New Standard of Proof for Surgery Facility Fees?

Saturday, June 30, 2007 | 2

By Jon C. Brissman I find the thrust of a WCAB panel's Decision After Reconsideration in the Francisco Jiminez v. Galaxy Shade Systems case (2007; WCAB Case No. ANA 0377538) to be troubling. The decision appears to spin the WCAB En Banc decision in Kunz v. Patterson Floor Coverings case (2002) in a manner not previously applied.

The Kunz case said, inter alia, "... the lien claimant must prove by preponderance of the evidence all of the elements necessary to the establishment of its lien." [Kunz at 1592] But it also said, "In the absence of persuasive rebuttal evidence from the defendant, the outpatient surgery center's billing, by itself, will normally constitute adequate proof that the fee being billed is what the outpatient surgery center usually accepts for the services rendered (and that the fee being billed is also consistent with what other medical providers in the same geographical area accept). [Kunz at 1598-99].

From the time that the Kunz decision was published, the workers' compensation community has largely interpreted the latter quote in the above paragraph to mean that a surgical facility's submission of its billings satisfied the requirements set forth in the former quote, and thereafter shifted the burden of proof to defendant to show the charges were unreasonable. If defendant is able to meet its burden via rebuttal evidence, the lien claimant may then offer contrary evidence, and the trier-of-fact renders a finding based on the most persuasive evidence. No reported decisions subsequent to Kunz dispute the community's interpretation.

Now, however, the Jiminez decision casts that interpretation into question.

First, Jiminez says that the submission of a facility's billings does not establish what is a reasonable charge in a particular case. The decision does not indicate what additional evidence could be introduced. Nonetheless, the panel apparently rejected the formerly accepted notion that introduction of the billings were sufficient to shift the burden of proof to defendant. In fact, after the facility submitted its billings into evidence, defendant offered insufficient proof, in the WCJ's opinion, to meet its burden of showing the charges to be unreasonable. Essentially, the Jiminez decision says that the evidence standard for the facility as set forth in Kunz was inadequate, and that some unspecified additional evidence must be offered before defendant has to shoulder the burden of rebuttal.

Second, Jiminez says, "... The WCJ erred in charging defendant with the burden of proving that applicant's [sic] charges were unreasonable." The statement appears to directly contradict Kunz, which sets forth a listing of the evidence defendant may present to do exactly that. Perhaps the Jiminez panel simply concluded that defendant s burden need not be shouldered until and unless the lien claimant made its prima facie case for reasonableness, and found that the lien claimant's meeting of the Kunz standard had not established such. It is unlikely that the panel really meant that defendant had no burden to show the charges to be unreasonable; more likely, the panel was speaking about when and how defendant's burden arose. Regardless, Jiminez represents a sea change on the application of the Kunz principles.

Third, Jiminez says, "... a WCJ need not accept a billing statement which is on its face unreasonable." The panel then dismisses a writ-denied case, Universal Building Services, vs. WCAB (Yturbe) (2006), 71 Cal Comp Cases 655, that says exactly the opposite. Note that the Jiminez panel is disagreeing with another WCAB panel that decided Yturbe. Further note that the reported and published Yturbe case, while not precedential, is still properly citable authority (see SCIF v. WCAB (1995) 60 Cal. Comp. Cases 717, while the Jiminez decision is not.

If the Jiminez panel did not directly contradict Kunz, it certainly convinced many in the workers' compensation community that it did. Hopefully, a petition to the Court of Appeal for a writ of review will be forthcoming.

Jon Brissman is an attorney with Brissman and Associates.

-------------------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.