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Lien Dismissed For Failure to Appear; Recon Upholds!

Hello dear readers!

Usually your humble blogger comes to tell you how horrible life is outside of the cave – up is down, down is up, applicants are getting benefits and workers’ comp bloggers are humble!

But today I actually get to report on a recent panel decision that will remind you that rain is right (recall, please, that rain makes corn, and corn makes whiskey).  In the case of Espinoza v. Sunrise Senior Living, a lien was dismissed after the lien claimant’s representative failed to appear at a lien conference.

The lien claimant had filed a DOR, and then failed to show up.  When the WCJ issued a Notice of Intention to Dismiss, the lien claimant objected, and provided as “good cause” for failing to appear that the lien representative miss-calendared.

The WCJ rejected this as a basis and dismissed the lien and, on reconsideration, the WCAB concurred with the WCJ: “[w]e do not find that the mere assertion of inadvertence as a result of miscalendaring, without further explanation as to the circumstances, sufficiently establishes good cause to set aside the Order Dismissing.”

So, here’s the thing that you get from a bit of practice in the lien game: the same lien claimants treat on a lien basis KNOWING that there is an MPN; KNOWING that the claim is denied; KNOWING that there is a fee schedule.  And they know these things because they are repeat players at the WCAB and have been ruled against time and again.  But they keep doing this because the business model is built around shaking down settlements and, on occasion, catching a defense attorney or adjuster snoozing.

But even if the lien claimant has no case, they will try to use a particular claim to inflict damage on the file: delay file closure, drive up defense costs, scare up settlements.  And they do this knowing that the next time this adjuster and/or defense attorney is dealing with them, the cost of the last lien to resolve drives up the “savings” by settling now.  Missed hearings are a part of the game because the defense attorney still had to prepare and appear; the adjuster had to keep the file open for that much longer.

So, your humble blogger has a few thoughts to bolster your position when your defense attorney gets all dressed up and has nowhere to go:

  1. In your humble bloggers experience, more and more lien claimants are e-filers or jet filers and so when they file for a DOR, they actually PICK THEIR OWN HEARING DATE! That means that there is absolutely NO excuse for not showing up or “miscalendaring” because it’s only the defense attorneys who might have a conflict – why would one schedule a hearing when one is not available?
  2. While some lien claimants have in-house representatives or licensed attorneys seeking a recovery, many lien claimants don’t and use non-attorney hearing representatives. That means that, pursuant to Labor Code section 4903.6(b) lien claimants must notify all parties of their representatives, and California Code of Regulations section 10774.5(e)(4) requires a hearing representative’s NOR to be signed by the lien claimant.  So, if there was no such NOR filed, then the lien claimants wasn’t really represented… and should have been there itself.
  3. If the lien claimant were allowed to revive its lien, shouldn’t the defense be entitled to costs for the fair value of the defense attorney’s time? How about any administrative costs associated with keeping the file open?

Go forth, dear readers, and crush all liens into take nothings! Go fifth… and pay the liens in full…

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