ADJ8396740 — California WCAB decision

What the panel ordered

Affirmed the November 10, 2020 Findings and Award and Order except amended to defer sanctions, costs, and attorney's fees issue and returned matter to WCJ for further proceedings.

Petition for reconsideration of the Findings, Award, and Order issued by the WCJ on November 20, 2020, granted to study factual and legal issues further.

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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.

Sanctions under Labor Code §5813Mixed

The WCJ found the billing reasonable based on the medical-legal report and billing, and defendant failed to provide evidence to prove unreasonableness, but the issue of sanctions, costs, and attorney's fees was deferred for further proceedings.

From the decision · page 3I. Former WCAB Rule 10451.1(f)(1)(A)(i)(I) provided that a defendant has waived all objections to a medical-legal provider's billing, except for compliance with section 4620 and 4621, if a defendant failed to serve an EOR within 60 days of a provider's properly documented billing. (Cal. Code Regs., tit. 8, former § 10451.1(f)(1)(A)(i)(I).)2 Here, as stipulated to by the parties, defendant failed to serve timely its EOR. Thus, defendant waived all objections to the billing at issue, and one of the issues that needed to be resolved was the reasonable value of cost petitioner's billing. In our January 13, 2020 Decision After Reconsideration, we remanded this issue to the trial level.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Former WCAB Rule 10451.1(f)(1)(A)(i)(I)

Defendant must serve an Explanation of Review (EOR) within 60 days of provider's billing to object to charges; failure to do so waives objections except for compliance with sections 4620 and 4621.

Defendant failed to serve timely EOR, waiving objections to billing except compliance issues.

From the decision · page 3I. Former WCAB Rule 10451.1(f)(1)(A)(i)(I) provided that a defendant has waived all objections to a medical-legal provider's billing, except for compliance with section 4620 and 4621, if a defendant failed to serve an EOR within 60 days of a provider's properly documented billing. (Cal. Code Regs., tit. 8, former § 10451.1(f)(1)(A)(i)(I).)2 Here, as stipulated to by the parties, defendant failed to serve timely its EOR. Thus, defendant waived all objections to the billing at issue, and one of the issues that needed to be resolved was the reasonable value of cost petitioner's billing. In our January 13, 2020 Decision After Reconsideration, we remanded this issue to the trial level.

Labor Code sections 4622 and 4603.3

Labor Code sections 4622 and 4603.3 require defendant to explain reasons for partial or non-payment in EOR, allowing provider to respond.

Defendant failed to raise concerns in timely EOR, missing opportunity for provider response; burden shifted to defendant to prove unreasonableness.

From the decision · page 5Sections 4622 and 4603.3 provide the parties a framework to address the objections raised by defendant. Pursuant to section 4622, defendant has sixty (60) days to issue an EOR if it decides not to pay the full amount of cost petitioner's invoice. (Lab. Code, § 4622(a).) In the EOR, defendant is required to explain the reasons why it failed to pay the invoice in full consistent with section 4603.3. (Lab. Code, § 4622(e).) Section 4603.3 provides, as relevant herein, that the EOR shall include "[t]he basis for any adjustment, change, or denial of the time or procedure billed"; "[t]he additional information required to make a decision for an incomplete itemization"; and the reason for the denial "if a denial of payment is for some reason other than a fee dispute." (Lab. Code, § 4603.3(a)(3)-(5).) A purpose of the EOR is to allow the provider an opportunity to respond to any perceived issues, deficiencies, or errors in the invoice by defendant. Had defendant raised its concerns or questions in a timely EOR, defendant would have had a response from cost petitioner.3 This response could have been submitted as evidence by defendant.

ADJ8396740 · April 22, 2021

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