WCDefenseCA

In the words of one observer, “it just keeps getting better and better.”

The Workers’ Compensation Appeals Board recently issued a “significant panel decision” on the issue of lien activation fees, echoing an earlier panel decision in finding that lien activation fees pursuant to the new Labor Code section 4903.06 must be paid prior to the lien conference.  (And note, dear readers, merely paying the fee is not enough – it is the lien claimant’s burden to show proof of payment at the hearing.)

As my dear readers may recall, in the case of Jose Pedro Soto v. Marathon Industries, Inc., the lien claimant had managed to pay a lien filing fee by 11:00 a.m. on the day of a hearing which was scheduled for 8:30 a.m.

In this significant panel decision, reviewing the case of Eliezer Figueroa v. B.C. Doering Co., the lien claimant did not appear for a lien conference (the Declaration of Readiness to Proceed having been filed by another lien claimant) and failed to pay the lien filing fee.  When its lien was dismissed with prejudice, the lien claimant, Orthomed, petitioned for reconsideration, arguing that the lien activation fee “is not payable where defendant has not served supporting documents” and that “the new lien regulations lacks [sic] latitude in allowing certain circumstances that are not just black and white.”  (Such grammatical errors make your humble blogger sic.)

In an effort to make these cases a bit clearer, your humble blogger has endeavored to translate Orthomed’s argument as follows: “Waaaaa! But it’s not faaaaaaair! I think the rules should be different!”

Mr. Rock, a spokesman for the WCAB offered the following response:

The WCAB clarified the earlier ruling in Soto: the payment needs to be made before the hearing is scheduled to occur, not when it actually goes.  We’re all familiar with the standing Board policy of “hurry up and wait,” and a lien representative cannot hide out in the cafeteria on the day of the hearing until its payment goes through.

Additionally, there is no “unclean hands” defense to paying the lien activation fee.  It doesn’t matter if the defendant didn’t serve you with medicals, or refused to negotiate the lien payment or said that your finger painting isn’t worthy of his refrigerator door: you still have to pay up and seek redress through other avenues.

Furthermore, no notice of intent to dismiss the lien is necessary: the Labor Code serves as your notice of intent to dismiss.

Is this case binding authority?  No.  But to any workers’ compensation Judge reviewing the issue, it should be a clear signal of how the WCAB would rule.  But in all honesty, why would a WCJ resist the dismissal of liens?

The workers’ compensation system is not here so that Lien Claimant XYZ can bill a defendant $90 for a box of tissues or $400 for the “use of an organic heating and drying device following aquatic emersion and exposure therapy” (towels; bathrobes).

The workers’ compensation system is here to provide injured workers with swift benefits, including medical treatment and replacement for lost wages, and to keep defendants from being crippled with defending (significantly more expensive) tort lawsuits.

The lien claimants can join an MPN or find another host to suck the life out of – comp has had enough.