by Scott Rountree –
Don’t Have Enough Work?
Rule 10608 requires plenty of that. In a nutshell, this statute requires that lien claimants who request it be copied on all medical reports (not simply reports obtained on behalf of the defense).
Rule 10608(a) requires that medical reports be served on lien claimants within six days after receipt of a demand. Thereafter all subsequent reports must be served within six days after receipt. Additionally, Rule 10608 (b) states that DORs and objections to DORs must be accompanied by all medical reports not previously served on lien claimants requesting service.
In your “spare time,” take a look at the endless number of bills and liens that cover your desk. How many of them have boilerplate language demanding all medical reports pursuant to Rule 10608? Most? All? The realities of a claims department make compliance with this regulation daunting, if not impossible.
Do Lien Claiments Need These Medicals?
No! 99 times out of 100, a lien claimant has no use whatsoever for medical reports. However, lien representatives at the Board throw 10608 in the face of a defendant to gain a tactical advantage. They are well aware that compliance with the statute is virtually impossible; however, judges often side with lien claimants who have not been copied with medical reports. Lien claimants regularly contend that this entitles them to continuances, exclusion of evidence, and, in extreme cases, costs and sanctions.
What Can You Do?
Protecting yourself is not as problematic as it may seem. Have your address list amended to include each new lien claimant, and medical reports can be served automatically on receipt. This becomes problematic because as the file proceeds, new liens come on file, and it becomes difficult to match up which lien claimants have been served with what. If in doubt, serve the “entire set” to all lien claimants immediately prior to an MSC. Since it is presumed that discovery will be concluded at this juncture, it is understood that no further medical reports will be issued. (There will, of course, be exceptions. We are dealing with workers’ compensation!)
The best way to cope with 10608 is to be mindful of which lien claimants exploit the rule. In my experience as Bradford & Barthel’s lien specialist for the past five years (and a claims examiner for several years prior to that), interpreters use it to its fullest potential. Additionally, durable medical providers, non-traditional MRI facilities (such as those that undertake multiple image or positional MRIs), and surgery centers tend to exploit Rule 10608.
Lien Claimants Have Responsibilities Too!
Lien claimants do not like to be bothered with Labor Code §3202.5 (namely, they have the burden of proving their lien). It is not a defendant’s job to prove why they shouldn’t be paid; it is a lien claimant’s job to show why they should be paid.
However, defendants’ failure to comply with 10608 effectively gives them a “Get out of jail free” card.
In your claims handling, be mindful of the more aggressive lien claimants and simply mail them medicals. Once this is done, you can deal with substantive (and effective) issues such as medical necessity, ACOEM, and the fee schedule. You get to the “nitty-gritty” once the lien claimant’s trump card (Rule 10608) is gone.
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