Ashley Colominico claimed that she injured her spine and internal organs while working for Secure Transportation. She requested that the lien claimant, Med-Legal Photocopy obtain records from multiple locations. The photocopy service issued several subpoenas duces tecum for multiple locations and issued numerous invoices in 2014 and 2015 for its copy services.

In 2018, the defendant issued eight Explanations of Review (EOR) for lien claimant’s copy services that were performed in 2014 and 2015.

In 2019, the claim proceeded to a lien trial on issues regarding lien claimant’s lien which were necessity and value of the copy services as well as penalty and interest.

The WCJ issued Findings and Orders, which found, that: defendant waived all objections to the unpaid portion of Med-Legal Photocopy’s billings; and lien claimant was entitled to reimbursement as well as penalty and interest.. The WCAB in an En Banc decision reversed and remanded this Order in the case of Colominico v Secure Transportation.

The WCAB concluded that a medical-legal provider has the initial burden of proof that: 1) a contested claim existed at the time the expenses were incurred, and that the expenses were incurred for the purpose of proving or disproving a contested claim pursuant to section 4620; and 2) its medical-legal services were reasonably, actually, and necessarily incurred pursuant to section 4621(a).

It also concluded that the defendant does not waive an objection based on Section 4620 or 4621 by failing to raise those objections in an explanation of review pursuant to section 4622.

In 1993 the Legislature amended Labor Code section 4622, by adding subdivision (d), which provided: “Nothing contained in this section shall be construed to create a rebuttable presumption of entitlement to payment of an expense upon receipt by the employer of the required reports and documents. This section is not applicable unless there has been compliance with Sections 4620 and 4621.”

In its detailed analysis of the 1993 amendments, the Court in American Psychometric Consultants Inc. v. Workers’ Comp. Appeals Bd. (Hurtado) (1995) 36 Cal.App.4th 1626 [60 Cal.Comp.Cases 559] held that “section 4622, which provides that an employer/carrier must protest a medical-legal billing within 60 days of receipt, has no application in its entirety when the medical provider has not complied with the “contested claim” rule, because the Legislature so provided, in Labor Code, section 4622, subdivision (d), as amended in 1993.”

It also concluded that this holding in the holding in Otis v. City of Los Angeles (1980) 45 Cal.Comp.Cases 1132 [1980 Cal. Wrk. Comp. LEXIS 3527] (Appeals Board en banc) is inconsistent with section 4622, and it rejected the application of this holding in Otis with respect to the statutory framework of sections 4620, 4621, or 4622. Otis was decided in 1980, and the holding was based on the language of former section 4601.5. However, in 1984, subsequent to the issuance of Otis, section 4622(a) was enacted and former section 4601.5 was repealed. (Stats. 1984, ch. 596, § 4.)