Since the advent of SB863, more and more providers are dismayed at why they aren’t able to collect money on their liens either through in-house collections or via litigation at the WCAB. However, SB863 and even SB899 10 years prior, change the scenery of Work Comp and changed the way the business of treating industrial injuries was done. Yet, many providers didn’t change with the law and have the expectation of the same return.
As the Managing Director of Liening Edge, a Workers’ Compensation lien litigation company that represents lien claimants at the WCAB, the number one thing I have learned especially from Judges is to be prepared. That preparedness starts with our clients. Even the best hearing reps are of no help if they don’t have a complete file or have documentation in their file to support their arguments. It is vital that providers know their burden.
Lien claimants always have the burden of proof for all aspects of their lien Tapia v. Skill Master Staffing 73 CCC 1338, and can also be held liable for sanctions for proceeding to trial with evidence utterly incapable of carrying their burden Torres v. AJC Sandblasting 77 CCC 1113 (WCAB En Banc). This burden includes proving the injury, that the services rendered were reasonable and the reasonable value of the charges. There are other issues where the burden may be even further such as the medical control (i.e. treating outside the Medical Provider Network).)
When you file a lien or even bill for goods or services that is allowable as a lien and don’t get reimbursed for those services in a Workers Comp case, you are in litigation.
You don’t have to be at the WCAB to start discovery. If your bill wasn’t paid, you probably received an objection letter. What was the reason they are objecting? You have just been put on notice of at least one issue that you are going to have to overcome to carry your burden. You don’t have to understand issues or be prepared to argue them, to demand discovery or documents that support their allegation/objection.
• The claim was denied? Ask for the relative claim documents such as the denial, the claim form, etc.
• The treatment was unreasonable? They can only make that objection if they sent it through Utilization Review. Ask for a copy of the UR denial.
• It is in excess of Fee Schedule. Ask for their bill review.
• Wasn’t referred by the PTP. Demand a copy of the election letter that designated who the PTP is.

Litigation is an extension of collections. From a litigation standpoint, it all comes down to evidence. From a collections standpoint having documents that support your treatment gives you a better position to settle files on the front end, rather than wait until files are sent to litigation, but all evidence and documents obtained on the front end also allows for more settlements on the back end.
Many providers, when prepping files for litigation send pre-prepared exhibit lists as well as pre-printed stips and issues. However, knowing what is actually evidence and what actually the issues are is imperative, otherwise they aren’t worth the paper they are printed on.
Labor codes, Case law, OMFS…none of these are issues. They are authorities. What is the issue?
Medical reports, Request for Authorization, referral/election letters….this is evidence.
Copies of case laws, excerpts from ACOEM or the OMFS are not evidence. A UR denial or certification is evidence. A certified bill review is evidence.
Know how to connect the dots. Too often the chain of how applicant got to provider can’t be determined.
• Diagnostic company A was referred by Doctor No.
• The applicant was referred to Dr. No by PTP Dr. Zhivago.
• Was Zhivago the elected PTP? Where is the evidence of that….election letter?
• Where is the referral to Dr. No from Zhivago?
• Recommendation or prescription from Dr. No to Diagnostic company.

You are sometimes at the mercy of the PTP and his reporting requirements Your referring physician may comment on the testing that he requested. However, he is a secondary treater. The PTP is the captain of the ship, he is who all the secondary treater’s report to and he is to adopt and incorporate the findings and recommendations in his report. (CCR 9785)

Although prudent, it isn’t the status quo that in-house collectors stay current with the law or know the issues and arguments, it is helpful to the business of your practice that they know the basic needs and how to prepare files and gather documentation, even if they don’t know that it is for. Prepare your files like everything is going to end up in litigation.

At the end of the day, defendants know that 90% of providers are not going to go forward at a trial. They know when you come nowhere close to meeting your burden of proof. So why do they offer anything…even 10%? It is an act of good-faith actually. They are willing to give you a nuisance value to just go away and not continue to clog the calendar with trials that are never going to be had. More and more lien claimants are backed into the corner utterly incapable of proving up their lien and the offers are lower and lower. So if providers want to continue to do business the old way, treating on a lien basis, outside of MPN on admitted claims, not comply with Utilization Review or IMR processes and have the same expectations of collection efforts, that explains their dismay.

I have worked for and/or represented many providers that have some notion that there is a formula for which you can assess what the expected return is on a given file. Again, you have the burden of proof on ALL aspects of your lien. If that is four areas and you fail one of those areas, it doesn’t reduce your lien by 25% or by X amount of dollars, it reduces it to zero. Having good collectors that stay informed or staff that understand how to prepare files will be able to negotiate. Same goes with the last defense, your representative at the WCAB, if they have been prepared they can fight your fight but it is very difficult to do that in the blind.