ADJ11404325 · August 3, 2022

Defendant failed to prove existence of PPO contract; lien claimant entitled to stipulated amount less credit for sums paid; penalties and interest adjusted accordingly.

From the decision · page 2Additionally, as the party with the affirmative of the issue, it is defendant that carries the burden of proof to establish the existence and applicability of the alleged PPO contract to this dispute. (Lab. Code § 5705, "[t]he burden of proof rests upon the party or lien claimant holding the affirmative of the issue.") Here, defendant relied on an alleged PPO contract to reduce the amounts reimbursed to lien claimant. (Ex. A, Review Analysis, dated September 29, 2018; Ex. B, Explanation of Bill Review, dated November 9, 2018.) It was thus defendant's affirmative burden to establish the existence of a valid and enforceable PPO contract governing its reimbursement arrangement with lien claimant.

No PPO contract document was produced or identified despite opportunity and time to do so.

Favours Applicant prevailed

This failure meant defendant did not meet burden of proof to reduce lien amount under PPO contract.

From the decision · page 6This is one of those rare Petitions for Reconsideration where the jurisdictional language at the beginning of the Petition citing Labor Code § 5903 may well prove dispositive. In the Petition, defendant cites this case as being one where the undersigned allegedly acted in excess of his authority under Labor Code § 5903 (a); where the evidence does not justify the findings of fact under Labor Code § 5903(b) and where the findings of fact do not support the order, decision or award under Labor Code § 5903(e.) However, petitioner does not cite Labor Code § 5903(d) which may allow for reconsideration where "the petitioner has discovered new evidence material to him or her, which he or she could not, with reasonable diligence, have discovered and produced at hearing." Now it may be that such evidence was not newly discovered or that reasonable diligence may have been wanting. Yet, it is important to consider no specific document purporting to be a PPO contract was identified in the Petition for Reconsideration. In the days that followed the trial, since 19 April 2022, there has been no production of such a document to the trial judge and no reference to it such that the judge would know that such a document exists.

Favours Applicant prevailed

Labor Code 5705

Burden of proof rests on party holding affirmative of the issue (Labor Code 5705).

Defendant had burden to prove existence and applicability of PPO contract to reduce lien amount.

From the decision · page 2Additionally, as the party with the affirmative of the issue, it is defendant that carries the burden of proof to establish the existence and applicability of the alleged PPO contract to this dispute. (Lab. Code § 5705, "[t]he burden of proof rests upon the party or lien claimant holding the affirmative of the issue.") Here, defendant relied on an alleged PPO contract to reduce the amounts reimbursed to lien claimant. (Ex. A, Review Analysis, dated September 29, 2018; Ex. B, Explanation of Bill Review, dated November 9, 2018.) It was thus defendant's affirmative burden to establish the existence of a valid and enforceable PPO contract governing its reimbursement arrangement with lien claimant.

Labor Code 5304

Existence of PPO contract must be proven to apply Labor Code 5304 benefits.

Defendant failed to produce PPO contract document; thus failed burden of proof.

From the decision · page 6Now the other aspect of petitioner's argument is that it misstates the burden of proof. The existence of a PPO contract is a defense, not an element of lien claimant's case. If defendant seeks to invoke Labor Code § 5304, defendant must prove the existence of the PPO contract in order to obtain the benefits of that contract. Once the existence of the PPO contract is established, the

Labor Code 5903

Reconsideration may be granted under Labor Code 5903 for new evidence or error.

Petition for Reconsideration granted to amend credit and penalties; otherwise original decision affirmed.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's report, which we adopt and incorporate, we will grant reconsideration, amend the WCJ's decision as recommended in the report, and otherwise affirm the decision of May 18, 2022.

Defendant did not produce a PPO contract document despite opportunity; no evidence of its existence was found.

From the decision · page 6This is one of those rare Petitions for Reconsideration where the jurisdictional language at the beginning of the Petition citing Labor Code § 5903 may well prove dispositive. In the Petition, defendant cites this case as being one where the undersigned allegedly acted in excess of his authority under Labor Code § 5903 (a); where the evidence does not justify the findings of fact under Labor Code § 5903(b) and where the findings of fact do not support the order, decision or award under Labor Code § 5903(e.) However, petitioner does not cite Labor Code § 5903(d) which may allow for reconsideration where "the petitioner has discovered new evidence material to him or her, which he or she could not, with reasonable diligence, have discovered and produced at hearing." Now it may be that such evidence was not newly discovered or that reasonable diligence may have been wanting. Yet, it is important to consider no specific document purporting to be a PPO contract was identified in the Petition for Reconsideration. In the days that followed the trial, since 19 April 2022, there has been no production of such a document to the trial judge and no reference to it such that the judge would know that such a document exists.