What the panel ordered
WCAB rescinded the WCJ's Findings and Order and substituted new Findings; defendant liable for penalties and interest under Labor Code section 4622(a)(1); issue of attorney's fees and costs deferred to WCJp. 8
Petition for Reconsideration granted to study factual and legal issues; WCJ Findings and Order rescinded and new Findings substituted by WCAB panel decision after reconsideration
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.
The WCAB found that Labor Code section 5307.9 does not apply, defendant failed to issue Explanations of Benefits or payment within 60 days, cost petitioner met burden under sections 4620, 4621, and 4622, and defendant is liable for penalties and interest under section 4622(a)(1).
From the decision · page 8pursuant to section 4622(a)(1), defendant is automatically liable for payment of penalties and interest. Moreover, 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 to the medical-legal provider’s billing except compliance with sections 4620 and 4621. (Cal. Code Regs., tit. 8, § 10786(e); see Colamonico, supra.) Consequently, even if defendant here had successfully showed that section 5307.9 applied, it had already waived this defense when it failed to comply with section 4622(a)(1). Accordingly, we rescind the F&O and substitute new Findings that find that section 5307.9 does not apply in this matter; defendant failed to issue EOBs or any payment to cost petitioner within 60 days; cost petitioner met its burden under sections 4620, 4621, and 4622; and defendant is liable for payment of penalties and interest under section 4622(a)(1). We defer the issue of attorney’s fees and costs and return the matter to the WCJ so that the WCJ may consider the issue in the first instance. For the foregoing reasons, IT IS ORDERED as the Decision After Reconsideration of the Workers’ Compensation Appeals Board that the January 20, 2022 Findings of Fact is RESCINDED and the following is SUBSTITUTED therefor:
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant failed to issue Explanations of Benefits or any payment to cost petitioner within 60 days after receiving medical-legal bills
Favours Applicant prevailed
This failure triggered automatic liability for penalties and interest under Labor Code section 4622(a)(1)
From the decision · page 82. Defendant failed to issue Explanations of Benefits or any payment to cost petitioner within 60 days.
Cost petitioner met its burden under Labor Code sections 4620, 4621, and 4622 to establish entitlement to payment for medical-legal expenses
Favours Applicant prevailed
Established that the expenses were reasonable, necessary, and incurred for proving or disproving a contested claim
From the decision · page 7Here, the discovery by applicant may have led to relevant or potentially relevant materials and/or information to help with narrowing the issues in their case. Therefore, the expenses were incurred for the purpose of proving or disproving a contested claim; and the expenses were reasonable and necessary at the time they were incurred. Thus, cost petitioner met its burden under sections 4620 and 4621. A 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.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code
Labor Code section 5307.9
Determined that section 5307.9 does not bar recovery when no prior request for records was made before subpoena issuance
From the decision · page 5We disagree with the WCJ. While the above statute and regulation do not allow for payment of a subpoena served within 30 days of a request for records, they do 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 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, and section 5307.9 does not apply. A party’s ability to subpoena records is governed by the Labor Code and the WCAB Rules of Practice and Procedure which generally provide “adequate tools to the practitioner for liberal discovery.” (Allison v. Workers’ Comp. Appeals Bd.
Labor Code
Labor Code sections 4620, 4621, and 4622
Framework for reimbursement of medical-legal expenses and penalties for late payment
From the decision · page 6A 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, 5705.5; Torres v. AJC Sandblasting (2012) 77 Cal.Comp.Cases 1113, 1115 (Appeals Board en banc).) As we explained in our en banc decision in Colamonico v. Secure Transportation (2019) 84 Cal.Comp.Cases 1059 (Appeals Board en banc), section 4622 provides the framework for reimbursement of medical-legal expenses. Subsection (f) of the statute, however, specifically states that “[t]his section is not applicable unless there has been compliance with Sections 4620 and 4621.” (Lab. Code, § 4622(f).) WCAB Rule 10786 states in relevant part that: *** (b) If a defendant has failed to file and serve a petition for determination of medical legal expenses and a Declaration of Readiness in compliance with subdivision (a), a medical-legal provider may file and serve a petition for reimbursement of medical-legal expenses and a Declaration of Readiness to Proceed. Upon filing of a petition for reimbursement of medical-legal expenses and a Declaration of Readiness to Proceed, the medical-legal provider shall be added to the official address record.
What proof carried it
The evidence the panel weighed, by kind.
Defendant failed to issue Explanations of Benefits or any payment within 60 days after receiving medical-legal bills
From the decision · page 82. Defendant failed to issue Explanations of Benefits or any payment to cost petitioner within 60 days.
Cost petitioner met its burden under Labor Code sections 4620, 4621, and 4622 to establish entitlement to payment for medical-legal expenses
From the decision · page 7Here, the discovery by applicant may have led to relevant or potentially relevant materials and/or information to help with narrowing the issues in their case. Therefore, the expenses were incurred for the purpose of proving or disproving a contested claim; and the expenses were reasonable and necessary at the time they were incurred. Thus, cost petitioner met its burden under sections 4620 and 4621. A 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.
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About this page
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