ADJ3348532 · October 18, 2021

The WCJ and WCAB found that lien claimant Dr. David Silver was adequately compensated, no additional reimbursement or penalties were warranted, and no costs or sanctions should be imposed on Defendant.

From the decision · page 3I. INTRODUCTION: Applicant, [] sustained an admitted cumulative trauma injury during the periods 2/22/2001 through 2/20/2003 to her neck, hands, wrists, fibromyalgia, psoriatic arthritis, and gastric hyperacidity while working as an executive assistant for the employer. The case-in-chief settled by way of multiple stipulations with request for Award, the last being 4/23/2019. Lien claimant, Dr. David Silver, is the Petitioner herein, and filed a timely, verified Petition for Reconsideration (hereinafter, the "Petition") on 8/18/2021. Petitioner takes issue with this Court's Findings and Orders dated 8/2/2021. In that Findings, the undersigned WCJ found that lien claimant, Dr. David Silver, has been adequately compensated by Defendant for the services rendered in this case, there was no basis to award any additional reimbursement to lien claimant, there was no basis to award any penalties and interest to lien claimant, and there was no basis to impose any costs or sanctions against Defendant. This court Ordered lien claimant, Dr.

Lien claimant Dr. David Silver failed to provide evidence establishing he was the primary treating physician.

Favours Defendant prevailed

Without such evidence, he could not bill or be reimbursed as the primary treating physician, leading to denial of additional reimbursement.

From the decision · page 9E. There was no evidence submitted to establish that Dr. Silver was the primary treatingphysician: Petitioner contends that "[t]he WCJ should not have relied on the assumption by the adjuster that Dr. Silver was a secondary treating physician since this is not a fact supported by any evidence in the record" (Petition, page 11, lines 23 to 25). This Court relied upon no such assumptions. This court relied upon the evidence presented by the parties and, rather, the lack of evidence presented by lien claimant. Lien claimant did not offer any evidence establishing that Dr. Silver was ever designated as the primary treating physician. In all of the medical reporting generated by Dr. Silver and supplied to this Court, Dr. Silver never referred to himself as the primary treating physician (Lien Claimant'sExhibits 4 through 23). In all of the medical reporting generated by Dr. Silver and supplied to this Court, Dr. Silver continually refers to the Applicant as being a patient of Dr. Robert Hunt and the Applicant having been referred by Dr. Hunt to Dr. Silver (Lien Claimant's Exhibits 4 through 23). None of the medical reporting generated by Dr. Silver and supplied to this Court establish that Dr. Silver was ever the primary treating physician in this case.

Credible and unrebutted expert testimony by Yollete Capalla that lien claimant was adequately compensated and overpaid according to the official medical fee schedule.

Favours Defendant prevailed

This testimony was relied upon to deny additional reimbursement and penalties.

Confusing and contradictory payment ledgers offered by lien claimant failed to rebut expert testimony.

Favours Defendant prevailed

This undermined lien claimant's claim for additional reimbursement.

From the decision · page 7payment ledgers as evidence (Lien Claimant's Exhibits 1, 2, and 3). Petitioner, now, only urges this court to rely upon Lien Claimant's Exhibit 1. That document is confusing, at best. In addition to the issues identified in the Opinion on Decision (Opinion on Decision, dated 8/2/2021, page 1, second paragraph), Lien Claimant's Exhibit 1 seemsdesigned to make it as difficult as possible to figure out the charges alleged and payments received and is so unfinished that it has to be totaled by hand. It fails to lists dates of services 9/24/2004 and7/30/2004 with payments made by Defendant for those dates (Defendant's Exhibit B) and fails to include charges related to dates of service 5/11/2004 (Lien Claimant's Exhibit 17) and 5/3/2004 (Lien Claimant's Exhibit 20). Lien claimant offered no evidence to explain any of these discrepancies, or to explain the basis for any additional reimbursement for the pending lien claim of lien claimant.

Defendant's failure to appear at lien conference was due to lack of notice, not bad faith.

Favours Defendant prevailed

No sanctions or costs were imposed on Defendant for this non-appearance.

From the decision · page 13Pursuant to Defendant's Answer dated 4/8/2016, Defense counsel simply did not get notice of the hearing. This court will not impose sanctions and costs against any party who did not get notice of a hearing, and, therefore, did not appear for a hearing. Such non-appearance is justified, therefore.

Lien claimant Dr. David Silver contended he was the primary treating physician and sought additional reimbursement for his services, but failed to provide evidence establishing primary treating physician status or to rebut expert bill review testimony.

The court found no evidence that Dr. Silver was the primary treating physician and credited the expert bill review witness's testimony that Dr. Silver was adequately compensated and overpaid according to the official medical fee schedule.

From the decision · page 9E. There was no evidence submitted to establish that Dr. Silver was the primary treatingphysician: Petitioner contends that "[t]he WCJ should not have relied on the assumption by the adjuster that Dr. Silver was a secondary treating physician since this is not a fact supported by any evidence in the record" (Petition, page 11, lines 23 to 25). This Court relied upon no such assumptions. This court relied upon the evidence presented by the parties and, rather, the lack of evidence presented by lien claimant. Lien claimant did not offer any evidence establishing that Dr. Silver was ever designated as the primary treating physician. In all of the medical reporting generated by Dr. Silver and supplied to this Court, Dr. Silver never referred to himself as the primary treating physician (Lien Claimant'sExhibits 4 through 23). In all of the medical reporting generated by Dr. Silver and supplied to this Court, Dr. Silver continually refers to the Applicant as being a patient of Dr. Robert Hunt and the Applicant having been referred by Dr. Hunt to Dr. Silver (Lien Claimant's Exhibits 4 through 23). None of the medical reporting generated by Dr. Silver and supplied to this Court establish that Dr. Silver was ever the primary treating physician in this case.

Testified as an expert bill review witness that lien claimant Dr. David Silver was adequately compensated and overpaid according to the official medical fee schedule, and properly reviewed and reduced charges as a secondary treating physician.

Her credible and unrebutted testimony was relied upon by the court to find no additional reimbursement or penalties were warranted.

From the decision · page 7In addition to the above, and as indicated by the testimony of Defendant's bill review expert, Yollete Capalla, even taking into account the payments listed by lien claimant's own payment ledger, lien claimant has been overpaid according to the official medical fee schedule (Minutes of Hearing/Summary of Evidence, dated 7/15/2021, page 9, lines 24 to 25, and page 11, lines 1 to 6).

Labor Code §5813

Labor Code §5813 regarding sanctions for bad-faith actions or tactics

No evidence of bad-faith or frivolous tactics by Defendant to justify sanctions.

From the decision · page 13Lien claimant, David Silver, MD, alleges, in their Petition dated 3/18/2016, that costs and sanctions should be imposed against Defendant in favor of lien claimant pursuant to Labor Code § 5813 for Defense counsel's failure to appear at a lien conference on 1/13/2016. There is no indication that Defense counsel's failure to appear was in any way "bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay" pursuant to Labor Code § 5813.

Insurance Code §1063.2(h)

Insurance Code §1063.2(h) regarding interest owed prior to carrier liquidation

No interest owed by Defendant prior to liquidation of insolvent carrier.

From the decision · page 13Pursuant to Insurance Code § 1063.2(h), no interest is owed by this Defendant, CIGA, prior to the liquidation of the now insolvent carrier. As there is no further reimbursement currently owing to lien claimant, David Silver, MD, no interest can be Awarded.

CCR §10510(d)

CCR §10510(d) (formerly CCR §10450(e)) regarding petition requirements for costs and sanctions

Petition for Costs and Sanctions failed to comply with this regulation and was properly denied.

From the decision · page 13In addition to the above, lien claimant, David Silver, MD's, Petition dated 3/18/2016 fails to comply with CCR § 10510(d) (formerly CCR § 10450(e)). The Petition dated 3/18/2016 is denied, therefore, based upon CCR § 10510(d).

Labor Code §4603.2(b)(2)

Labor Code §4603.2(b)(2) regarding timely payment of medical liens

The court found that even with penalties for late payments under this code, lien claimant was still overpaid.

From the decision · page 12The only evidence submitted to this court indicating when the billing statements and supporting documentation were submitted to Defendants to trigger the time periods contained in Labor Code § 4603.2(b)(2) were contained in Lien Claimant's Exhibits 15, 12, 10, and 6 for each of those respective dates of service. The payments made for those dates of service do appear to be late, as indicated in the billing statement contained in Lien Claimant's Exhibit 1. Even with the addition of a penalty for those dates of service pursuant to Labor Code § 4603.2(b)(2), lien claimant, David Silver, MD, has still been overpaid according to the payment listing

Confusing and contradictory payment ledgers offered by lien claimant Dr. David Silver

From the decision · page 7payment ledgers as evidence (Lien Claimant's Exhibits 1, 2, and 3). Petitioner, now, only urges this court to rely upon Lien Claimant's Exhibit 1. That document is confusing, at best. In addition to the issues identified in the Opinion on Decision (Opinion on Decision, dated 8/2/2021, page 1, second paragraph), Lien Claimant's Exhibit 1 seemsdesigned to make it as difficult as possible to figure out the charges alleged and payments received and is so unfinished that it has to be totaled by hand. It fails to lists dates of services 9/24/2004 and7/30/2004 with payments made by Defendant for those dates (Defendant's Exhibit B) and fails to include charges related to dates of service 5/11/2004 (Lien Claimant's Exhibit 17) and 5/3/2004 (Lien Claimant's Exhibit 20). Lien claimant offered no evidence to explain any of these discrepancies, or to explain the basis for any additional reimbursement for the pending lien claim of lien claimant.