EK HEALTH

by Steve Kline, Esq.
EK Health Services' Legal Counsel

One of the major changes that occurred with the 2003/2004 reforms of workers’ compensation was the statutory restriction to 24 visits each for chiropractic care, physical therapy, and occupational therapy. In 2008 this was modified so that the limitations would not apply to visits to post-surgical physical medicine and post surgical rehabilitation services provided in compliance with evidence based medicine principals.

In an interesting panel decision (Guadalupe Santa Cruz v Pep Boys, ADJ3861984) the WCAB was presented with interesting issues from a lien claimant / chiropractor. His total bill for services was $67,803.61 for the applicant’s treatment. The defendants paid $4199.20 on that bill. A lien trial for the balance resulted. After two days of trial, the workers’ compensation judge awarded an additional $66.94 to the chiropractor. The rest of the lien was disallowed.

In his Petition for Reconsideration, the chiropractor asserted that the applicant was entitled to at least 24 sessions of chiropractic, physical therapy, and occupational therapy treatments for a total of 72.  He also claimed that since much of the applicant’s treatment was postsurgical that the 2008 law revision should be retroactively applied.

The panel did not render an opinion on the issue as to whether the 2008 revision should be retroactively applied. They supported the trial judge’s opinion and affirmed his decision. The primary reason for their decision was the fact that the chiropractor did not prove that he was licensed to perform physical therapy or occupational therapy. He neither testified nor presented any evidence of being licensed in those areas.  Consequently, his treatment in those areas was disallowed.

Lien claims have always been the expensive stepchild in the workers’ compensation system. This area is replete with abuse and fraud.   For many, the expense of fighting over the bill is greater than paying the lien claimant 30 to 50 cents on the dollar to get rid of the matter.  The latter option has motivated some lien claimants to create a business model out of that system.  Meanwhile, the abuse of claims mounts up.

There are some important lessons to be learned from this panel decision that help to create the confidence that fraud and abuse can be minimized.

• Verifying that the treatment being billed was authorized;
• Making sure that the services being billed are actually received by the injured worker;
• Being prepared for a lien trial with the appropriate evidence and witnesses to show that the fee schedule is being followed;
• Insisting that lien claimants at trial prove that they are fully licensed.

This is only a partial list to trigger your ideas.  Fraud and abuse are a system cost driver in the workers’ compensation system.    Confronting and challenging it is not an easy task. It is one that must be done.  Who said that if you’re not part of the solution, then you’re part of the problem?

Thanks for your attention.