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New En Banc Decision – Liens Swept Away

April 26th, 2013

Earlier this month, your humble blogger related to you, my fearless and fairly optimistic readers, the case of Eliezer Figueroa v. B.C. Doering Co.  There, the Workers’ Compensation Appeals Board held, in a significant panel decision, that a lien claimant had to have its lien activation fee paid before the time of day the hearing was set to start.  In Figueroa, the lien claimant waited until 11:00 a.m. to pay its lien activation fee (as is now required by Labor Code section 4903.06).

No, dear readers, there was no missed alarm or hung over hearing representative… no one rushing to the Board, getting dressed on the bus, or using a smart phone to pay a lien activation fee on the way down to the hearing.

Instead, the lien claimant’s representative was likely at the Board at or around 8:30 a.m., prepared to negotiate settlement of the lien or litigate it if necessary.  So why the 11:00 a.m. payment?  Well, lien claimants don’t get that activation fee back.  So if you have a lien for $150, there’s not a lot of sense in paying a lien activation fee if the matter is going to settle at the hearing.  (Lien claimants can recover the lien activation fee if, pursuant to Labor Code section 4903.07, an offer to settle is timely made and an ultimate award is greater than the offer to settle).

So, naturally, the lien claimants in general, much like the lien claimant in this case, waited to see if the lien could be resolved, and then paid the lien activation fee before going in to see the judge (when settlement negotiations fell through).

Well, the WCAB wasn’t going to tolerate this, and it wasn’t going to tolerate any workers’ compensation Judge muttering something about a “significant panel decision” being non-binding law.  So, late last night, your humble blogger received a visit from the official WCAB carrier pigeon.  Attached to this exhausted little bird’s leg was a six-page en banc decision in this very case.

The WCAB’s en banc opinion in the Figueroa matter proved to be even more delicious than the messenger.  There is to be no confusion about this – a lien claimant must pay its activation fee before the start of the hearing (not when the hearing is called).  Also, if it wants a shot at its lien filing fee back, it needs to make sure to provide a timely offer to settle, and the number has to be low enough to not overshoot the possible award.

Now, if you’re a lien claimant, you might be asking yourself “why? Why would the Board be so cruel to us?”  THAT’S THE POINT IN THE LEGISLATION.  Lien claimants, like locusts on a crop field or tourists in San Francisco’s Pier 39, are creating a stifling effect – the intended beneficiary of the system is getting hurt.  The point is to make lien claimants go away, or at least to burn out the “nickel and dime” lien claimants that hope to get rich by having thousands of petty liens.

I any case, now the defense community has a fairly sturdy broom with which to sweep away some of the more frivolous liens.  Good hunting!

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