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Medical Liens: How the Lien Attorney
Can Help You Protect Your Client
and
Yourself
By Robert A. Feinglass, Esq.
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It is
absolutely essential that some care, particularly timely care,
be provided on a lien basis. “It is
of more than theoretical importance in the workers’ compensation
system that medical providers be paid promptly and treated fairly
for without them the entire benefit system would fail.” (American
Psychometrics Consultants, Inc. v. WCAB) (Hurtado) (1995) 36 Cal.App.4th 1626, 1640, 60 CCC
559, 569.
This necessary medical care requires providers willing
to wait to be paid and insurers that advance the costs of care
and file liens for reimbursement. Sometimes a lien claimant’s
attorney can make valuable contributions to the applicants’ attorney’s
(AA) case.
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Sometimes a lien claimant’s
attorney can make valuable contributions to the applicants’ attorney’s
case.
See the author in action in
My
Favorite Case. |
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I. Two situations in which a lien
claim can come back to bite the applicant and the AA.
First, ordinarily
AAs do not need to worry about medical lien claims. If your client
is a Medi-Cal recipient for care alleged to be work-related, however,
you as his or her attorney have a legal duty to notify Medi-Cal.
Failure to fulfill this responsibility can result in personal liability
on the part of the attorney for the amount of the Medi-Cal lien.
I do not know the law on Medicare, but I would assume that it is
similar.
Another situation requiring care involves disputed liability cases. A bill
for services rendered (as distinct from a claim by a medical payer for reimbursement
of sums advanced) does survive a take-nothing. The qualified provider has
a normal right to a fee for services rendered. The fee may be governed by
the Labor Code if there is an industrial injury, but if not, the applicant/patient
still has to pay the doctor bill. A settlement that does not finally resolve
direct provider liens needs “hold harmless” language or “pay,
adjust or litigate” both the bill and lien regarding the claim of the
direct provider. Exceptions include when the provider is not properly credentialed
or in an industrial case the provider has failed to file a lien claim within
the statutory time frame, or when the treatment is provided outside the MPN
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| Ordinarily AAs do not need to
worry about medical lien claims, but they do need to include CYA
language in the C&R. |
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II. In certain cases, usually those
involving large medical costs, a lien claimant can obtain independent
discovery, including its own separate medical-legal evaluation.
In
a case of sufficient size, a lien claimant can provide crucial AOE/COE
support, and possibly PD support. I’ve had a number of cases
in which I represented a hospital or a payer in a case involving
substantial dollars for inpatient care, in which as lien claimants
entitled to prove up a right to payment or reimbursement, we have
obtained what turned out to be the decisive med-legal evidence. I
recall one such case in which Dr. Panting was the AME, and issued
a nonindustrial cardiovascular report. In deposition set by the AA,
in my turn I was able to establish that Dr. Panting had entirely
omitted to take a history of job stressors before issuing his opinion.
Because he was an AME, applicant was unable to obtain a rebuttal
report. On behalf of the lien claimant, I obtained permission from
my client to spend the money to seek our own independent medical-legal
evaluation. The report came back industrial. I believe applicant’s
case settled for $50,000.
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A
lien claimant can provide crucial AOE/COE support, and possibly
PD support.
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| When a case is large enough to justify
the investment by the lien claimant, and the facts are amenable,
a lien claimant may obtain a decisive report (which it must pay for,
win or lose). This is the more likely because the lien claimant’s
report will usually follow a situation in which there is a yes and
a no, or an inadequate or adverse report by a PQME or AME. It is
good for the AA to bear in mind that the lien claimant is not bound
by the PQME/AME system. The lien claimant has a constitutional due
process right to conduct discovery, and to bring evidence justifying
its right to be paid. We can help. |
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The lien claimant has a constitutional
due process right to conduct discovery, and to bring evidence justifying
its right to be paid.
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By the same token, as a proactive
lien claimant I have also been able to assist AAs in other ways.
Defendants tend to bully lien claimants. When they can’t, sometimes
the lien claimant can bully the defendant. As a lien claimant I have
successfully moved to exclude documents offered into evidence by
defendant but not served on lien claimant, where the documents bear
on lien claimant’s right to recover, notably on the issue of
AOE/COE. It is common for the defendant to ignore the lien claimant
to and through the MSC. In cases where I am involved, this is a mistake.
The WCJ cannot easily save the careless defendant in those cases;
continuances solely to allow a non-serving party to rectify its error
are expressly disapproved in Co. of Sacramento v. WCAB (Estrada)
(1999) 64 CCC 26.
In depositions and at trial, as a lien claimant I have helped to
strengthen favorable testimony and to attack unfavorable testimony.
In addition, the proactive lien claimant will brief controversies
alongside the AA where the issues bear on the lien claimant’s
right to an award. This includes trial briefs, recons and answers,
and appellate work.
Lien claimants can also make the AA (and defendant)
aware of penalty situations with respect to unreasonable delay. At
the present time, lien claimants are barred from seeking direct recourse
(i.e., filing a DOR) until the case-in-chief is “resolved.” LC § 4903.6
(b). This provision is obviously intended to protect applicants who
should not be rushed into hearings before their discovery is complete.
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The proactive lien claimant’s
attorney can help the applicant’s attorney with briefs for
trials, recons and appeals.
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There is, however, no statutory definition
for the term “resolved.” What this has meant is that
even when liability for medical costs is clear, defendants will use
this provision to stall. A lien claimant can argue that where the
threshold issue of industrial liability is “resolved,” the “case-in-chief” is
arguably resolved and there is no reasonable basis for continued
stalling by the defendant under this statute even though eventual
issues such as PD or apportionment may remain unresolved. A lien
claimant’s attempt to take action on an obvious lien in coordination
with the AA by filing a DOR, accompanied by a letter from the AA
advising that applicant has no objection to the lien claimant’s
proceeding, can be a means to put pressure on a recalcitrant defendant,
including raising penalty issues and sanctions for tactics that are
frivolous and solely intended to cause unnecessary delay. Even if
the request is denied, the lien claimant may be able to put its (and
applicant’s) outlook before a WCJ. In a situation in which
payment of liens is simply tabled without regards to the merits solely
based on 4906(b), penalties, payable to the applicant, may be in
order.
In summary, and within the context of the specific, concrete legal
situation, two heads can be better than one.
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In a situation in which payment
of liens is simply tabled without regards to the merits solely based
on 4906(b), penalties, payable to the applicant, may be in order.
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III. Protecting your client in settlement
In settling cases by C&R, it is always important to make sure
if possible that the claims of lien will not fall back on your client.
The “hold harmless” or “pay, adjust, or litigate” provisions
may not be enough to protect your client. I encourage every AA to
include, particularly with respect to direct provider liens, language
that defendant will “pay, adjust, or litigate the lien
and bill of….” That way, the bill is covered even if there
is subsequent litigation between the defendant and the lien claimant
resulting in a take-nothing on the lien. The bill will still be the
responsibility of the defendant.
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The “hold harmless” or “pay,
adjust, or litigate” provisions may not be enough to protect
your client.
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This is important because to earn
a fee on a lien award under §4903.2, it is not sufficient to
prove up liability for the lien: There must actually be both a lien
and an award. Usually proving up liability is what the AA must do
for his own client and is not, in itself, sufficient to get a fee
on the lien. Then there are five conditions: (1) the lien claimant
must have notice and opportunity to be heard at “all hearings
following the filing of the lien”; (2) lien claimant must receive
a notice of intent to award the AA a fee. This is consistent with
due process, giving the lien claimant an opportunity to object; (3)
lien claimant must have had the opportunity to participate in proceedings
and have failed to take advantage of that opportunity; (4) there
must have been “bona fide issues respecting compensability,
or respecting allowability of the lien, such that services of an
attorney were reasonably required;” and (5) The case must not have
been resolved by C&R. In addition, the percentage recovery
on the lien may not exceed the percentage recovery of the fee against
the applicant.
As you can see, the road to an AA fee on a lien award
is not an easy one.
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To earn a fee on a lien award
under §4903.2, it is not sufficient to prove up liability for
the lien.
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In the event that you are aware of
a potential lien that has not been filed by the provider or payer,
an easier way to get a fee on a lien not previously filed is to refer
it to me. If I am retained to represent the lien claimant I share
30% of my fee with the referring attorney. Check out my website,
www.bobfeinglass.com, for further information.
If you have questions
about specific situations, feel free to contact me directly. I can
be reached at (415) 218-0672 or by email at bobfeinglass@comcast.net.
Comments and criticisms are welcome!
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An easier way to get a fee on
a lien not previously filed is to refer it to an attorney specializing
in medical liens.
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Robert Allen Feinglass has been practicing law since 1986 and
workers’ comp lien law since 1988.
Law Office of Robert Feinglass
130 Frederick Street, #101
San Francisco, CA 94117
Tel: (415) 218-0672
Fax:
(415) 861-5306
Email: bobfeinglass@comcast.net
Web: www.bobfeinglass.com
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