Recently, in an en banc decision, the Workers’ Compensation Appeals Board addressed the issue of how much and what kind of proof is needed to prove or rebut the reasonable value of a medical lien. The WCAB, in the case of Tapia v. SB Surgery Center, 73 Cal. Comp. Cases 1338 (Appeals Board en banc decision) found that:

· A medical lien claimant has the burden of proving its charges are reasonable;

· The billing, by itself, does not establish that the claimed fee is reasonable, and therefore, even in the absence of rebuttal evidence, the lien need not be allowed in full if it is unreasonable on its face; and,

· Any evidence relevant to reasonableness may be offered to support or rebut the lien.

In Tapia, the only question at issue was the reasonableness of the lien claimant’s billing. The WCAB stated that “it is not a defendant’s burden to prove that [a medical lien claimant’s] claimed fee is not reasonable. To the contrary, the [lien claimant] has the affirmative burden of proving its lien is reasonable, and it must carry this burden by a preponderance of the evidence.” (emphasis in original).

While the Tapia decision is helpful to defendants litigating medical lien claims, there are also a number of steps to take prior to litigation that will assist a defendant in asserting a defense against the allowance of a lien. Keep in mind the following when dealing with billing from entities which are potentially future lien claimants. First, under Sandhagen v. WCAB and SCIF, (2008) 44 Cal. 4th 230; 186 P.3d 535; 79 Cal. Rptr. 3d 171, when a treatment request is received, unless it is fully authorized, the utilization review process must be undertaken in a timely fashion. Importantly, pursuant to California Code of Regulations Section 9792.9, in addition to the requesting physician, the applicant, and if represented, his or her attorney, a non-physician provider of goods or services, if identified in the request for authorization, shall be notified in writing of the decision modifying, delaying, or denying a request for authorization. Further, this written notification to the non-physician provider of goods or services shall not include the rationale, criteria, or guidelines used for the decision.[1] This is important to remember, so that in cases where there is a timely UR denial, we are able to use the denial to defend against the lien claim.

Another important tool which assists in the defense of lien claims is the objection letter. In most cases, an objection letter should be sent within 30 days of receipt of the billing/invoice. In these letters, it is important to set forth the basis for your objection, which allows the potential lien claimant to be put on notice of the disputed issue(s). These letters also help in asserting a defense against a claim for penalties on top of a lien claim down the road.

Finally, it is important to remember the necessity of serving all potential lien claimants with a copy of the settlement documents and award or order approving in a case. This protects your interests with respect to the statutory period for filing a lien. Pursuant to Labor Code Section 4903.5(a), a lien claimant may not file a lien:

after six months from the date on which the WCAB or a WCALJ issues a final decision, findings, order, including an OACR, or award, on the merits of the claim;
after five years from the date of injury for which the services were provided;
or after one year from the date the services were provided, whichever is later.

Therefore, remember to keep your attorney advised of all potential lien claimants so that they may be served with a copy of the settlement document and award or order approving.

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[1] The UR determination sent to the requesting physician, the applicant, and if represented, his or her attorney, shall include this information however.