The WCAB has held en banc in Colamonico v. Secure Transportation that it is the lien claimant/provider’s (in this case a photocopy service) burden to prove that its services were both reasonable and necessary and that the defendant’s failure to cite reasonableness or necessity in its objection to a med-legal bill doesn’t act as waiver of those defenses at the time of the lien conference. The court cited to the Torres decision in support of it’s conclusion. The WCAB said the WCJ’s finding that the defendant waives objections under 4620 and 4621 by failing to issue an Explanation Of Review [which is the objection] in response to bills from the copy service is inconsistent with Labor Code 4622. The WCAB also pointed out that the WCJ’s finding is also not consistent with CCR10451.1, which states that a defendant that fails to respond to a medical-legal bill is deemed to have waived all objections “other than compliance with Labor Code Sections 4620 and 4621.”
Therefore, it is the provider/lien claimant’s burden to prove:
1) a contested claim existed at the time the expenses were incurred;
2) the expenses were incurred for the purpose of proving or disproving the contested claim; and
3) the expenses were reasonable and necessary at the time they were incurred.
“Once a lien claimant has established these three elements, it then may proceed to address the reasonable value of its services under Section 4622. In sum, Sections 4620 and 4621 pertain to a medical-legal provider’s service, and Section 4622 pertains to the reasonable value of the service.” The WCAB has remanded the dispute to the WCJ to develop the record on whether the photocopy services were reasonably and necessarily incurred.
WHAT THIS MEANS FOR YOU: The WCAB acknowledged that a defendant can challenge the reasonableness or necessity of a medical-legal expense for the first time during a lien conference and without first raising such objections in an EOR. At the same time, the decision notes that the litigation strategy can result in payers who owe interest going back to the date it received a bill. Additionally, the WCAB stated “if a defendant failed to communicate these objections to a lien claimant before the lien conference, the WCJ has the discretion to consider whether it is engaging in bad-faith tactics to delay the resolution of the lien,” the board said. “Any bad-faith action or tactic may be the basis for potential sanctions pursuant to Section 5813.” Therefore, best practices suggest that reasonableness and/or necessity are cited in any EOR if applicable.