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On Lien Claimants and Notices of Representation

Welcome back from Independence Day Weekend, dear readers!

In honor of our nation’s great underdog victory, I shall relate to you the story that played out recently at the San Francisco Board – a contest between little Niko, the brave little defense attorney, and Natasha, the queen of evil and all that is unholy, representing lien claimants before the WCAB.

Niko appeared ready to defend his client, the poor and exploited corporation, but Natasha had brought her “A” game.  Within each argument for reimbursement was a better and more concise argument, not unlike the nesting dolls that were common in Natasha’s native land.


Niko seemed completely lost, until, as he frantically looked through his file for some defense, he noticed a piece of paper had come loose… his own Notice of Representation, zealously drafted and dutifully filed with the Board.  But where was Natasha’s?

“Mr. Niko… for the last time, do you have any defense to this lien claim?” asked the Judge, eager to afford all parties on calendar enough time to be heard.

“Yes your honor.  EvilDoc has failed to appear, as there is no EvilDoc representative present and there is no legally valid Notice of Representation on file.”

“What do you mean?” Roared Natasha, taking a break from installing iron curtains on the Board windows.  “I’m right here – I represent EvilDoc.”

Well, dear readers, was she, legally speaking?

Labor Code section 4903.6(b) requires all lien claimants to inform all employers, their representatives, and the appeals board within 5 days of any change in representation status.  Furthermore, Rule 10774.5(e)(4) defines the notice of representation as requiring the signature of both the lien claimant and the representative assuming the representation.  (This does not apply to attorney representatives for lien claimants, as per section (e).)

Subsection (e)(5) provides that failure to properly follow the Notice of Representation rules holds that the lien claimant is not actually represented, and if not, then the lien claimant had better be there or else face a dismissal for failure to appear.

So, unless Natasha (or the EAMS record) can produce a copy of the Notice of Representation and a valid proof of service, Natasha is just hanging out at the Board, and not appearing for EvilDoc.  And since EvilDoc is busy doing whatever it is EvilDoc does, odds are high that he isn’t going to be showing up.

Lexis has a survey of these cases in a great post here.

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