WCDefenseCA

Here we are again, dear readers!  While we’re all dodging COVID19, fires, poisoned air… could it be that The Ghostbusters were right in their predictions?

Well, in any case, I’ve got something that might cheer up one or two of my readers with a soft spot in their heart for the defense community: a defeated lien!

The split panel decision is that of Ross v. Therma Corporation/Travelers.  Therein, lien claimant filed a petition for reconsideration after a WCJ ruled that its lien was not timely filed.  As we all know, Labor Code section 4903.5(a) provides that a lien must be filed “more than 18 months after the date the services were provided, if the services were provided on or after July 1, 2013.”

Well, in this particular case, the lien claimant was the Regional Medical Center of San Jose, and a lien in excess of $2 million was filed on January 10, 2018, less than 5 years from the 2015 date of injury, but well over 18 months from the last date of services provided.  Well, shortly after the case was resolved via C&R, applicant’s attorney advised that the parties had all be served with copies of the lien claimant’s lien in 2016, but the lien was rejected by the WCAB as there was no filing fee attached.  So, the question posed was, of course, should the statute of limitations bar the lien?  Since the parties had notice of the lien claim in 2016, although it was not accepted by the WCAB, would that be enough to toll the statute of limitations?

Well the WCAB majority, in affirming the WCJ, held that the statute of limitations served as a bar.  The 2018 “refiling” of the lien was not timely, as no lien was filed within 18 months of the last date of service.

The majority reasoned that once the affirmative defense under the statute of limitations was established by showing that the lien was not filed within 18 months of the last date of service, the burden shifted to lien claimant to prove either waiver of the defense on the part of defendant or estoppel on an equitable basis.   Because there was no evidence that defendant knew of lien claimant’s error regarding the lien filing, estoppel could not be established.  Likewise, nothing in the record suggests that defendant tried to trick the lien claimant into thinking it had successfully filed its lien to get an advantage.   Nor was there any evidence of waiver of the defense, as it was first raised some two months after the lien was filed.

The dissent, however, would have reversed the WCJ, reasoning that the purpose of the statute of limitations is to prevent a party from being prejudiced by surprise or delayed action.  However, since in this case, there was no surprise – defendant was aware of the lien as early as 2016, and allegedly operated on the assumption that a valid lien was filed, that no prejudice is present.

A pretty decent result for the defense, and some more guidance, though not binding, that the statute of limitations does have a few teeth (even though they snag more lien claimants than applicants).  

Aside from the result in this particular case, should the fact that there was a clerical error matter?  In your humble blogger’s opinion, yes it should.  Part of the reason for the rejection of the lien was the failure to include a filing fee.  If the Board were to allow the lien prosecution to proceed, then wouldn’t every lien claimant serve the lien but not file it, and then only file the fee when all efforts at settlement were exhausted?  The filing fee isn’t an admission ticket to go to trial, but rather a bar to baseless liens.  Perhaps the Board should send out a Notice of Lien Filed the way it sends out a Notice of Application, so that the parties can defer responding to “served” liens until the Board confirms the lien has been filed and processed.

What do you think, dear readers?  Lien on that comment button or send your humble blogger an e-mail.

Happy Wednesday, dear reader!

Do you have a moment to read about Labor Code section 4615?  Well, as I’m sure you’ve heard of Occam’s Razor, perhaps section 4615 will be WorkComp’s hammer.

Basically, 4615 holds that if there’s a lien by a physician or provider of medical treatment, both collection and litigation of that lien will be stayed if criminal charges for fraud have been filed against the lien claimant.

So, in the past, when your humble blogger was assigned a lien to deal with, he would visit the rhyming online to see what rhymes with the lien claimant’s name, thereby enabling me to make cruel school-yard jokes at the lien conference to wear down my opponent’s resolve.

Now, a much more effective, if less satisfying, tool is available: the Department of Industrial Relations, as per Labor Code section 4615, keeps a running list of any medical providers charged with fraud in California.

So, if you’ve got a lien or even a bill, check the list before making payment.

Now here’s a thought – can section 4615 be read in such a way that prevents the filing of a lien by a medical provider charged with fraud?  It would be great if it could, because preventing the lien from being filed within 18 months of the last date of service gives rise to the statute of limitations defense of Labor Code section 4903.5.  Unfortunately, the plain reading of the law addresses “[a]ny lien filed…” suggesting that it only kicks in once a lien has already been filed.

That being said – this is workers’ compensation, and reading the law in a way to prohibit the filing of a lien by a provider charged with fraud would not be the craziest way of interpreting the law that any of us have seen.

Anywho, dear readers, your humble blogger hopes you use the 4615 hammer effectively – Smashy Smashy!

Happy Wednesday, dear readers!

This week is moving just right along, isn’t it?  What better way to keep the momentum going than to talk about liens?

I know, I know, liens aren’t the most exciting topic in workers’ compensation.  Liens are the oatmeal-raisin cookie that you thought was chocolate chip – juts when you closed that file with dry ink on the Order Approving C&R, a whole bunch of liens come out of the wood work and your victory turns to ash (and you chocolate chip cookie turns out to be oatmeal raisin).

Well, here is something to soften the blow – recently the Court of Appeal denied lien claimant’s petition for a writ of review of the WCAB’s ruling in defendant’s favor.

The case is that of Paz v. Tech Flex.  The basic facts are simple enough – the lien claimant provided a series of services, the first of which was before July 1, 2013 and the last of which was after July 1, 2013.  So, which statute of limitations applies – three years or eighteen months?

Well, the panel cases all seem to say the same thing so far: if the last date of service was after July 1, 2013, then, pursuant to Labor Code section 4903.5(a), the 18-month rule applies.  This seems to be the holding in Escamilla v. Pelican Products, Inc., and the Paz panel came to the same conclusion.

The commissioners reasoned that because the new statute of limitation became effective January 1, 2013, so lien claimants had ample time to file their liens within the 18-month statute of limitations.

So what’s the take-away?  If the last date of service was provided before July 1, 2013, the lien claim is already barred – July 1, 2016 would have been the last day to file a lien.

By contrast, when the last date of service was provided after July 1, 2016, the eighteen month statute of limitations applies.

Unfortunately, your humble blogger still hasn’t seen any progress with arguing that any bills for dates of service provided more than 18 months prior to the filing of the lien are barred, but hope springs eternal.

Or rather, that’s the way the cookie crumbles.

Hello, dear readers!

Friday has come and gone, the weekend is like dust in the wind, and here you are, seated firmly in front of your computer, tablet, or smart-phone, hopping out of the frying pay of doing work and into the mind-numbing flame of reading your humble blogger’s workers’ compensation ramblings.

But fear not, because todays’ post is actually good news!

Recently, the WCAB denied a lien claimant’s petition for reconsideration in the case of Escamilla v. Pelican Products Inc. case.  (Just a side note, dear readers: your humble blogger has recently been accused of being unfairly hard towards lien claimants, who bravely and generously provide medical care to injured workers when their employers and insurers won’t.  Well, don’t buy into that! Most of the lien claimants we deal with in wrapping up a case are repeat players: they know about the MPN, they read and ignore the objection letters, and they keep doing what they do on the presumption that they can litigate and get some money.  No sympathy will be found for them on these internet pages.)

Basically, lien claimant was complaining that an 18-month statute of limitations was applied to bar its lien (as per Labor Code section 4903.5(a)) when the lien claimant would have much preferred the 3-year statute of times past.

The commissioners were not persuaded.  When services are provided after July 1, 2013, the 18-month statute of limitations applies.

Now, here’s a thought – 4903.5(a) provides that “a lien claim for expenses as provided in subdivision (b) of Section 4903 shall not be filed after three years from the date the services were provided, nor more than 18 months after the services were provided on or after July 1, 2013.”

One of the things your humble blogger has encountered is a list of dates of service, with the last date of service within 18 months of the filed lien, and the inevitable argument that so long as the last date of service isn’t 18 months behind the lien, the entire bill is safe.  By contrast, I would think the defense would take the position that any date of service more than 18 months older than the lien is time-barred.

The panel decisions, unfortunately, haven’t been much help in this regard.  I would list them here, but I have no interest in doing legal research for the benefit of lien claimants, so you’ll just have to take my word on it.   From my research, at least, the panels have consistently found that lien claimants have 18 months from the last date of service provided for the whole set.  However, until there’s binding authority, I would submit that defendants can continue to make the argument that any services 18 months older than the filed lien are time-barred.

Alright dear readers – that’s it for me.  See you Wednesday!