Be Prepared or Go Broke With Frivolity

Slowly, but surely, vendors in the California workers' compensation system will figure out that it's not business as usual and that they will actually need to support claims for payment or reimbursement and not just expect to receive a check at the end of a claim.

In litigation this is called evidence.

Presenting a bill without any further documentation or testimony supporting a claim that the services represented on the bill were for an injured worker's industrial claim and that such services were a) reasonable, b) necessary, c) within or excepted from guidelines and d) within or excepted from billing standards means only one thing now: you lose.

Actually, it may mean a second thing as well: please pay for wasting everyone's time and money.

The case: Lozano v. In-N-Out, No. ADJ3570671.

The facts: Admitted industrial injury to low back and psyche with a date of injury 8/04/2003. Case in chief is resolved for an undisclosed amount by Compromise and Release on 3/09/2006.

Thereafter, vendor/lien claimant proceeds to trial on the lien of Farwest Diagnostics Pain Management Psychiatric Group in the sum of $2,400 for three dates of service. Services rendered are not further described in the written opinion by Anaheim Workers' Compensation Judge Katherine Howells.

But Howells writes that Farwest did nothing other than present bills at trial: "In regard to the lien iteslef, no testimonial or documentary evidence was filed other than the billing of Farwest Diagnostics.... There is nothing to support the lien or the services reportedly provided."

As one would expect, Farwest lost and isn't getting paid.

But, as an example of the new culture in California work comp, Farwest gets to pay for the privilege of wasting everyone's time and money:

"With due consideration of Lien Claimant's failure to offer evidence in support of its charges, it is found that proceeding to trial was both frivolous and in bad faith within the provisions of Labor Code section 5813. Therefore, notice is herby given that a joint and several Order imposing sanctions of $500.00 and assessing fees and costs up to $500.00 against Farwest Diagnostics Pain Management Psychiatric Group, and Pinnacle Lien Services and its representative Shawn Barretto, will issue..."

I can't imagine that Farwest and its jointly liable friends and entities are going to be able to present sufficient evidence against this order either to the WCJ or on reconsideration/removal if they can't even support their claim for reimbursement in the first place.

Unfortunately there will likely be many more such cases to follow - it takes time to teach an old dog new tricks.

But I support actions like Judge Howells took - it's about time. I believe that if WCJs had regularly taken lien claimants to task for shoddy legal work and had regularly dismissed liens and sanctioned their proponents that we would not have had the draconian lien provisions of SB 863.

In the meantime, lien claimants wake up! Filing fees and activation fees are not your enemy. YOU are your own enemy.

Get educated. Learn procedure and rules of evidence. Be prepared.

Or go broke with your frivolity.