ADJ10575571 — California WCAB decision

ADJ10575571 · July 21, 2023

Reconsideration granted; May 1, 2023 decision affirmed with amendments including finding defendant liable for sanctions under Labor Code section 5813 and amending penalty to statutory increase under section 4603.2(b)(2).

Issues decided

Medical opinions weighed

Authorities named

District office

Van Nuys

What the panel ordered

Defendant sought reconsideration of the May 1, 2023 First Amended Findings, Awards and Orders, which the WCJ issued, and the WCAB granted reconsideration and affirmed the decision with amendments.

Read the official decision →

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Penalties under Labor Code §5814Applicant prevailed

The WCJ and WCAB found defendant's failure to timely pay lien claimant was unreasonable and warranted maximum statutory penalties under section 5814.

Sanctions under Labor Code §5813Applicant prevailed

The WCJ and WCAB found defendant's defense based on the 12-month statute of limitations was frivolous and without merit, justifying sanctions under section 5813.

From the decision · page 10ORDER IT IS HEREBY ORDERED that the City of Los Angeles and AM Lien Solutions are jointly and severally liable for monetary sanctions pursuant to Labor Code section 5813, payable to the General Fund, and are further jointly and severally liable for costs and attorney fees pursuant to WCAB Rule 10421, payable to Kaiser Permanente Healthcare Foundation, in amounts to be determined by the WCJ in further proceedings.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

No evidence showed lien claimant knew or should have known of the industrial injury claim more than 12 months prior to lien filing.

Favours Applicant prevailed

This fact led to rejection of defendant's statute of limitations defense under Labor Code section 4903.5(b).

From the decision · page 13The burden of proof rests on the party holding the affirmative of an issue. (Labor Code § 5705.) To meet its burden, the party holding the affirmative of an issue is required to prove each fact supporting its issue by a preponderance of the evidence. "Preponderance of the evidence' means that evidence that when weighed with that opposed to it, has more convincing force and the greater probability of truth." (Lab. Code, § 3202.5.) In this case, defendant raised the statute of limitation pursuant to Labor Code § 4903.5 as an affirmative defense, it is defendant's burden to support each element, including that the lien claimant knew or should have known that an industrial injury was being claimed, by the preponderance of the evidence. No evidence was produced to support the contention that lien claimant knew or should have known an industrial injury was being claimed.

Defendant failed to provide any Explanation of Review (EOR) evidence to show compliance with payment requirements under Labor Code sections 4603.2 or 4610.

Favours Applicant prevailed

This failure supported imposition of statutory increase and penalties under Labor Code section 5814.

From the decision · page 7Here, defendant offered no EORs into evidence, and failed to substantiate its compliance with either section 4603.2 or section 4610. Accordingly, we discern no error in the WCJ's exercise of jurisdiction to determine the medical necessity of the lien.

Defendant's defense based on the 12-month statute of limitations was frivolous and without merit.

Favours Applicant prevailed

This fact justified sanctions under Labor Code section 5813 for bad faith litigation tactics.

From the decision · page 10ORDER IT IS HEREBY ORDERED that the City of Los Angeles and AM Lien Solutions are jointly and severally liable for monetary sanctions pursuant to Labor Code section 5813, payable to the General Fund, and are further jointly and severally liable for costs and attorney fees pursuant to WCAB Rule 10421, payable to Kaiser Permanente Healthcare Foundation, in amounts to be determined by the WCJ in further proceedings.

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

AMERelied upon

Found the case complicated due to injuries dating back to the 1990s and difficulty determining if treatment was for old or new injury.

Explains why lien claimant may not have known about the industrial injury claim earlier, supporting rejection of statute of limitations defense.

From the decision · page 12Furthermore, Labor Code § 4903.5(b) anticipates that the health care service plan may not know they were treating a claimed work injury until way after the last date of service, up to five years after the last date of service. The labor code anticipates the non-workers' compensation health care service plan may not be looking in EAMS to see if a claim has been filed. In this case, the parties put into evidence the report by agreed medical examiner Jeffrey A. Berman, M.D. dated July 27, 2017. Within the body of the report the agreed medical examiner says the case is complicated because the Applicant has injuries going back to the 1990s. This may be another reason the health care service plan did not suspect a new claim was filed. The agreed medical examiner found it complicated to determine if treatment was for the old injury or if there was a new injury. (Exhibit Z2 at p. 57.)

otherRelied upon

Indicated chronic pain related to a work-related incident in 1996, complicating determination of new injury onset.

Supports the complexity of injury history and lack of new injury symptoms, undermining defendant's statute of limitations claim.

From the decision · page 13Page 10, of the report discusses old injuries and states the Applicant denies new onset of symptoms." This does not constitute a new work injury. The same with Dr. Zhao, Dr. Zhao says chronic pain related to a work-related incident in 1996. (Exhibit 4 at p. 9.) The agreed medical examiner Jeffrey A. Berman, M.D. as well found it complicated to determine if treatment was for the old injury or if there was a new injury. (Exhibit Z2 at p. 57.) The Defendant's knew, before proceeding to trial there was nothing to indicate knowledge or should have known.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 5705

The burden of proof rests on the party holding the affirmative of an issue, requiring proof by preponderance of the evidence.

Defendant, as the party asserting the statute of limitations defense, must prove lien claimant knew or should have known of the industrial injury claim more than 12 months prior to lien filing.

From the decision · page 13The burden of proof rests on the party holding the affirmative of an issue. (Labor Code § 5705.) To meet its burden, the party holding the affirmative of an issue is required to prove each fact supporting its issue by a preponderance of the evidence. "Preponderance of the evidence' means that evidence that when weighed with that opposed to it, has more convincing force and the greater probability of truth." (Lab. Code, § 3202.5.) In this case, defendant raised the statute of limitation pursuant to Labor Code § 4903.5 as an affirmative defense, it is defendant's burden to support each element, including that the lien claimant knew or should have known that an industrial injury was being claimed, by the preponderance of the evidence. No evidence was produced to support the contention that lien claimant knew or should have known an industrial injury was being claimed.

Labor Code section 5813; Cal. Code Regs., tit. 8, 10421(b)

Sanctions may be imposed for bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay, or that are done for an improper motive or are indisputably without merit.

Defendant's frivolous statute of limitations defense justified sanctions under section 5813.

From the decision · page 8Finally, we note that pursuant WCAB Rule 10421(a), on its own motion or upon the filing of a petition pursuant to rule 10510, the WCAB may order payment of reasonable expenses, including attorney's fees and costs, and in addition, sanctions as provided in Labor Code section 5813, provided that the alleged offending party is given notice and an opportunity to be heard. (Lab. Code, § 5813; Cal. Code Regs., tit. 8, § 10421(a).) Here, the WCJ provided specific notice to the parties at the time of trial that the court was considering the imposition of sanctions under section 5813 for "meritless issues raised regarding Labor code 4903.5(b), official Medical Fee schedule and bad faith EOB/ denial." (Minutes, at 2:23.)

ADJ10575571 · July 21, 2023

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page