Course Lesson One

Introduction

How to be A Strategist

Meeting Burden of Proof Denied

Case Luis Gonzalez (Luis Gonzalez Valladeres), Applicant v. San Cristobal

Distributing, State Compensation Insurance Fund, Defendants No.

ADJ6448504 (Panel Decision)Opinion Filed November 12, 2010 which held:

“When an applicant's case is resolved by a compromise and release with no

admission of liability, a lien claimant has the burden to establish a prima facie

case of industrial injury. After a prima facie case is presented, the burden shifts

to the defendant to rebut the prima facie showing. (Pace Medical Group, inc. v.

Workers' Comp. Appeals Bd. (Valiente) (1994) 59 Cal.Comp.Cases 354, 356

([writ denied].) Contrary to the defendant's argument, it is well established that

a lien claimant can carry its burden by introducing hearsay statements in

medical records, and it is not required to prove its case by presenting an

injured worker's testimony. (Independence Indem. Co. v. IAC (Lohnes) (1935)

2 Cal.2d 397, 410 [20 IAC 311]; Lab. Code, §5708.)

12/11/2016 www.workcompliens.com 5

Defective Notices –Resulting In

Unreasonable Offer of Care

Bruce Knight, United Parcel Service; and Liberty Mutual Insurance Company October 10, 2006 71 Cal. Comp. Cases 1423 “The Board held that an employer or insurer's failure to provide required notice to an employee of rights under the MPN (medical provider network) that results in a neglect or refusal to provide reasonable medical treatment renders the employer or insurer liable for reasonable medical treatment self-procured by the employee.

9767.9. Transfer of Ongoing Care

into the MPN

9767.9 (j) If the treating physician does not agree with the employer's or insurer's determination that the injured covered employee's medical condition does not meet the conditions set forth in subdivisions (e)(1) through (e)(4), the transfer of care shall not go forward until the dispute is resolved.

Big issue for providers, they are ignoring these notice

to transfer into MPN when all they had to do was

object to make it an none issue and continue to treat

until resolved by the WCAB

Date if Injury Prior to 2005

Providers normally missed this it was prevalent a

lot in years past, but will see it on old files still to

this day – Always check the date of injury if

prior to 2005 there was no MPNs then and the

defense would have the burden of proof to show

that the treatment was transferred into the MPN.

Facts (for this purpose all falls under SB863 there are other rules that would apply for

DOS prior to 2013 ): My date of services are 5 years past (suppose it is an 18 time to

file dispute file)-- the case in chief resolves today, no lien filed, by law I cannot file a

lien -- but, can I get a order from payment even outside medical legal services-

Chess is a game of strategists, so is Provider

Disputes for Workers Comp, whether it was

intended or not, that's where we are.

Chess is a game of strategists, where each piece that is moved

has a purpose and a reaction, meaning one cannot just move a

piece and not expect a response to that move. The more

purposeless a move is, the more likely you will lose that piece

or it will have no effect on the outcome, something we can

equate to demand letters and sometimes phone collections.

Purposeless acts, are the most difficult for most to let go, as in

years prior that was the game of choice, where payments could

be made regardless of what one stated in a demand letter or

over the phone.

The Power of Each Process

The King is defined as the burden

of proof.

The King is defined as the burden of proof. The reason is, that if the King is

captured or more correctly checkmated, it ends the game, although not the

most powerful piece as it can only move one space at a time in any direction

(exception, castling ), it is the most important piece, as without it, the game is

over. In workers comp, based on the 2012 en banc "Torres" case, although a

WCAB decision, all stages and or processes involved in a Provides' dispute,

revolves around the burden of proof. From medical reports justify billing

codes, medical facts in medical reports for authorization, overcoming MPNs

and most importantly, issues at the WCAB, all are determined based on

the burden of proof, without it you lose, with it and the game is won. From the

start to the end of the game, one always protects the King, using pawns and or

any other piece to accomplish that. Thus like workers comp, from the start,

you use other processes and evidence to develop your burden of proof

The Queen is defined as, Medical-

Legal, WCAB and Petitions. The Queen is defined as, Medical-Legal, WCAB and Petitions. The Queen is the most

powerful piece in the game, although many a games are won without it, one does not let it

go easily, as it can move like any piece on the board, except the knight, that can jump over

pieces. In workers comp, Medical-Legal services / disputes have a carve out, outside the

requirement of normal authorization, not subject to MPN rules and defenses, not subject to

the determination of the case-in-chief, nor subject to lien fees and time limits, making

medical-legal services the most powerful of all services in workers comp. Only a master

chessman or chess-woman, truly knows the importance of the Queen and how to

maximizes its function and power. Because of the many powerful tools in workers comp, I

added to the Queen, the WCAB, Appeals and Petitions, as the additional power tools of the

Queen. Petitions; the Director through the medical unit of the DWC is in control and the

watch dog of the UR, IBR, second review and IMR Process, of which several Petitions and

appeals can be filed, both defined and those yet to be defined. This process is to ensure the

King (burden of proof), is not compromised by fouls in the game. The Queen, also defines

the WCAB, with the massive influx of laws, a tremendous amount of case law should be

being created as to the interpretation and function of the new laws, of which is presently

lacking, thus the lack of the use of the queen.

The Rook or slang, castle (because it

looks like a castle),

The Rook or slang, castle (because it looks like a castle), is defined as, the

IBR process and fee schedule issues. The castle is a strong and powerful piece

and each player has two. The rook can move forward and backward or from

side to side and covers a wide range of the board. However, because of its

limited function, all players always look to see where the rook is, thus few

surprises, as it is more of a matter of fact piece. The IBR process is a powerful

tool and regardless of the $195.00 fee, it has to be used, because of the several

IBR decisions already posted, going to the IBR and knowing the results before

hand should be no surprise. However, mastering the rook is knowing how the

rook has been played in other games to achieve a wining game, i.e. sometimes

it addresses; authorization issues, PPO issues and usual and customary, making

those who read the IBR decisions a master of playing the rook, for winning

moves.

The Knight is defined as MPN

issues.

The Knight is defined as MPN issues. The Knight (or the horse), is an

odd piece, as it is the only piece that can leave the board and jump over

other pieces, both friend and foe alike, but is limited to its "L" shape

moves; one, two and over (left or right), each player has two. The

Knight is a strategists piece, meaning, it is normally moved into

position early in the game and waits for the game to come to it, a game

winning piece if used correctly. Like MPNs, the issues and defenses

have to be developed early in a dispute, failure to do this and wait for

the WCAB, will leave one unprepared and the victim of sanctions.

However, the Knight is essential and known for fast winning game

moves (i,e, winning in a few well chosen moves), in line with a

combination of pieces ( the expiated hearings regarding treatment

outside the MPN, or objections to transfer into an MPN).

The Bishop is defined as UR and

IMRs.

The Bishop is defined as UR and IMRs. For novice

players, the Bishop is always a surprise, sometimes

coming out of nowhere with game winning moves, as it

stays on its own color and moves diagonally for as many

spaces that are clear. Only the Queen can match its

moves, thus not the norm of most pieces in the game. The

IMR process is still a surprise to most and untapped, as it

is plain and simple to get treatment authorized, but only if

one understands the IMR decisions, as they are not limited

to the MTUS, a great error by many.

The Pawn is Defined as Billing and

EORS.

The Pawn is Defined as Billing and EORS. Each player has eight

pawns and although a pawn can only move one space at a time, taking

opponents only diagonal to it, it protects the burden of proof (King) and

if it reaches the other side, it can be exchanged for any captured piece.

EORS and correct billing is extremely important, and knowing what

these EORS actually mean determines the nature and extent of the

game, move or interpret wrong and the game is now long and drawn

out, do it right and the game is easily won.

As one can see by the above analogy, Providers disputes being resolved

by liens, is a very small part of the overall picture, with fairness

existing for Providers, but only for those that; understand, master

it and apply it correctly, everything has a purpose and has to be treated

as such.

Course Lesson One

Introduction

How to be A Strategist