Luis Valencia vs. Villa Amalfiristorante; California Indemnity Insurance, Administered By GAB Robbins

Villa Amalfiristorante; California Indemnity Insurance, Administered by GAB Robbins Luis Valencia WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIALUIS VALENCIA, Applicantvs.VILLA AMALFIRISTORANTE; CALIFORNIA INDEMNITY INSURANCE,Administered by GAB ROBBINS, Defendant(s)Case No.            RIV 0032677ORDER DENYINGRECONSIDERATION            We have considered the allegations of the Petition for Reconsideration and the contents of the report of    the workers’ compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in said report which we adopt and incorporate, we will deny reconsideration.            We entirely agree with every aspect of the WCJ’s excellent Report. However, there are a few points we will reiterate or add, because lien claimant’s representative, CMS Network, Inc., has persisted (not only in this case, but in numerous other petitions for reconsideration in other matters) in making legal assertions that are erroneous or with which we flatly disagree.            First, the central question in determining any outpatient surgery center facility fee lien (as with any medical    treatment expense) is whether the fee is “reasonable.”    (Lab. Code, § 4600 (emphasis added); Kunz v. Patterson Floor Covering, Inc. (2002) 67 Cal.Comp.Cases 1588, 1598 (Appeals Board en banc).) CMS Network’s petition asserts that “the onus [is] on the defendant to establish . . . that [the facility fee charges] are unreasonable” and that “defendant has failed to meet their evidentiary burden pursuant to Labor Code Section 3202.5 to establish that Lien Claimant’s charges are not reasonable.” Yet, as the WCJ’s Report quite correctly points , out, it is the lien claimant that has the affirmative burden of proving that its charges are reasonable, and the lien claimant must carry this burden by a preponderance of the evidence. (Lab. Code, § 5705 (“[t]he burden of proof rests upon the party or lien claim

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