Defending Against Medical-Legal Liens

Sunday, August 18, 2002 | 0

In our last article we looked at defending against medical treatment liens, and discussed going back to basics with the facts and the law. Defending against unscrupulously billed medical-legal follows the same analysis, but the law is a little different.

Just as in the evaluation of a treatment lien, with medical legal a thorough understanding of the history as documented in the medical report is essential. There are two areas of importance relative to the history, and they are the essence of the definition of a medical legal expense in (Labor Code 4620: "for the purpose of proving or disproving a contested claim").

First, there has to be a reason that the services were required for some evidentiary purpose before an adjudicatory body. If the medical expense is not for evidentiary purposes, or lacks evidentiary quality, then by definition it is not medical-legal and must be treated as a medical treatment expense. An evidentiary purpose is that the service was procured in order to submit it as an expert's opinion. In work comp, since medical reports do not need to be qualified as they would in a civil proceeding to serve as expert testimony, we all forget that the reports are not ipso facto qualified to serve as an expert opinion on the topic for which it is offered.

For example, remember back in the hey days of the medical-legal mills defense practitioners after a while noticed that there was a certain commonality between reports. In fact, some of those commonalities were so egregiously obvious that it simply was a matter of getting the Workers' Comp Judge to hold two reports side by side to note that the physical examinations were completely the same despite different claimants, injuries, etc. Obviously, such a report has little to no evidentiary value, and should not be compensated as such.

Another example of a medical report that lacks evidentiary quality is one where either the history of injury or the past medical history of the claimant is so flawed that it could not be relied upon in determining the parties' rights. A quality claimant's deposition backed with supporting documentation will assist in this endeavor. And remember, even if the claimant is able to rehabilitate his case, if it is not done on the medical report for which the contested billing is based, then that billing must accordingly.

Second, the expense must be about a contested claim. If the claim is admitted, and there is no challenge to the physician's determination of any legal issue, then there is no contested claim, ergo no medical-legal expense and the matter must be treated as a treatment item. And just because a claim is litigated does not mean that any medical-legal report that has been obtained passes the test for a contested claim. Let's say you are litigating a back injury. All of a sudden a psychiatric report is presented when there was no prior indication of any psyche component to the claim. How can this be contested if there has been no indication that the psyche component was denied?

The next set of facts to evaluate/argue, assuming that there is a legitimate reason to obtain a medical-legal evaluation, is the billing and the carrier￢ﾀﾙs response to it. The law is very clear about what needs to be paid and when, and is typically ambivalent about how much should be paid despite a fee schedule.

Essentially the law is that medical-legal expenses shall be paid within 60 days from receipt of the report and bill unless liability is contested. Any uncontested amount shall be paid in this time period. First ￢ﾀﾓ was the billing accompanied by a report? Second, did the carrier deny liability for the claim? Third, did the carrier make any payment? These are simple factual questions that are going to be determinative of the carrier's obligations.

Look at the objection letters that may have issued in response to the billing. Any objection must state the basis for 'each contested procedure and charge', a clear description of what additional information is necessary, the name, address and telephone number of the person to contact concerning the objection, and a statement that the issue may be adjudicated before the WCAB. (Reg 9794.

Finally, remember that only that a medical-legal expense needs to be both reasonableand necessary. (Labor Code 4621 provides that "The reasonableness of, and necessity for, incurring these expenses shall be determined with respect to the time when the expenses were actually incurred." Such costs shall not be incurred earlier than the date of receipt by the employer of all reports and documents required by the administrative director. Medical-legal exams shall not be performed during the first 60 days after receipt of the claim form unless injury is denied during that time or it is a Qualified or Agreed Medical Examination. There is no liability for exams performed in violation of this restriction.

A medical-legal report needs to be figuratively read twice: once for the purpose of determining its effect on the case in chief, and second to determine whether in fact it is deserving of medical-legal billing status.