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A panel decision at the California Workers' Compensation Appeals Board appears to tip the burden of proof onto surgical centers in proving their billing charges are reasonable.

Chairman Joseph Miller wrote the opinion that overturned a judge's decision to award an entire lien amount to Santa Ana Outpatient Surgery Center. Miller said it was the lien claimant's burden to affirmatively prove its case.

"The WCJ erred in holding that the lien should be allowed in its entirety because of the defendant's failure to raise the issue of the reasonableness of the claimed charges as an issue," Miller wrote in Jiminez v. Galaxy Shade Systems, WCAB Case No. ANA 0377538.

Stakeholders, including one attorney who represents medical providers in lien cases, said that the WCAB panel came up with a different evidence standard than what has governed medical billing lien cases to date.

"If the Jiminez panel did not directly contradict Kunz, it certainly convinced many in the workers' compensation community that it did," said attorney Jon Brissman.

He said the thrust of the WCAB panel's decision in the Jiminez appears to deviate from the widespread interpretation of what is sufficient evidence in medical-lien cases.

That interpretation was laid out in Kunz, and to date has been that a surgical center's billing charges were presumed to be reasonable on their face unless the employer or carrier produced contrary evidence, Brissman and others said on Friday.

"The decision appears to spin the WCAB En Banc decision in Kunz v. Patterson Floor Coverings case (2002) in a manner not previously applied," Brissman said.

Brissman was not involved in the Jiminez case, on which Commissioners Miller, James Cuneo and William O'Brien granted reconsideration and remanded to the trial court to determine the reasonableness of the Santa Ana surgery center's billing charges.

The surgical center filed a lien for $31,007 and itemized the bill charges as $15,800 for surgical room, $13,679 for medical and surgical supplies, and $1,528 for medications. The employer and its carrier, Galaxy Shade Systems and Truck Insurance Exchange, challenged the judge's decision giving the surgical center the full amount.

The workers' compensation judge in her opinion explained she allowed the full amount of the lien because the defendant never raised the issue of reasonableness and necessity of treatment "even in the Stipulations and Issues framed at the Lien Trial."

The judge also wrote in her report that even if the employer and carrier had properly raised the reasonableness issue of the lien, they should be denied reconsideration because they did not meet the "supposed" burden of providing the lien was unreasonable.

Miller, Cuneo and O'Brien disagreed with the judge on both counts. Their opinion cited a 4th District Court of Appeal opinion that stated, "in workers' compensation matters, the burden of proof rests on the party or line claimant 'holding the affirmative of the issue.' (Labor Code Section 5705). The lien claimant bears the burden of establishing the ... entitlement to benefits and the reasonable value of the services,'" the citation read.

Miller added in the opinion, that the judge also erred in charging the employer and carrier with the burden of proving the applicant's charge was unreasonable.

"We believe the WCJ misapplied our holding in Kunz," Miller wrote. "Nowhere does the Kunz alter the axiomatic rule that the lien claimant has the burden of proving the reasonableness of the amounts charged."

Brissman said that hasn't been the understanding of the attorneys and the workers' compensation judge since Kunz was decided five years ago.

He referred to a line from Kunz that said "In the absence of persuasive rebuttal evidence from the defendant, the outpatient surgery center's billing, by itself, will normally constitute adequate proof that the fee being billed is what the outpatient surgery center usually accepts for the services rendered."

The workers' compensation community has largely interpreted that section to mean that a surgical facility's submission of its billings shifted the burden of proof to defendant to show the charges were unreasonable, Brissman said.

"Now, however, the Jiminez decision casts that interpretation into question."

Leslie Wolfe, a medical-lien hearing representative, agreed that the WCAB panel has reinterpreted what everybody thought was the evidence standard in medical-lien cases.

"I feel like there's a wild renegade feeling going on in San Francisco," she said, adding that she would expect the surgical center to appeal the WCAB decision.

York McGavin, a durable medical goods provider based in Los Angeles, said the WCAB has done a 180-degree turn with its new interpretation of evidence for proving medical billing charges are reasonable.

"What the WCAB did here was give the defendants in this case another bite of the apple" to put on their defense for why Santa Ana Surgical Center's charges aren't customary for the facility or for the surgical centers nearby, McGavin said.

He boldly predicted, "This is going up on appeal."

One attorney told WorkCompCentral that the decision is a clear reversal of Kunz because that ruling presumed reasonableness in the absence of rebuttal evidence. The WCAB in Jiminez said a bill has to be reasonable on its face and won't be presumed to be reasonable, even if the defense doesn't challenge it.

Chairman Miller said the WCAB rejects the proposition that writ denied cases by appellate courts stand for "the proposition that the WCAB must accept billing which is unreasonable on its face as evidence."

The board also rejects that the defendant has the burden of proving that the amount billed by an outpatient surgical center is unreasonable, or that evidence mentioned in Kunz may be used to determine whether a billing charge is reasonable, Miller said.

"We decline to follow it," he wrote.

-- Source WorkCompCentral

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