Defending Against Medical Treatment Liens

Saturday, August 3, 2002 | 0

If you are a regular reader of workcompcentral you may have noticed recently some discussions in the articles on IMC Guidelines, and medical management from the claims examiner perspective. If you are a defense attorney, quite often you are called upon to assist in the resolution of disputed medical bills after or while the primary case is settling. Knowing a medical providers rights, and what the Industrial Medical Council has prescribed as appropriate is important to ensuring a fair outcome for your client.

Go back to your first year of law school and the guiding axiom for all of trial lawyering: Argue first the facts. If that doesn't work, argue the law. If that doesn't work, baffle them with bull excrement. Okay, forget about the last part. That rarely works. But paying attention to the first two is important strategy.

First the facts -obviously how the injury occurred and what body parts were affected initially, as well as subsequently, is extremely important to an analysis of the appropriateness of medical services the injured worker receives. History, from the claimant's own mouth, is best derived by a thorough deposition. Are depositions always indicated? No, but more often than not the deposition remains one of the most important litigation tools for securing the facts. Typically you get only one shot at a deposition, so preparation is key to ensuring all of the right questions are asked. In other words, read the medical file thoroughly before asking questions.

The next part of the facts are the IMC guidelines. Determine through what stages the claimant's treatment course was steered by the medical vendors: primary, secondary or tertiary. Each of these is discussed in the IMC guidelines, and each has specific attributes for both diagnostics and treatment modalities that are either approved, disapproved or may be questionable depending on the specific clinical category the primary treating physician places the injured worker.

Next is the law. The law distinguishes between treatment services and medical-legal services. The first analysis for treatment liens is to determine the injured worker's treatment rights - the treatment must be 'reasonably required to cure or relieve'. (LC 4600 et.seq.) Next, did the physician fulfill his/her duties under Reg 9785? Is the physician the 'primary treating physician' per Reg 9785.5? Regulation sections 9785 through 9785.5 control, and Labor Code sections 4600 through 4600.3 also define the legal rights of the parties.

Once the questions raised by the application of the regulation and code sections are satisfied, the next step in the legal analysis is application of restrictions on the amount of bills, or the Relative Value Schedule, aka Official Medical Fee Schedule. The fee schedule is promulgated by Regulation sections 9791 through 9792. Remember however that the conversion factors establish the reasonable maximum fee, but a provider may be paid in excess of the RVS schedule if justified by an explanation of extraordinary circumstances related to the unusual nature of the services. (Reg 9792.)

Finally, an analysis must be made as to whether the prescribed procedures for the transmission of a bill and payment thereon have been followed. This is important not only in challenging the bill, but in knowing and preserving the carrier's rights as well. Copies of any and all objection letters need to be in your possession, catalogued and analyzed to ensure that they all comply with Regulation 9792.5.

With medical costs comprising the biggest chunk of claim dollar, and growing, defense attorneys will be called upon even more to defend carrier's and employer's interests against rising medical bills. Be prepared. Know the facts, know the law and argue both.