Lien Claimant’s Burden of Proof in Psychiatric Injury Disputes at Issue in Upcoming 2nd DCA Case

Oral arguments will be heard at the 2nd District Court of Appeal on April 16th, 2015 for the case of Rahimi vs. WCAB.  At issue is the burden required for a lien claimant to prove an injury arose out of and in the course of employment (AOE/ COE), medical necessity of treatment, and reasonableness of billing charges.  The Court of Appeal has the option to limit its opinion to psychiatric cases, or lay a comprehensive framework and burden shifting model for which future liens should be litigated in all workers’ compensation cases.

A Compromise and Release (C&R) was approved on February 3, 2010, in the case of Narmine Aleskerova vs. US Bank (ADJ 3048900).  Treating psychiatrist, Dr. Rahimi, filed a lien for 74 visits, which was unresolved when the case C&R was approved.  At lien trial, Dr. Rahimi offered no witness testimony and submitted as evidence only his billing statements for all 74 treatment visits, as well as a Psychiatric Panel Qualified Medical Evaluator’s report by Dr. David Glaser.  The bills were submitted without substantiating medical reports.  In the Panel report, Dr. Glaser determined that based on the history provided by Ms. Aleskerova, her job was the predominant cause of her psychiatric injury.  Dr. Glaser also reviewed the treatment provided by Dr. Rahimi and determined the treatment was reasonable and necessary.  The Workers’ Compensation Judge (WCJ) found in favor of defendant, ruling that Dr. Rahimi had not met the burden of proof for AOE/COE, medical necessity, or reasonableness of charges.

The WCJ concluded that a Panel report finding applicant’s psychiatric injury AOE/COE is insufficient to meet lien claimant’s burden of proof. To prove AOE/COE, the lien claimant had to corroborate the history provided to Dr. Glaser with testimony of the applicant, a deposition transcript, or an offer of proof from the applicant. Without the defendant to have the opportunity to cross-examine that testimony, the report of Dr. Glaser alone did not rise to the preponderance of evidence necessary for an industrial finding.

Regarding the reasonableness and necessity of the medical treatment provided by Dr. Rahimi, the WCJ determined that a review of Rahimi’s medical records is insufficient to carry the burden of proof for the lien.   The WCJ emphasized that Dr. Glaser made no reference to whether the medical treatment was consistent with the Medical Treatment Utilization Schedule (MTUS) or the American College of Occupational and Environmental Medicine’s Occupational Medicine Practice (ACOEM) Guidelines.  The WCJ determined that,without this reference, Dr. Glaser’s Panel report opinion was not sufficiently substantiated to determine Dr. Rahimi’s treatments were reasonable and necessary.

Lastly, the WCJ found that Dr. Rahimi’s submission of his billing alone was not sufficient to prove that his charges were reasonable.  Each of Dr. Rahimi’s bills was $200.00, which exceeded the Official Medical Fee Schedule.  Without additional evidence to establish the reasonableness of the charges, Dr. Rahimi failed to meet his burden and should take nothing on his lien.  Dr. Rahimi appealed the decision.

A majority WCAB Panel affirmed the lower court’s decision, but Commissioner Ronnie Caplane authored a dissenting opinion.  In Caplane’s opinion, Dr. Rahimi met his burden of proof and had provided sufficient evidence to entitle Dr. Rahimi payment.  Caplane stated that Dr. Glaser’s Panel report and determination of industrial causation was considered substantial medical evidence, which exceeded the required preponderance of evidence to prove AOE/COE.  Caplane opined that although Dr. Glaser’s reporting did not explicitly mention the MTUS or ACOEM Guidelines, Dr. Rahimi’s treatment was in fact consistent with treatment recommendations for stress-related conditions as set forth Chapter 15 of ACOEM Guidelines.  With respect to the reasonableness of charges, defendant should have been order to pay the billing according the OMFS.

Here is a link to the WCAB decision.

What are the implications of the upcoming decision?  What is at stake?  The 2nd DCA has several options.

  1. The Appeals Court could provide a strict burden-shifting framework for which a lien should be litigated.  This would be a departure from the now ambiguous and vague framework which seems to vary from WCAB district office and Workers’ Compensation Judge.  Perhaps such a framework is overdue.  The divided WCAB Panel seems to suggest this.
  2. The Court could limit its decision to the required burden for AOE/COE in psychiatric injury cases.

Boehm will keep you abreast of developments as they unfold.