lien claimant to applicant/cook with injuries to abdomen and in form of hernia on 4/15/2003 and  during period 7/2000 through 7/19/2003 was 58 percent of charges billed, when medication was provided to applicant between 8/13/2003 and 4/25/2006, 2003 Official Medical Fee Schedule did not apply to medications provided, and WCAB calculated reasonable rate of reimbursement as 58 percent based upon lien claimant's assertion that it was entitled to full reimbursement of charges, averaged with an adverse inference of zero cost based upon provider's "usual charge" and defendant's history of payment at 66 percent. 

2. Arcelia Cisneros v. Grimmway Enterprises, PSI, 2011 Cal. Wrk. Comp. P.D. LEXIS 107

Liens--Medical--Statute of Limitations--WCAB, in a majority decision, upheld WCJ's order disallowing lien claimant's lien for medical treatment in connection with applicant's industrial injuries in form of fibromyalgia and myofascial pain syndrome on 4/2/2001 and during period through 5/2/2002, when Order Approving Compromise and Release settling applicant's case-in-chief was issued on 3/19/2008, defendant initially had notice that lien claimant provided medical treatment but lien claimant failed to respond after defendant paid less than full amount of lien claimant's billings, lien claimant did nothing until 2/8/2010 when he filed his lien, lien was filed outside time limits of Labor Code § 4903.5(a), and WCAB found that Labor Code § 4904(a) does not create an automatic "notice of lien" every time a defendant pays less than amount billed by lien claimant and that lien claimant's medical treatment lien was time-barred.

3. Jill Johnson v. Ventura Unified School District, 2011 Cal. Wrk. Comp. P.D. LEXIS 75

Liens--Medical--Durable Medical Equipment--WCAB affirmed WCJ's decision disallowing lien claimant's $68,231.00 lien for two implantable neurostimulators provided to applicant/teacher who suffered 7/13/2004 injury to her left lower extremity, when defendant established, through unrebutted testimony of its bill review expert, that Medicare rules required bundling of ambulatory surgery center charges, and that it had already paid for equipment through its payment of outpatient surgery center's facility charge in connection with 2007 and 2009 surgical procedures.

4. Ralph Wright v. State of California Department of Corrections, 2011 Cal. Wrk. Comp. P.D. LEXIS 405

Liens--Loss of Income Plans--WCAB, vacating its dismissal of lien claimant CCPOA Benefits Trust Fund's petition for reconsideration and denying reconsideration of its prior decision [see Wright v. State of California Department of Corrections, 2011 Cal. Wrk. Comp. P.D. LEXIS 405], held that CCPOA was not entitled to collect on its lien because lien did not come within definition of lien for reasonable value of living expenses under Labor Code § 4903(c), lien was not recoverable under Labor Code § 4903.1(a)(1) and (a)(2), and even if CCPOA could otherwise assert a lien under Labor Code § 4903.1(a)(3), such lien could only attach against an award of temporary disability and since defendant's temporary disability liability had already been discharged at time of award, Labor Code § 4903.1(a)(3) did not afford CCPOA any relief.

5. Angel Acosta v. Guildcraft Furniture Manufacturing Company, 2011 Cal. Wrk. Comp. P.D. LEXIS 351

Liens--Interpreting Services--WCAB affirmed WCJ's order disallowing lien claimant's lien in sum of $25,573.00 for interpreting services provided to applicant/quality control inspector at medical appointments connected to applicant's claims for industrial injuries to his bilateral shoulders, right knee, and cervical, thoracic and lumbar spine on 4/17/2007, and to his bilateral shoulders, neck, bilateral knees, feet, legs, and cervical, thoracic and lumbar spine, and in form of sexual dysfunction during period 8/10/94 to 5/17/2007, when WCAB held that lien claimant had burden under Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228 (Appeals Board En Banc Opinion), of proving that interpreting services were actually, reasonably and necessarily incurred, and that lien claimant failed to meet its burden of proof, as there was no evidence presented regarding lien claimant's procedures and process for arranging presence of an interpreter at applicant's medical treatment appointments, no proof that a doctor stated that an interpreter was needed for effective doctor-patient communication or that an interpreter was necessary for provision of proper medical care, no showing that amount of time required for services justified amount billed, and no proof that lien claimant possessed necessary level of qualifications at time services were provided.

6. Julia Campos v. St. Johns Regional Medical Center, PSI, 2011 Cal. Wrk. Comp. P.D. LEXIS 416

Liens--Medical--Statute of Limitations--WCAB, rescinding WCJ's finding, held that lien for medical treatment provided to applicant/PBX operator with 12/26/96 industrial injuries to her bilateral upper extremities, was not barred by Labor Code § 4903.5 statute of limitations for lien claimant's failure to file lien within 6 months of issuance of OACR, when WCAB found that defendant had ample notice of lien claimant's lien--a constructive lien pursuant to Labor Code § 4904(a)--yet failed to list lien in C&R for WCJ to review as required under Labor Code § 4903.1(b), and failed to serve lien claimant with C&R or OACR as required under 8 Cal. Code Reg. § 10886 so as to trigger six-month statute of limitations, and that lien claimant filed lien within three months of becoming aware of C&R.

7. Delmar Green v. State Roofing Systems, Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 216

California Insurance Guarantee Association--Covered Claims--Assignment of Liens--WCAB, granting removal, rescinded WCJ's Order Quashing Subpoena Duces Tecum issued by CIGA to lien assignee and held that CIGA was entitled to discover contract documents pertaining to validity of assignment of medical provider's lien to lien representative so as to obtain evidence regarding whether claim asserted by assignee was a "covered claim" pursuant to Insurance Code section 1063.1 (c)(9)(B) for which CIGA has liability.

8. Rosendo Cano v. Almaden Collision & Kenny Auto, 2011 Cal. Wrk. Comp. P.D. LEXIS 467

WCAB Jurisdiction--Liens--WCAB, granting reconsideration to correct ambiguity in language of findings and a clerical error, affirmed WCJ’s finding that WCAB was not deprived of jurisdiction pursuant to Labor Code § 5304 to determine allowable amount of medical provider’s lien claim for treatment rendered to applicant with 4/10/2008 industrial injury, when defendant workers’ compensation carrier produced only a contract between lien claimant and group health insurer Blue Cross but no express agreement between itself and Blue Cross fixing cost of medical services, defendant failed to establish a “chain of contracts” binding lien claimant to an express agreement with defendant in accordance with contract between lien claimant and Blue Cross, and WCAB found that “other payor” portion of contract between Blue Cross and lien claimant under which defendant was listed was not sufficient to establish that defendant had a valid contract in effect on dates of services provided by lien claimant.

9. Stephanie Neal v. Lowe’s, Sedgwick 14450 Long Beach, 2011 Cal. Wrk. Comp. P.D. LEXIS --

Liens--Dismissal of Lien for Failure to Appear--WCAB affirmed WCJ’s order dismissing lien claimant/qualified medical evaluator’s lien  for services provided to applicant in connection with her claim for industrial injuries, for lien claimant’s failure to appear at multiple hearings, when WCAB found that lien claimant was required to appear personally or through  a representative at all MSCs and lien conferences, that despite filing timely objection to WCJ’s notice of intent to dismiss (NIT),  lien claimant did not show good cause for his failures to appear, and that lien claimant made no valid showing of mistake, inadvertence, surprise, or excusable neglect so as to justify relief from failure to appear pursuant to Code of Civil Procedure § 473.

10. Rafael Tapia v. Media News Group, Inc./ANG dba The Argus Newspaper, 2011 Cal. Wrk. Comp. P.D. LEXIS --

Attorney’s Fees--Lien Claimant as Beneficiary--WCAB affirmed WCJ’s finding that Department of Health Services (DHS)/Medi-Cal was not a passive beneficiary in applicant’s workers’ compensation case and, on that basis, upheld WCJ’s order denying applicant attorney’s request for a fee award against $1,100,000 lien recovery of DHS/Medi-Cal, when WCAB found that (1) a determination regarding whether a lien claimant is a passive beneficiary turns on facts of each case, rather than on efforts of lien claimant’s counsel, (2) trial in this case was not focused on lien but rather involved issue of applicant’s employment versus independent contractor status and, therefore, DHS/Medi-Cal would have had to cover same ground as applicant to establish entitlement to reimbursement, (3) based upon its appearances in proceedings, DHS/Medi-Cal was not a passive beneficiary of a fund created by efforts of applicant’s counsel, as number of actual appearances, including appearance at mediation, represented more than a token appearance, (4) fund from which attorney’s fee was being sought was the product of negotiations between DHS/Medi-Cal and defendant and not between defense counsel and applicant’s counsel, and (5) where there is participation by two separate counsels, attorney’s fee for each counsel is determined by amount of recovery for each respective party, and in this case attorney’s fee awarded is payable from applicant’s settlement and DHS/Medi-Cal’s representative fee is payable from negotiated settlement or separate agreement with DHS/Medi-Cal.

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