The California Code of Regulations §9793 outlines that a primary treating physician may provide medical-legal services. Labor Code section 4620(a) states, “[A] medical-legal expense means any costs and expenses incurred by or on behalf of any party, the administrative director, or the board … for the purpose of proving or disproving a contested claim.”

Facts

In the case of Rico v. Starcrest Products of California, Inc., 2023 Cal. Wrk. Comp. P.D. LEXIS 107, (not a significant panel decision), Zenith denied applicant’s orthopedic claim on October 08, 2021. Applicant was evaluated by a QME on January 14, 2022. On March 08, 2022, applicant’s attorney sent a copy of the denial letter to Chiropractor Haghighini (Medland) requesting a med-legal report to address causation of the contested claim and designating the provider as a primary treater. The claim resolved via Compromise and Release on June 30, 2022. Medland timely filed their lien. At the lien trial, there was no testimony or evidence to dispute compensability submitted by defendants. It is unclear from the facts of the case if the QME found causation or if the claim resolved as a contested claim.

Dispute

MedLand requested payment for the initial comprehensive evaluation they performed at the request of applicant’s attorney. Zenith denied payment arguing §4060(c) and Labor Code §4062.2 that it was not legally obligated to pay the lien physician for the med-legal fees and that the initial visit from a doctor chosen by the applicant attorney cannot issue a compensable med-legal report. Zenith further argued that Dr. Haghaghinia from Medland is not a Panel QME, and therefore the initial report is not compensable as a medical-legal report.

The judge directed Zenith to Labor Code §4060(b) which states that the parties are not liable for med-legal reports that are not performed in compliance with that statute, except for those performed by the treating physician. California Code of Regulations §9793 states that a comprehensive med-legal evaluation is either performed by a QME, AME, or primary treating physician for the purpose of proving or disproving a contested claim.  Labor Code §4064 states in part that the employer shall be liable for the costs of each reasonable and necessary comprehensive med-legal evaluation paid by the employee pursuant to §4060, §4061, and §4062. 

Findings

The WCAB found that the treating physician’s initial report was requested for the purpose of proving or disproving a contested claim, and therefore the treating physician’s initial report was compensable as a medical-legal expense.

Application

This case provides a good argument for a lien claimant to receive payment of their initial comprehensive medical evaluation. However, it could still be argued that any additional treatment after the initial comprehensive reports are not med-legal reports and are not used to disprove a contested claim. The lien claimant holds the burden of proving that applicant suffered an injury in the course of and arising out of their employment and proving their lien. Whether or not  you have evidence to rebut their initial reports at any lien trial would be on a case-by-case basis.