Workers' Compensation

California Official Medical Fee Schedule: Another Death of the Extraordinary Circumstances Exception Post-2004

Another WCAB panel finds that the extraordinary circumstances exception in the OMFS has died post-2004

In Garcia v. E Recycling of California, Zurich North America, 2015 Cal. Wrk. Comp. P.D. LEXIS –-, a WCAB panel rescinded the WCJ’s finding that the lien claimant Western Medical Center was entitled to payment of fees in excess of the inpatient fee schedule set forth in the Official Medical Fee Schedule (OMFS) pursuant to 8 Cal. Code Reg. § 9792(c)(2) due to the applicant’s urgent injury and extraordinary nature of services provided by the lien claimant, and held instead that the lien claimant was only entitled to payment pursuant to the 2004 OMFS and nothing further.

(Publisher’s Note: Citations link to lexis.com; bracketed citations link to Lexis Advance.)

The WCAB reasoned that Labor Code § 5307.1 [LC 5307.1], which allows payment in excess of the OMFS for medical treatment related to extraordinary services, was deleted in 2004, that, concurrently, Labor Code § 5307.1(e)(1) was amended to provide for adoption of a new OMFS after 12/31/2003, and that because the 2004 OMFS is a fee schedule now authorized by Labor Code § 5307.1, the WCJ should not have relied on 8 Cal. Code Reg. § 9792.1(c)(2) [8 CCR 9792.1], which addresses an exception to the pre-2004 fee schedule, but rather should have been guided by 8 Cal. Code Reg. § 9789.22(a) [8 CCR 9789.22], which sets forth the fees for inpatient medical services beginning in 2004 and does not contain an exception for extraordinary services.

(Publisher’s Note: See also discussion of the Torres Tavera noteworthy panel decision.)

Additionally, the WCAB, affirming the WCJ, held that the WCJ had jurisdiction over the fee dispute between the lien claimant Western Medical Group and the defendant pursuant to Labor Code § 5304 [LC 5304], when the WCAB found that there was insufficient evidence to support the existence of an express agreement between the defendant and the lien claimant fixing fees, that there was no evidence presented regarding compliance with the disclosure requirements in Labor Code § 4609(a) [LC 4609], that while it is appropriate to review the chain of contracts to determine whether there was an agreement to fix the amounts to be paid for medical treatment, the defendant failed to provide a sufficient nexus between the various documents offered as evidence of the contract and services provided to the applicant for his industrial injury. Therefore, based on the evidence submitted, the defendant failed to meet its burden of proving the existence of an express agreement or of a chain of contracts fixing fees. Even had the defendant proven the existence of a valid series of contracts between itself and Western Medical so as to create a binding contract between the entities under Labor Code § 5304, the WCAB would still retain jurisdiction absent an arbitration clause in the agreements.

Read the Garcia noteworthy panel decision.* It remains to be seen if the lien claimant will file a petition for reconsideration of the WCAB’s decision. Stay informed by subscribing to our free California workers’ comp eNewsletter. Sign up at www.lexisnexis.com/wcnews.

* CAUTION: This decision has not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy (a “noteworthy panel decision”) because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

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