What the panel ordered
Petition for reconsideration granted; WCJ's Findings and Order affirmed as amended to find subpoenas and service request valid, WCAB jurisdiction to determine payment, and cost petitioner entitled to payment. Amount of payment deferred.
Petition for reconsideration of WCJ's Findings and Order dated November 7, 2024, regarding validity of subpoenas, jurisdiction, and payment of medical-legal costs.
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.
Cost petitioner met burden under Labor Code sections 4620 and 4621 for medical-legal costs; subpoenas and service request were valid; WCAB has jurisdiction to determine payment; defendant waived objections by failing to timely object or provide EOR.
From the decision · page 9(Cal. Code Regs., tit. 8, § 9982(d)(1).) Although the above statute and regulation does not allow for payment of a subpoena duces tecum served within 30 days of a request for records, it does not state that a request for records must be requested before they can be subpoenaed. In other words, there is no mandate or requirement that an applicant or their attorney must make a request for records from the employer or the insurer prior to requesting that a subpoena issue for records. Thus, a failure to make such a request is immaterial. Accordingly, we grant the Petition, amend the F&O to find that the subpoena to Millan's Ranchito and the service request to WCIRB are valid (Finding of Fact 4), to find that the WCAB has jurisdiction to the issue of the amount of payment owed (Finding of Fact 7), to order that cost petitioner is entitled to payment (Order), and otherwise affirm the F&O. For the foregoing reasons, IT IS ORDERED that cost petitioner's Petition for Reconsideration of the of November 7, 2024 Findings and Order is GRANTED. IT IS FURTHER ORDERED that as the Decision After Reconsideration of the Workers' Compensation Appeals Board, the November 7, 2024 Findings and Order is AFFIRMED except that it is AMENDED as provided below.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant failed to timely object or provide an explanation of review (EOR) to the medical-legal billing, resulting in waiver of objections except for compliance with sections 4620 and 4621.
Favours Applicant prevailed
This failure resulted in defendant's liability for the reasonable value of the medical-legal services and penalties.
From the decision · page 8submitted no evidence of an objection to the invoice, and we conclude that defendant is liable for
Applicant's attorney made a written demand for records on December 20, 2017, but defendant's first response was not until May 1, 2018.
Favours Applicant prevailed
This established that defendant did not comply with the 30-day response requirement, supporting cost petitioner's entitlement to payment.
From the decision · page 8The operative date is the date upon Applicant's Counsel made a demand on the Defendant Employer/Insurance Company for records. Under CCR8 § 9982(d)(1) the demand letter from Edward Figaredo's office was sent on, or about, December 20, 2017, which started the 30-day clock. Exhibit 17. Defendant's response was due on, or about, January 19, 2018. The first indication that there was a response was May 1, 2018. Exhibit D and Testimony of Angela Pulido, Senior Adjuster, MOH/Summary October 17, 2024, pg. 3, ln. 13-17. Thus, there was no timely compliance with Applicant's demand.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code §§ 4620, 4621, 4622; Colamonico v. Secure Transport (2019) 84 Cal.Comp.Cases 1059
A lien claimant/cost petitioner must prove: (1) a contested claim existed at the time expenses were incurred; (2) expenses were incurred for the purpose of proving or disproving the contested claim; (3) expenses were reasonable and necessary at the time incurred.
Applied to determine that cost petitioner was entitled to payment for medical-legal costs as the claim was contested and expenses were reasonable and necessary.
From the decision · page 5II. A lien claimant/cost petitioner holds the burden of proof to establish all elements necessary to establish its entitlement to payment for a medical-legal expense. (See Lab. Code, § 3205.5, 5705; Torres v. AJC Sandblasting (2012) 77 Cal.Comp.Cases 1113, 1115 [2012 Cal. Wrk. Comp. LEXIS 160] (Appeals Board en banc).) Thus, a lien claimant/cost petitioner is required to establish that: 1) a contested claim existed at the time the expenses were incurred; 2) the expenses were incurred for the purpose of proving or disproving the contested claim; and 3) the expenses were reasonable and necessary at the time they were incurred. (Lab. Code, § 4620, 4621, 4622(f); Colamonico v. Secure Transport, (2019) 84 Cal.Comp.Cases 1059 (Appeals Board en banc).) An Application was filed by applicant's attorney on January 17, 2018, alleging that liability for all benefits was disputed.
Cal. Code Regs., tit. 8, § 10786(e); Colamonico v. Secure Transport (2019) 84 Cal.Comp.Cases 1059
Defendant must object to medical-legal billing with an EOR within 60 days or waive all objections except compliance with sections 4620 and 4621.
Applied to find defendant waived objections to medical-legal billing by failing to timely object or provide EOR.
From the decision · page 6A defendant has 60 days to review and analyze a medical-legal bill or invoice. (Lab. Code, § 4622(a)(1).) A defendant has two options within this 60-day window: It may pay the bill or invoice in full or pay less than the full amount. Should a defendant decide to pay less than the full amount within the 60-day window, it may still avoid the imposition of a penalty and interest by including an explanation of review (EOR) with its payment. Section 4622 requires that a defendant object to the invoice or billing with an EOR as described in section 4603.3. (Lab. Code, § 4622(a)(1), (e)(1); 4603.3.) Objecting to an invoice with an EOR within the 60-day window is defendant's burden. If a defendant does not pay a proper medical-legal invoice in full or fails to provide an EOR within the 60-day window, then a defendant has waived all objections, other than compliance with sections 4620 and 4621, to the medical-legal provider's billing. (Cal. Code Regs., tit. 8, § 10786(e); see Colamonico, supra.) A defendant is then liable for the reasonable value of the medical-legal services as well as a 10 percent penalty and 7 percent per annum interest.
What proof carried it
The evidence the panel weighed, by kind.
Defendant failed to timely object or provide an explanation of review (EOR) to the medical-legal billing, resulting in waiver of objections except for compliance with sections 4620 and 4621.
From the decision · page 8submitted no evidence of an objection to the invoice, and we conclude that defendant is liable for
Applicant's attorney made a written demand for records on December 20, 2017, starting the 30-day clock for response, but defendant's first response was not until May 1, 2018.
From the decision · page 8The operative date is the date upon Applicant's Counsel made a demand on the Defendant Employer/Insurance Company for records. Under CCR8 § 9982(d)(1) the demand letter from Edward Figaredo's office was sent on, or about, December 20, 2017, which started the 30-day clock. Exhibit 17. Defendant's response was due on, or about, January 19, 2018. The first indication that there was a response was May 1, 2018. Exhibit D and Testimony of Angela Pulido, Senior Adjuster, MOH/Summary October 17, 2024, pg. 3, ln. 13-17. Thus, there was no timely compliance with Applicant's demand.
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