Last month, we reported that the California Workers’ Compensation Interpreters Association (CWCIA), along with several interpreting companies, filed a lawsuit to prevent the Workers’ Compensation Appeals Board (WCAB) from enforcing Senate Bill 1160’s new lien declaration requirements. Although that petition was summarily dismissed by the First District Court of Appeals in May, it prompted the Division of Industrial Relations (DIR) to file a brief and provide clarification on the new lien process. We already touched on how the DIR’s brief provides guidance to interpreters. Today, we’ll take a broader look and show how it offers valuable direction to all stakeholders in the new lien declaration process – not just interpreters. We’ll also teach you how to select the right lien declaration category every single time.
SB 1160 amended Labor Code § 4903.05 to require lien claimants to file a declaration affirming that their lien satisfies at least one of the seven lien categories listed in sections (A) through (G) of the amended Labor Code. This lien declaration became mandatory for all new liens filed as of January 1, 2017.
Existing lien claimants who filed a lien between January 1, 2013, and January 1, 2017 – that is to say, liens subject to the filing fee under Labor Code § 4903.05 – must file a retroactive lien declaration prior to July 1, 2017.
The DIR brief filed in district court provides much-needed clarification on the rationale behind these new requirements. The brief explains that the legislature enacted the new lien declaration as an anti-fraud measure to require service providers to “demonstrate that the liens are valid.”¹
The DIR brief also assures lien claimants that the new declaration does not invalidate any lien claimant with a valid lien. Instead, all valid lien claimants can protect their liens by “simply filing the required declaration, and choosing the category that most accurately reflects the grounds justifying the lien.”² You can download your own copy of the brief with our highlights from our webinar library.
The categories for lien declaration are as follows:
- The claimant is the employee’s treating physician and is providing treatment through the employer’s medical provider network (MPN).
- The claimant is the agreed or qualified medical evaluator overseeing the case.
- The treatment provided by the claimant was previously authorized by either the employer of the claims administrator.
- After a diligent search, the claimant has determined that the employer does not have an MPN.
- The claimant has documentation that medical treatment for the injured employee has been neglected or unreasonably denied.
- The claimant can show that any expense arising from their treatment was the result of an emergency medical condition.
- The claimant is either providing medical-legal services as a copy service, providing services during a medical-legal examination as a certified interpreter, or has some other expense allowed as a lien per the rules of the DWC administrative director.
How does a claimant know which category to choose? We’re glad you asked.
How to Choose the Correct Category of Lien Declaration
Category A is satisfied by a treating physician providing care through a Medical Provider network. So if the lien claimant is a treating physician for the injured employee, and the physician is included in the employer’s MPN, the provider could choose Category A on the declaration form.
For purposes of proving qualification for this lien declaration category, we recommend that MPN physicians request written documentation acknowledging that the physician is a member of the self-insured employer or insurance carrier’s MPN. Though this isn’t technically required, we believe that pro-actively furnishing documentation is a prudent step for all providers selecting this lien category.
Category B is for lien claimants who are a designated AME or QME physician. So all AME and QME physicians who choose to file a lien instead of a Petition for Determination would choose Category B on the lien declaration.
Category C is for lien claimants who provided authorized treatment.
A lien claimant chooses category C if the employer or the claims administrator authorized treatment per the utilization review requirements under section 4610 of the the Labor Code. Remember, Labor Code 4610 requires a physician to submit a request for authorization for all medical treatment provided to cure or relieve the injured worker under Labor Code 4600.
Labor Code 4600 also states that, if the employee cannot proficiently speak or understand the English language, the injured employee is entitled to the services of a qualified interpreter in addition to medical treatment. In these cases, the employer or insurance carrier is required to pay for interpreter services.
The DIR brief defending the new declaration states that Labor code section 4600 subdivision (g) “specifically includes interpreting services within medical treatment to which an injured worker is entitled when necessary.”³ So the DIR brief designates interpreter services as medical treatment, and instructs interpreters to choose category C when interpreting services are authorized.
Category D is satisfied when a lien claimant has “made a diligent search and determined that the employer does not have a medical provider network in place.”⁴ The DIR brief directs lien claimants to use the DWC website, which maintains a PDF roster of over 2,300 approved MPN applications. Best practice tip: Use the DaisyBill Work Comp Wizard which integrates the DWC’s MPN List in a searchable format.
Category E applies when care is neglected or refused. This category specifically requires documentation.
California Labor Code 4600 requires the employer to pay for all care and services “reasonably required to cure or relieve the injured worker from the effects of his or her injury.”⁵ It also allows an injured worker to self-procure the necessary treatment when the employer neglects or refuses to provide this care. Although if the employer is liable for the injury, the employer remains “liable for the reasonable expense incurred by or on behalf of the employee in providing treatment.”⁶
The DIR brief allows that Category E “mirrors the provision in [Labor Code] section 4600 authorizing an injured worker to self-procure medical treatment (including interpreting services) when the employer neglects or refuses to provide that treatment.”⁷ Therefore, whenever a claims administrator contests liability for an injury, Category E is the correct choice on the lien declaration.
As for documentation, the DIR brief clarifies that documentation of denied or neglected care can be “a simple letter from the insurance company denying the claim, demonstrating why the worker is self-procuring care.”⁸
Category F designates liens for emergency condition expenses. A lien claimant chooses Category F when the lien is for expenses incurred due to an emergency condition as defined by subdivision (b) of Section 1317.1 of the Health and Safety Code:
“‘Emergency medical condition’ means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in any of the following:
(1) Placing the patient's health in serious jeopardy.
(2) Serious impairment to bodily functions.
(3) Serious dysfunction of any bodily organ or part.”⁹
To repeat, liens are allowed for expenses related to emergency medical conditions which we just defined, but not for emergency treatment provided by a physician. In the latter case, a retrospective RFA is required, followed by IMR if utilization review denies the retrospective RFA.
Category G – the final category – is used by certified interpreters or copy services to file liens for services rendered during a medical legal examination or for medical-legal services, respectively. Somewhat ambiguously, Category G also allows for lien claimants with “an expense allowed as a lien under rules adopted by the administrative director.”¹⁰
We reached out directly to the California Department of Industrial Relations about the meaning of this particular portion of Category G. According to the response from the Counsel for the DIR, this portion is “intended to provide allowance for any viable liens that may be identified in the future which were not accounted for in the list.”
Want more information on lien declaration? Watch our webinar below and download your very own copy of the DIR brief, complete with DaisyBill highlighting.
¹ See page 11 of the DIR brief.
² More information is available on page 44 of the DIR brief.
³ See page 32 of the DIR brief. Full text of Labor Code 4600 here.
⁴ Full text of Labor Code 4903.05 here.
⁵ Full text of Labor Code 4600 here.
⁶ See Labor Code 4600, subdivision (a).
⁷ See page 33 of the DIR brief.
⁹ Full text of Health and Safety Code Section 1317.1 here.
¹⁰ Full text of Labor Code 4903.05 here.