5. Meeting Burden of Proof Denied
Case
Luis Gonzalez (Luis Gonzalez Valladeres), Applicant v. San Cristobal
Distributing, State Compensation Insurance Fund, Defendants No.
ADJ6448504 (Panel Decision)Opinion Filed November 12, 2010 which held:
“When an applicant's case is resolved by a compromise and release with no
admission of liability, a lien claimant has the burden to establish a prima facie
case of industrial injury. After a prima facie case is presented, the burden shifts
to the defendant to rebut the prima facie showing. (Pace Medical Group, inc. v.
Workers' Comp. Appeals Bd. (Valiente) (1994) 59 Cal.Comp.Cases 354, 356
([writ denied].) Contrary to the defendant's argument, it is well established that
a lien claimant can carry its burden by introducing hearsay statements in
medical records, and it is not required to prove its case by presenting an
injured worker's testimony. (Independence Indem. Co. v. IAC (Lohnes) (1935)
2 Cal.2d 397, 410 [20 IAC 311]; Lab. Code, §5708.)
12/11/2016 www.workcompliens.com 5
6.
7. Defective Notices –Resulting In
Unreasonable Offer of Care
Bruce Knight, United Parcel Service; and
Liberty Mutual Insurance Company October 10,
2006 71 Cal. Comp. Cases 1423
“The Board held that an employer or insurer's
failure to provide required notice to an employee of
rights under the MPN (medical provider network)
that results in a neglect or refusal to provide
reasonable medical treatment renders the employer
or insurer liable for reasonable medical treatment
self-procured by the employee.
8. 9767.9. Transfer of Ongoing Care
into the MPN
9767.9 (j) If the treating physician does not agree
with the employer's or insurer's determination
that the injured covered employee's medical
condition does not meet the conditions set forth
in subdivisions (e)(1) through (e)(4), the transfer
of care shall not go forward until the dispute is
resolved.
Big issue for providers, they are ignoring these notice
to transfer into MPN when all they had to do was
object to make it an none issue and continue to treat
until resolved by the WCAB
9. Date if Injury Prior to 2005
Providers normally missed this it was prevalent a
lot in years past, but will see it on old files still to
this day – Always check the date of injury if
prior to 2005 there was no MPNs then and the
defense would have the burden of proof to show
that the treatment was transferred into the MPN.
10. Facts (for this purpose all falls under SB863 there are other rules that would apply for
DOS prior to 2013 ): My date of services are 5 years past (suppose it is an 18 time to
file dispute file)-- the case in chief resolves today, no lien filed, by law I cannot file a
lien -- but, can I get a order from payment even outside medical legal services-
11. Chess is a game of strategists, so is Provider
Disputes for Workers Comp, whether it was
intended or not, that's where we are.
Chess is a game of strategists, where each piece that is moved
has a purpose and a reaction, meaning one cannot just move a
piece and not expect a response to that move. The more
purposeless a move is, the more likely you will lose that piece
or it will have no effect on the outcome, something we can
equate to demand letters and sometimes phone collections.
Purposeless acts, are the most difficult for most to let go, as in
years prior that was the game of choice, where payments could
be made regardless of what one stated in a demand letter or
over the phone.
13. The King is defined as the burden
of proof.
The King is defined as the burden of proof. The reason is, that if the King is
captured or more correctly checkmated, it ends the game, although not the
most powerful piece as it can only move one space at a time in any direction
(exception, castling ), it is the most important piece, as without it, the game is
over. In workers comp, based on the 2012 en banc "Torres" case, although a
WCAB decision, all stages and or processes involved in a Provides' dispute,
revolves around the burden of proof. From medical reports justify billing
codes, medical facts in medical reports for authorization, overcoming MPNs
and most importantly, issues at the WCAB, all are determined based on
the burden of proof, without it you lose, with it and the game is won. From the
start to the end of the game, one always protects the King, using pawns and or
any other piece to accomplish that. Thus like workers comp, from the start,
you use other processes and evidence to develop your burden of proof
14. The Queen is defined as, Medical-
Legal, WCAB and Petitions.
The Queen is defined as, Medical-Legal, WCAB and Petitions. The Queen is the most
powerful piece in the game, although many a games are won without it, one does not let it
go easily, as it can move like any piece on the board, except the knight, that can jump over
pieces. In workers comp, Medical-Legal services / disputes have a carve out, outside the
requirement of normal authorization, not subject to MPN rules and defenses, not subject to
the determination of the case-in-chief, nor subject to lien fees and time limits, making
medical-legal services the most powerful of all services in workers comp. Only a master
chessman or chess-woman, truly knows the importance of the Queen and how to
maximizes its function and power. Because of the many powerful tools in workers comp, I
added to the Queen, the WCAB, Appeals and Petitions, as the additional power tools of the
Queen. Petitions; the Director through the medical unit of the DWC is in control and the
watch dog of the UR, IBR, second review and IMR Process, of which several Petitions and
appeals can be filed, both defined and those yet to be defined. This process is to ensure the
King (burden of proof), is not compromised by fouls in the game. The Queen, also defines
the WCAB, with the massive influx of laws, a tremendous amount of case law should be
being created as to the interpretation and function of the new laws, of which is presently
lacking, thus the lack of the use of the queen.
15. The Rook or slang, castle (because it
looks like a castle),
The Rook or slang, castle (because it looks like a castle), is defined as, the
IBR process and fee schedule issues. The castle is a strong and powerful piece
and each player has two. The rook can move forward and backward or from
side to side and covers a wide range of the board. However, because of its
limited function, all players always look to see where the rook is, thus few
surprises, as it is more of a matter of fact piece. The IBR process is a powerful
tool and regardless of the $195.00 fee, it has to be used, because of the several
IBR decisions already posted, going to the IBR and knowing the results before
hand should be no surprise. However, mastering the rook is knowing how the
rook has been played in other games to achieve a wining game, i.e. sometimes
it addresses; authorization issues, PPO issues and usual and customary, making
those who read the IBR decisions a master of playing the rook, for winning
moves.
16. The Knight is defined as MPN
issues.
The Knight is defined as MPN issues. The Knight (or the horse), is an
odd piece, as it is the only piece that can leave the board and jump over
other pieces, both friend and foe alike, but is limited to its "L" shape
moves; one, two and over (left or right), each player has two. The
Knight is a strategists piece, meaning, it is normally moved into
position early in the game and waits for the game to come to it, a game
winning piece if used correctly. Like MPNs, the issues and defenses
have to be developed early in a dispute, failure to do this and wait for
the WCAB, will leave one unprepared and the victim of sanctions.
However, the Knight is essential and known for fast winning game
moves (i,e, winning in a few well chosen moves), in line with a
combination of pieces ( the expiated hearings regarding treatment
outside the MPN, or objections to transfer into an MPN).
17. The Bishop is defined as UR and
IMRs.
The Bishop is defined as UR and IMRs. For novice
players, the Bishop is always a surprise, sometimes
coming out of nowhere with game winning moves, as it
stays on its own color and moves diagonally for as many
spaces that are clear. Only the Queen can match its
moves, thus not the norm of most pieces in the game. The
IMR process is still a surprise to most and untapped, as it
is plain and simple to get treatment authorized, but only if
one understands the IMR decisions, as they are not limited
to the MTUS, a great error by many.
18. The Pawn is Defined as Billing and
EORS.
The Pawn is Defined as Billing and EORS. Each player has eight
pawns and although a pawn can only move one space at a time, taking
opponents only diagonal to it, it protects the burden of proof (King) and
if it reaches the other side, it can be exchanged for any captured piece.
EORS and correct billing is extremely important, and knowing what
these EORS actually mean determines the nature and extent of the
game, move or interpret wrong and the game is now long and drawn
out, do it right and the game is easily won.
As one can see by the above analogy, Providers disputes being resolved
by liens, is a very small part of the overall picture, with fairness
existing for Providers, but only for those that; understand, master
it and apply it correctly, everything has a purpose and has to be treated
as such.
