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Y&R Obtains Take-Nothing from WCAB

By Joseph Yrulegui


Efrain Zarate v. Alfonso Zarate Contractor


Joseph Yrulegui recently obtained a favorable Opinion and Order Granting Reconsideration and Decision After Reconsideration in the case of Efrain Zarate v. Alfonso Zarate Contractor. The WCAB not only granted defendant's Petition for Reconsideration, but also disallowed the lien of RS Medical in full.


The lien claimant, RS Medical, had sought reimbursement for durable medical equipment provided to the injured worker in 1998 and 1999, specifically for electrical therapy. In support of their lien, RS Medical admitted two prescriptions into evidence at trial. No other supporting evidence was admitted. Over Mr. Yrulegui's contention that the lien claimant had not met its burden of proof, the workers' compensation judge allowed RS Medical's lien in full. Mr. Yrulegui filed a timely Petition for Reconsideration.


In its opinion, the WCAB noted, "At the lien trial, it was thus RS Medical's burden to ensure that it presented competent and admissible evidence that the goods or services provided were medically necessary to treat an industrial injury and that the billing was reasonable. Only in the event that it made such an evidentiary showing did the burden shift to defendant to rebut it."


The WCAB found RS Medical did not meet its burden because the prescription notes contained no discussion of the applicant's history, did not adequately discuss the medical necessity of the treatment, or whether the necessity of the treatment was caused by the industrial injury.


In a rare decision, the WCAB also disallowed RS Medical's lien in full, ending the dispute.


To date, RS Medical has not filed an appeal.




Y&R has noticed a sharp increase in liens filed for treatment provided several years ago, often over a decade ago. Unfortunately, the application of Labor Code 4903.5 has not been strictly enforced. There are several panel opinions requiring service of the settlement documents on lien claimants before the statute can begin to run. This is often difficult because lien claimants do not immediately file at the WCAB. The only way to overcome this burden is for the defense to serve the settlement documents on every treater in the case, which is realistically impossible.


However, due to the age of the claims, it is extremely difficult for lien claimants to meet their burden of proof. For a multitude of reasons, the parties are unable to develop the entire medical record of a claim filed over ten years ago. More often than not, the records have been destroyed.


Make sure to review all supporting evidence of the lien claimant. Be willing to go to trial, even if it means spending more on litigation than the lien is worth. It will pay dividends in the future.


If you would like a copy of the WCAB Opinion, or would like to discuss your liens further, please contact Yrulegui & Roberts.

• Labor Code 4658(d)(3)(A)

• Y&R Obtains Take-Nothing from WCAB

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