2008-EB-4 (2008). In re Pellicer.

• Court: California

California Workers Compensation Decisions 2008. 2008-EB-4 (2008). In re Pellicer WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIA MARIA TAPIA, Applicant, vs.SKILL MASTER STAFFING; and LIBERTY MUTUAL INSURANCE COMPANY, Defendant(s).SB SURGERY CENTER, Lien Claimant.Case No. ADJ 4564224(LBO 0322121)OPINION AND DECISION AFTER RECONSIDERATION (EN BANC)INTRODUCTION To further study the issues presented, we granted the petition of lien claimant SB Surgery Center (SB) for reconsideration of the Findings & Order issued by the workers' compensation administrative law judge (WCJ) on November 30, 2007. In that decision, it was found that "The reasonable value of the services of S.B. Surgery Center is $4,700.00, less credit for prior sums paid along with interest thereon." Prior to the lien trial, SB billed $23,529.00 for outpatient surgery center services it provided in connection with surgery performed on applicant's right wrist at SB's facility, and defendant paid $1,667.66, leaving a claimed balance by SB of $21,861.34. SB contends that defendant did not present evidence of fees accepted for the same services by outpatient surgery centers in the same geographic area as described in the en banc decision of the Appeals Board in Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal.Comp.Cases 1588 (Kunz), and that in the absence of such evidence from a defendant, Kunz requires that the full amount of an outpatient surgery center's lien be allowed as a reasonable fee. Because of the importance of the legal issue presented, and in order to secure uniformity of decision in the future, the Chairman of the Appeals Board, upon a majority vote of its members, assigned this case to the Appeals Board as a whole for an en banc decision. (Lab. Code, § 115.)[1] We hold that, consistent with Kunz: (1) an outpatient surgery center lien claimant (or any medical lien claimant) has the burden of proving that its charges are reasonable; (2) the outpatient surgery center lien claimant's billing, by itself, does not establish that the claimed fee is "reasonable"; therefore, even in the absence of rebuttal evidence, the lien need not be allowed in full if it is unreasonable on its face; and (3) any evidence relevant to reasonableness may be offered to support or rebut the lien; therefore, evidence is not limited to the fees accepted by other outpatient surgery centers in the same geographic area for the services provided. FACTS On July 10, 2006, the WCJ approved a $73,000.00 compromise and release of applicant's claim that she had sustained a cumulative industrial injury from November 1999 to January 25, 2001 to various body parts, including her right wrist. The only issue remaining after the settlement was the lien claim of SB. As noted above, SB billed $23,529.00 for services it provided in connection with surgery performed upon applicant's right wrist at its facility, and defendant paid $1,667.66 of that bill, leaving a claimed balance by SB of $21,861.34. As described in the Minutes of Hearing (minutes) of the lien trial on October 30, 2007, defendant earlier stipulated that applicant incurred industrial injury to her right wrist and there was no dispute that SB provided reasonable services in connection with the wrist surgery performed at its facility on April 9, 2002.[2] Thus, the only issue was the reasonable amount that should be allowed as a fee for the services provided. The minutes show that SB placed the following into evidence:

"Lien Claimant's 1 - Report of S.B. Surgery Center operative report dated 4-9-02.

Lien Claimant's 2 - Lien and billing of S.B. Surgery Center.

Lien Claimant's 3 - Two letters from CMS Network [SB's representative] dated 9-11-07 and 10-23-07.

Lien Claimant's 4 - Letter from Administrative Director of Divsion [sic] of Workers' Compensation, Richard Gannon, dated June 19, 2002.

Lien Claimant's 5 - A letter from Steven Siemers, Chief Judge of the Divsion [sic] of Workers' Compensation, dated October 15, 2003."

Defendant placed the following into evidence:

"Defendant's A - Excerpts from Coding Companion for Orthopedics-Upper: Spine & Above; Ingenix.

Defendant's B - Part B Answer Book from Medicare Billing Rules Part B.

Defendant's C - Ambulatory Payment Classification Guide Ingenix 2003.

Defendant's D - California Outpatient Surgery Center Fee Allowances per CCR Section 9789.33.

Defendant's E - California Commission on Health and Safety and Workers' Compensation [CHSWC] summary.

Defendant's F - California Inpatient Hospital Fee Schedule Comparisons for Cedars Sinai, Good Samaritan, and USC University Hospital.

Defendant's G - Information regarding Medicare rates.

Defendant's H - (For I.D. Only) PPO contract excerpts."[3]

Also, in lieu of receiving testimony from defendant's expert witness, Milt Kyle, the minutes reflect the parties' stipulation that he would have testified as follows:

"The average DRGs [Diagnostically Related Groups] for the inpatient hospital fee schedule for the three hospitals mentioned earlier that are in the exhibits, and

...