California: Lean into Workers’ Compensation Lien Trials with This Winning Strategy

By Hon. Colleen Casey, Former Commissioner, California Workers’ Compensation Appeals Board

The battle of the bill review experts is on! This issue was the focus of the recent Noteworthy Panel Decision (NPD) of Russell v. Providence Health and Services, 2024 Cal. Wrk. Comp. P.D. LEXIS 335. On one side, we had the expert for lien claimant, Dental Trauma Center, requesting $15,548.84 in fees for dental services and appliances admittedly provided to the injured worker, Donate Russell. On the other side, we had the defense expert witness in bill review, Donald Hodge, Jr., claiming that $5,499.07 was the more appropriate amount for the lien reimbursement for the dental services provided.

SPOILER ALERT: Defense wins. After a lengthy trial with substantial testimony by both sides, the judge found in favor of defense and awarded lien claimant the amount of $5,499.07. The WCAB affirmed the decision on October 15, 2024. The prevailing party in this match made optimum use of trial techniques discussed below. With a few tweaks, you might also want to adjust these processes and increase your odds of prevailing at trial as well. 

I. Relevant Facts of the Russell Case

On 10/31/2017, Donate Russell, age 41, was performing his usual job duties, as an Environmental Services Technician (EVS) cleaning and disinfecting the employer’s premises, when he sustained an industrial injury requiring dental care. Said dental care was provided by lien claimant Dental Trauma Center from 2/8/2021–6/25/2021. Lien claimant Dental Trauma Center subsequently billed for these services, which amount is the subject of the instant lien trial.

There is no Official Medical Fee Schedule (OMFS) for dental services. Therefore, alternate methods of billing verifications were used to determine accuracy. At trial, in addition to substantial exhibits in support of their respective positions, both the defense and Dental Trauma Center offered evidence in the form of expert testimony. A close examination as to how this evidence played out reveals key details that either supported or detracted from each litigant’s position.

II. Legal Research

Playing competitive tennis throughout my life taught me never to set foot on the court without first getting a run-down as to game plan of my opponent. If she consistently used her killer back stroke, I’d aim for an overhead lob to her dominant side. Sometimes I won. Sometimes I found out her other strokes were even more powerful than her backhand. But the “opposition research” gave me an edge.

The concept is the similar in litigation. Before setting foot into the workers’ compensation court, it’s helpful to know what theories and evidence opposing counsel has used in the past. More important, what type of rulings resulted from their efforts?

For instance, if I were defense counsel in the Russell case cited above, I would have pulled the recent decisions dealing with the lien claimant Dental Trauma Clinic. I’d then see if I could find any helpful hints or patterns that had previously arisen and that might arise in the current situation, as follows:

• Robinson v. Frank Lanterman Developmental Services, 2024 Cal. Wrk. Comp. P.D. LEXIS ___ (issued 10/22/2024) Medical treatment is not apportionable. (See Granado v. WCAB (1968) 69 Cal. 2d 399.) Case returned to trial level for a decision on the merits.*
• Ruelas v. Dart Logistics, 2024 Cal. Wrk. Comp. P.D. LEXIS 23, “Since Petitioner is not the primary treating physician and his opinions were not incorporated by the primary treating physician per 8 CCR §9785(e), the Court cannot rely on Petitioner’s opinion that Applicant sustained a dentalinjury as a compensable consequence of the orthopedic industrial injury.” The lien was denied. (See also Tighe v. Long Beach Unified School District, 2012 Cal. Wrk. Comp. P.D. LEXIS 210, for a similar holding.)
• Lara v. Daughters of Mary & Joseph, 2023 Cal. Wrk. Comp. P.D. LEXIS 83, DentalTrauma Center failed to meet its burden of proof. They didn’t offer substantial medical evidence to support an industrial injury to applicant’s non-orthopedic body parts.
• Alvarado v. Sky Ready Mix, Inc., 2020 Cal. Wrk. Comp. P.D. LEXIS 268, Lien claimant’s representative had an ex parte communication with the Judge in chambers, asking him to disqualify himself due to his alleged prior comments disparaging the lien claimant.

Practice Tip: Always find an alternate way to communicate information to the judge rather than ex parte communications. Such actions have been deemed sanctionable.

• Dental Trauma Ctr v. WCAB (1999) 65 Cal. Comp. Cases 110 (writ den.). Lien denied since medical treatment provided was outside the scope of the practice of dentistry, as defined in Bus. & Prof. Code § 1625.

III. Selection of the Expert Witness

The selection of an expert witness to testify as to the appropriate value of reimbursement is critical to the success or failure of a litigant in a lien trial. The importance of this issue was highlighted in the Russell NPD when the defense attorney objected to the qualifications of lien claimant’s “billing expert.” The Judge overruled the objection but noted, “the degree of Mr. Fuentes’ qualifications would be given due consideration with respect to the weight accorded to his testimony.” Ah hah! That line sent a firm message to counsel that the Judge expected their experts to be impeccably qualified and well versed as to what was needed to support reimbursement for any sort of medical treatment bill in the form of dental services.

Defense called Donald Hodge, Jr., as their witness. The Dental Trauma Center called Manuel Fuentes to testify on their behalf. When selecting an expert, the first consideration should be the qualifications of the witness.

After comparing the credentials, experience, and command of the law of both experts, it seems that one expert consistently ranks higher and is more persuasive than the other.

A. Credentials

(1) Donald Hodge – Defense Expert

• Designated as a certified bill reviewer per Insurance Code § 11761, which mandates a minimum 40 hours of initial training and ongoing continuing education throughout the reviewer’s career. See Regulations at 10 CCR 2592.04.
• Earned the Self-insurance Claims Examiner Certificate.
• Earned the Workers’ Compensation Claims Professional Certificate.

(2) Manuel Fuentes – Expert for Dental Trauma Center

• “Mr. Fuentes received a certificate from WorkCompCentral after completing a class there taught by Sue Honor in 2020.
• He testified before Judge Pollak…who found his testimony credible.”

B. Experience

Next, work experience in the appropriate field should be examined:

(1) Donald Hodge – Defense Expert

• 20 years of workers’ compensation experience as a bill reviewer, senior hearing representative, lien specialist, and expert witness.
• Seven years with his current employer Medical Cost Review.
• Thirteen years with his prior employer as a hearing representative, bill reviewer, and lien specialist with The Zenith insurance company.

(2) Manuel Fuentes – Expert for Dental Trauma Center

• Fuentes runs a medical billing company that provides services to dentists and has more than 1,000 active clients in 19 states.

C. Familiarity with the Governing Law

The third consideration should be whether the expert is familiar with the applicable law, and the methodology that should be used to apply the law to the facts in any given case.

(1) Donald Hodge – Defense Expert

• “Mr. Hodge explained that a Kunz study is a study of what is paid for non-fee schedule items in a specific geographic region.” See Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal. Comp. Cases 1588 (WCAB en banc) and Tapia v. Skill Master Staffing, Liberty Mut. Ins. Co. (2008) 73 Cal. Comp. Cases 1338 (WCAB en banc).
• He understood that it is the lien claimant’s burden as to all elements of the issue as set forth in the Kunz and Tapia cases cited above. Lien claimant in this case must prove:
  • Applicant has an industrial injury that affects the teeth.
  • Medical control at time treatment was rendered.
  • Treatment was by a qualified medical provider.
  • Treatment was necessary to cure or relieve.
  • Charges must be reasonable.

(2) Manuel Fuentes – Expert for Dental Trauma Center

• No mention was made in the case summary for the Russell NPD, as to the extent, if any, of Mr. Fuentes command of the relevant applicable law in this case.

D. Determination Process

Fourth, what type of metrics were used by the expert to determine the amount most appropriate for the lien reimbursement.

(1) Donald Hodge – Defense Expert

• He thoroughly reviewed the bills of the Dental Trauma Center for services and dental appliances provided by David Schames, D.D.S., and completed the bill reviews that were admitted into evidence in this case.
• Hodge explained there is no OMFS for dental services. Therefore, other metrics must be used to determine accurate billing for each service or appliance provided. He thoroughly explained his use of other metrics to make his determination.
• He performed two Kunz studies in this case:
  • A dental Kunz study settlement log; and
  • A collection of Dr. Schames’ bills from 2016 to 2022.

(2) Manuel Fuentes – Expert for Dental Trauma Center

• Fuentes reviewed four years’ worth of Dr. Schames’ bills. He used this familiarity with his billing practices to determine accurate amounts for each service.
• The lien claimant Dental Trauma Center did not prepare a Kunz study, but he did review one prepared by the lien claimant and he “has no reason to think that it is false.” In that study, the lien claimant provided Explanations of Benefits (EOBs) from the past few years with the same date range as in the present case, with the same or similar codes. These EOBs show that multiple carriers paid the amount that the lien claimant was charging for these services.

E. Case Specific Considerations

Finally, the expert should be aware of any unique considerations at play given the facts of this particular case.

(1) Donald Hodge – Defense Expert

• One significant issue, Mr. Hodge explained, dealt with the bill for an “occlusal guard” or “oral device/appliance used to reduce upper airway collapsibility.” It is standard knowledge that this type of device is used for patients diagnosed with sleep apnea. Sleep apnea must be diagnosed by a “sleep” physician. There is no finding in the record that this diagnosis had been made for the injured worker. In addition, Dr. Schames (lien claimant) is a dentist, and not a “sleep” physician. He is not qualified to diagnose sleep apnea. The lien claimant should not have provided services or appliances for this ailment without a proper diagnosis.

(2) Manuel Fuentes – Expert for Dental Trauma Center

• During cross-examination, Mr. Fuentes, expert for the lien claimant, admitted that he didn’t “recall seeing any reference by Dr. Schames to a diagnosis of temporomandibular joint (TMJ) disorder or sleep apnea. He explained that he wasn’t a doctor, so he did not know whether a particular diagnosis is required for devices prescribed by Dr. Schames.”

IV. Takeaways

As stated above, after comparing the qualifications of both experts, the Judge determined the defense expert to be consistently more persuasive than the one for lien claimant. It was the testimony from this expert, Mr. Hodges, that was relied upon by the Judge for his determination. This illustrates how important the selection of an expert witness is to success at trial.

Also, as demonstrated in this case, it’s a good idea to keep a checklist as to the evidence produced to support each side’s burden of proof on each issue, and in order to determine to what extent rebuttal evidence is required. The lien claimant has the burden of proof on all issues. However, as demonstrated in this case, it was the rebuttal evidence that was key to defendant’s ability to prevail in this matter.

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*This case is one of almost a dozen or so recent cases where the Petition for Reconsideration did not arrive at the WCAB office in San Francisco in time for the Commissioners to act on the Petition within the 60-day statutory time frame of Labor Code § 5909. Contrary to recent DCA decisions mandating an automatic denial of the Petition under such facts, the WCAB commissioners relied on the concept of “equitable tolling” to issue a decision in this case addressing the merits of the petition in order to provide all parties with their right of due process.

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