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Jun 30 2014

Physicians Not Entitled to Usual and Customary Fee when Injury Denied

The case summarized below reverses prior panel decisions had held that physicians could bill their usual and customary fee in cases where injury was denied and ultimately injury was found and the treatment was found to be reasonable and necessary. This case eliminated the injury denied exception to applying the OMFS.

Rodriguez V. Zenith (BPD) (42 CWCR 45):

The board indicated the laws has changed and the physicians are bound by the OMFS unless they come under the circumstances set forth in A.D. rule 9792 (c) which provides as follows:

A medical provider or a license healthcare facility may be paid a fee in excess of the reasonable maximum fees contained in the OMFS if the fee is reasonable, accompanied by itemization, and justified by an explanation of the extraordinary circumstances related to the unusual nature of the services rendered; however, no event shall the physician charging excess of his or her usual fee.

Applicant suffered a hernia in the course of employment. The hernia was repaired at Kaiser Foundation Hospital. Defendant denied liability for the injury. Applicants claim went to trial and the WCJ found the applicant sustained an injury.

Kaiser request their lien be reimbursed at their usual and customary fee.

The WCJ following the hearing allowed Kaiser’s lead in full. The WCJ found that the Kaiser physician were the PTP.

Defendant filed a petition for reconsideration. Defendant argued that Kaiser should have been limited to the Official Medical Fee Schedule (OMFS)

The WCAB limited Kaiser to the OMFS in a 2 to 1 decision.

The majority began by pointing out that several writ denied cases including (Valdez) (62 CCC 1145), have held that medical providers were not limited to the OMFS amounts when the injured employees claim was denied. The WCAB pointed out they are not bound by panel decisions.

The WCAB further indicated the statutory basis for those prior decisions had changed. The minimum fee schedule in existence in 1973 was subsequently replaced by the OMFS, which establishes a reasonable maximum fee. (LC 5307.1)

The circumstances under which a medical provider may recover more than the OMFS are set forth in A.D. rule 9792 (c) as follows: A medical provider or a license healthcare facility may be paid a fee in excess of the reasonable maximum fees if the fee is reasonable, accompanied by itemization, and justify by explanation of the extraordinary circumstances related to the unusual nature of the services rendered; however, no event shall the physician charging excess of his or her usual fee.

At the time the valdez case was decided defendant had the burden of proving that a treating physician charges were excessive, but now lien claimants have that burden of proving that their charges are reasonable. (Tapia, WCAB en banc, 73 CCC 1138)

Reviewing the record before it the majority observed that Kaiser had not presented any evidence justifying charges in excess of those provided in the OMFS.

A dissenting Commissioner would have allowed Kaiser the full recovery and customary charges. He reasoned that Valdez was still good law.

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