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Enforcement of Medical Liens - Accepted Treatment

Saturday, November 9, 2002 | 957 | 0 | min read

In the past we've talked about providing workers' compensation medical services on a lien basis. There are steps that need to be taken to ensure that your lien is properly filed and enforced to ensure that you don't lose your lien rights. The next couple of articles will address these issues, starting off with liens for treatment.

One of the best resources at workcompcentral.com for reviewing the legality of your lien, and following up on the steps necessary to enforce your lien is the Flowchart, and specifically the series of screens discussing lien procedures (though screens regarding Evidence and Trial procedures are also highly relevant, if you go past the settlement conference stage).

Treatment liens and medical-legal liens follow two different procedural paths, your rights are different in each case, because the underlying reason for filing liens in each is different. Treatment liens are typically filed for one of two reasons: 1) the injury was denied and thus the carrier is not providing for any medical treatment; 2) the carrier has denied a portion of your bill as either unnecessary treatment or in excess of the Official Medical Fee Schedule.

In this article we are going to assume that injury has been accepted. The first analysis in treatment liens on an accepted case is to determine the injured workers' treatment rights. Labor Code section 4600 requires that treatment be "reasonably required to cure or relieve". In most cases, the opinion of the carrier's medical-legal doctor (if there is one) is going to be determinative whether the carrier is going to pay you without contest. If there is no defense doctor commenting on your treatment then this is not a ground for objection by the carrier as they will have no admissible evidence to present at trial to rebut your opinion, and consequently risk penatlies. Reports by nurse case managers are not sufficient to rebut the opinion of a Medical Doctor. If you are the primary treating physician (PTP) pursuant to Regulation 9785, then your opinion has a presumption of correctness, which means that the carrier treads further into questionable legal grounds by failing to pay your bill at all, though they may still object on the grounds that the charges exceed the OMFS.

The next step in the analysis is to make sure that you have completed ALL of your duties under Regulation section 9785.

First, and this sounds more obvious than it is, there can be only one primary treating physician. If you are not a primary treating physician, then your rights are subordinate to the PTP - in other words, everything you do must have first been ordered by the PTP, or performed based on documentation provided you by the PTP. There may be successive PTPs, but again, only one at a time.

The PTP is responsible for accumulating and disseminating all medical reports obtained from all persons who provided service to the injured worker.

Within 5 days after the initial consultation the PTP must submit a 5021 report to the claims administrator. This report must include the opinions of any secondary treater (may be referenced by attachment).

Though "promptly" is undefined in 9785, the PTP has the duty to advise the claims administrator essentially any time that the injured worker's condition changes significantly, whether to permit a return to work, a worsening of condition, discharge or permanent & stationary status has been attained.

Progress reports must be submitted every 45 days on a PR-2, and when the injured worker is permanent and stationary, a final report on PR-3 form must be submitted, ensuring that all of the information required by Regulation section 10606 has been provided.

The next analysis in the PTP treatment lien is whether or not the billing exceeds the Official Medical Fee Schedule. This is when an expert medical billing clerk comes in handy and is worth their proverbial weight in gold, as procedural coding can radically short change your entitlement.

Finally, you get down to filing the lien, and your rights are dictated by Regulation section 9792.5: Within 30 days from the receipt of each billing and report TOGETHER (time periods run from receipt) the claims administrator shall object if applicable, and payment shall issue within 60 days on any portion that is uncontested. Any notice of objection shall include an explanation as to the basis of the objection and advise to the provider as to remedies available. If the provider is a hospital, surgical center or diagnostic center, the simple advise that the billing is being audited is sufficient objection. If the injury is denied or liability cannot be ascertained then an objection on those grounds is sufficient.

When you get to trial, the rules concerning Burden of Proof are applicable. The burden that your reporting and billing must carry is a preponderance of the evidence, which means 'such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth. When weighing the evidence, the test is not the relative number of witnesses, but the relative convincing force of the evidence.' LC 3202.5. This is not a terribly high standard to meet, but on the other hand, opposition evidence need only meet the same standard, leaving great leeway with the judge's discretion.

The next article will review procedures of enforcement of treatment liens where injury is denied.

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