News

SB1160 Lien Declaration Guidelines

The Petition filed by CWCIA and 4 other interpreters challenging SB 1160’s requirement for lien claimants to check a box on a declaration forced the DIR to provide clarification in its Response Brief. Here is a summary.


Check boxes C, G or E depending on which one bests fits the lien
In its Brief, the DIR stated that our options include checking boxes “C” or “E.” Analyze the objection letters and other correspondence received to determine the most appropriate option.

Some interpreters are also checking box “G” based on the information given in the Final Statement of Reasons, specifically: DWC rule 9795.1.6 addresses payment of fees to interpreters for medical treatment.

What kind of documentation do you need?
1) A letter from an insurance company denying the claim (EORs, EOBs, etc.).
2) A simple declaration from the interpreter explaining that the insurer failed to supply an interpreter for an appointment despite being informed of the need for one.
3) A 4600 designation letter from the attorney or medical provider.
4) A simple declaration from the interpreter describing the circumstances justifying the provision of the services.
5) A simple declaration from the interpreter stating the medical provider has been paid for its services, when yours haven’t.


Remember that the declaration must be included with all new liens, served on the parties AND it must be submitted by July 1, 2017 for any liens you filed between 2013 and the January 1, 2017. Liens without a declaration and proof of service will be dismissed by operation of law and can’t be re-filed, so you have 3 weeks to get busy!

Sincerely,

CWCIA

****DISCLAIMER ****
The information provided is designed to provide helpful guidance regarding the new requirement that liens be filed with declarations. It is NOT legal advice. Consult an attorney prior to using this information.

The following are the instructions straight from the brief:

When Medical Treatment is Authorized

When medical treatment and interpreting services are authorized, interpreters may, and should, file lien declarations pursuant to the “(C)” category in new subdivision (c)(1) of section 4903.05 (which specifies that the lien claimant “[h]as provided treatment authorized by the employer or claims administrator under Section 4610”). (Lab. Code, § 4903.05, subd.
(c)(1)(C).)


When Medical Treatment is NOT Authorized

Any liens arising from circumstances in which medical treatment was not authorized, or when the medical treatment itself was authorized but the interpreting services were not (for example, if the worker received treatment through an MPN that included interpreting as an ancillary service but self-procured his or her own interpreting services), should be filed under category “(E)” above – which requires a statement that the lien claimant has “documentation that medical treatment has been neglected or unreasonably refused to the employee as provided by Section 4600.” (Lab. Code, § 4903.05, subd. (c)(1)(E).) Petitioners’ complaints about the infeasibility of this category (that they must obtain medical records and must be able to prove the “legal standard” that treatment was “unreasonably” refused) are manufactured and unwarranted. This category simply mirrors the provision in section 4600 authorizing an injured worker to self-procure medical treatment (including interpreting services) when the employer neglects or refuses to provide that treatment.

Thus, in any case in which the worker is obtaining treatment not authorized by the employer or insurer, including interpreting services, the interpreter would need to know the basic circumstances establishing that the self-procured medical treatment (or interpreting) is permissible, i.e., that the employer has neglected or refused to provide the treatment.
Notwithstanding Petitioners’ arguments, this is not a burdensome requirement. It is not a complicated legal standard, it need not be based on medical records of any kind, and it need not be based on any specific form of documentation. A simple letter from the insurance company denying the claim, demonstrating why the worker is self-procuring care, would suffice under section 4600 and the new provisions of section 4903.05. Alternatively, a simple declaration from the interpreter describing the circumstances justifying the provision of the services (e.g., that the insurer failed to supply an interpreter for an appointment despite being informed of the need for one) would also be sufficient. And again, as discussed in the preceding section, existing law already required lien claimants to have proper documentation and to file appropriate declarations supporting their lien claims. This certainly would include a basic record of when treatment was authorized or denied, or when the employer or insurer neglected or refused to provide necessary
interpreting services.

Court denies Interpreter’s constitutional challenge to SB1160 Lien Declaration Provision

 

A couple of months ago, CWCIA embarked on a constitutional challenge of the recently passed AB 1160 requirement to attach a declaration to all liens. The interpreter community felt the declaration does not allow for interpreters to file liens for medical treatment services.  It imposes a crippling deadline to file the declaration on thousands of existing liens.  If this declaration is not filed by July 1, 2017, current liens will be dismissed by operation of law.

Unfortunately, the court denied the interpreter’s petition on the grounds that irreparable harm as yet to be shown. Despite no definitive answer, our challenge did force the DWC to clarify how interpreters providing legitimate services can still file liens.

So, even though interpreters WILL have to file the declarations, the news is not all bad.

In their Opposition Brief, the DIR’s Attorney Kim Card said that when filing liens in treatment-denied cases, we can check box (E) and need only have documentation that the treatment was “neglected or refused” (not “unreasonably refused”).  She said no particular documentation is required, but gave as an example a claim denial letter from the carrier (see Opposition Brief at 32-33).

Ms. Card also said that we can select category (C) stating we have “provided treatment authorized by the employer or claims administrator under Section 4610 for liens where medical treatment was authorized.  She said that interpreting is considered part of the “treatment” at medical treatment appointments (see Opposition Brief at 13, 31-32).

Lastly, and more importantly, Card said that a simple declaration from the interpreter describing the circumstances justifying the provision of the services will suffice. Meaning we don’t have to petition for the WCAB for medical records.

So what does this mean for you? File your liens, call the doctors and ask if their services are authorized, keep any denial letters and document, document, document. Be prepared to show these at time of lien conference and point to the brief for support.

CWCIA will make this opposition brief available for active members. You can sign up or renew membership online at www.cwcia.com. To find out the status of your membership, please create an account on our website.