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MEDICAL-LEGAL EXPENSES

Labor Code §4620(a) defines the term: “a medical-legal expense means any costs and expenses incurred by or on behalf of any party, the administrative director, or the board, which expenses may include Xrays, laboratory fees, other diagnostic tests, medical reports, medical records, medical testimony, and, as needed, interpreter’s fees... for the purpose of proving or disproving a contested claim.”

Defined further in 8 CCR §9793(h), “Medical-legal expense” means any costs or expenses incurred by or on behalf of any party or parties, the administrative director, or the appeals board for X-rays, laboratory fees, other diagnostic tests, medical reports, medical records, medical testimony, and as needed, interpreter's fees, for the purpose of proving or disproving a contested claim. The cost of medical evaluations, diagnostic tests, and interpreters is not a medical-legal expense unless it is incidental to the production of a comprehensive medical-legal evaluation report, follow-up medical-legal evaluation report, or a supplemental medical-legal evaluation report and all of the following conditions exist:

(1) The report is prepared by a physician, as defined in Section 3209.3 of the Labor Code.

(2) The report is obtained at the request of a party or parties, the administrative director, or the appeals board for the purpose of proving or disproving a contested claim and addresses the disputed medical fact or facts specified by the party, or parties or other person who requested the comprehensive medical-legal evaluation report. Nothing in this paragraph shall be construed to prohibit a physician from addressing additional related medical issues.

(3) The report is capable of proving or disproving a disputed medical fact essential to the resolution of a contested claim, considering the substance as well as the form of the report, as required by applicable statutes, regulations, and case law.

(4) The medical-legal examination is performed prior to receipt of notice by the physician, the employee, or the employee's attorney, that the disputed medical fact or facts for which the report was requested have been resolved.

(5) In the event the comprehensive medical-legal evaluation is served on the claims administrator after the disputed medical fact or facts for which the report was requested have been resolved, the report is served within the time frame specified in Section 139.2(j)(1) of the Labor Code.

Labor Code §4621 provides that "the employee, or the dependents of a deceased employee, shall be reimbursed for his or her medical-legal expenses and reasonably, actually, and necessarily incurred, except as provided in Section 4064." That section exempts the employer from liability for reports obtained "other than those authorized pursuant to Sections 4060, 4061, and 4062. However, no party is prohibited from obtaining any medical evaluation or consultation at the party’s own expense."

Labor Code §4622: Medical-legal expenses "for which the employer is liable shall, upon receipt by the employer of all reports and documents required by the administrative director incident to the services, be paid to whom the funds and expenses are due....." Should the bill be contested or not paid, or not paid in full, the provider is entitled to two reviews and, if still not satisfied, the provider can engage in Independent Bill Review

Labor Code §4628 governs how medical-legal evaluations are to be conducted. Subsection (e) provides that “Failure to comply with the requirements of this section shall make the report inadmissible as evidence and shall eliminate any liability for payment of any medical-legal expense incurred in connection with the report.”

If the worker requires a report on a disputed issue, it can be obtained too from the Primary Treating Physician using the method outlined by Sam Swift, Esq. in “How to get the PTP Paid for a Comprehensive Medical-Legal Evaluation” published in getMedLegal Magazine. Essentially, the “report is obtained at the request of a party or parties, the administrative director, or the appeals board for the purpose of proving or disproving a contested claim and addresses the disputed medical fact or facts specified by the party, or parties or other person who requested the comprehensive medical-legal evaluation report.”

Medical-legal expenses for taking depositions of witnesses fall under Labor Code §5710. There are specific provisions for the injured worker's or dependent's deposition in subsection (b), “in addition to all other benefits:

(1) All reasonable expenses of transportation, meals, and lodging incident to the deposition.
(2) Reimbursement for any loss of wages incurred during attendance at the deposition.
(3) One copy of the transcript of the deposition, without cost.
(4) A reasonable allowance for attorney's fees....”

Subsection (b)(5) covers interpreters, who are paid under a fee schedule: “If interpretation services are required because the injured
employee or deponent does not proficiently speak or understand the English language, upon a request from either, the employer shall pay for the services of a language interpreter certified or deemed certified....”

Traditionally, attorneys have petitioned for medical-legal costs under Labor Code §5811(a): “No fees shall be charged by the clerk of any court for the performance of any official service required by this division, except for the docketing of awards as judgments and for certified copies of transcripts thereof. In all proceedings under this division before the appeals board, costs as between the parties may be allowed by the appeals board.” Subsection (b) addresses interpreters at length. To recover costs of expert witnesses (medical, vocational, etc.), court reporters, etc., parties can petition under this statute, but non-parties traditionally filed liens.

Now some providers, in order to avoid lien filing and activation fees, are filing petitions for costs under Labor Code §5811 instead of filing liens under Labor Code §4903. This may comport with new regulations:

Emergency regulation 8 CCR 10205 defined “Cost” to mean “any sum that is not included as an allowable lien under Labor Code section 4903 at the time of filing, but may be allowable under another section of the Labor Code. “Costs” include, but are not limited to: (1) deposition attorneys' and interpreters' fees under section 5710; (2) medical-legal expenses, including interpreters' fees, under section 4620 on or after January 1, 2013; (3) fees related to copy service or subpoena under section 5710; and (4) costs claimed under section 5811.” Changes have been proposed that would expand this definition.

8 CCR 10205(aa) currently defines “party” to mean “(1) a person claiming to be an injured employee or the dependent of an injured employee; (2) a defendant; or (3) a lien claimant or a petitioner for costs where either (A) the underlying case of the injured employee or the dependent of an injured employee has been resolved or (B) the injured employee or the dependent of an injured employee chooses not to proceed with his, her, or their case.”

But in the en banc decision of Martinez v. Ana Terrazas et al., the WCAB held that “a claim for medical-legal expenses may not be filed as a petition for costs under section 5811; and (2) medical-legal lien claimants who withdrew their liens and filed petitions for costs prior to this decision may pursue recovery through the lien process if they comply with the lien activation fee requirements of section 4903.06 and if their liens have not otherwise been dismissed.”

See, too, Medical-Legal Reports and Liens

Label Item Links Comments
Labor Code Labor Code §4620 defines “medical-legal expense” LC §4620  
  Labor Code §5811 allows parties to petition for costs
LC §5811  
Regulations/Rules

New Regs

Definitions

Reimbursement of Medical-Legal Expenses

Reasonable Level of Fees for Medical-Legal Expenses, Follow-up, Supplemental and Comprehensive Medical-Legal Evaluations and Medical-Legal Testimony

§9792.5.5. Second Review of Medical Treatment Bill or Medical-Legal Bill

Definition of “costs”

New Regs

8 CCR §9793

8 CCR §9794

8 CCR §9795



8 CCR §9792.5.5

8 CCR §10205

 
Cases In Scheffield Medical Group, Inc. v. WCAB (1999) 70 Cal.App.4th 868, the Court of Appeals noted that “Section 4628 was enacted in 1989 as part of the overall reform package to ensure the reliability of the medical evaluation which it hoped to achieve by controlling the quality of the medical-legal report. The Legislature referred to section 4628 as an anti-ghostwriting statute.” It strictly construed LC §4628 and disallowed payment for failure to comply with its provisions. Scheffield Medical Group, Inc. v. WCAB  
Forms Provider’s Request for Second Bill Review  2nd bill review  
Websites  
Practice Tips Increasing bureaucracy has spawned confusion. Expect hassles over what requires independent bill review or a lien and what can be petitioned for under LC §5811. Applicants' attorneys need to make sure they do not leave hanging experts, treaters, interpreters, etc. who helped them with their case. Make sure they are paid as part of any resolution by filing a petition under LC §5811.  
Magazine Articles “How to get the PTP Paid for a Comprehensive Medical-Legal Evaluation” by Sam Swift, Esq. Get PTP Paid for a CMLE  
Roundtable Why waste money on med-legal bill review? by Jon C. Brissman, Esq. Why waste money on med-legal bill review?  
Miscellaneous    

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