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Grinberg: DWC (Maybe) Gives Lien Claimants Extra Time to File Declarations

By Gregory Grinberg

Tuesday, October 24, 2017 | 458 | 0 | 0 min read

So, awhile back, your humble blogger offered the thought that the Division of Workers' Compensation's intent to dismiss the liens of claimants who had not properly filed their “Supplemental Lien Form and 4903.05(c) Declarations” by the statutory deadline might argue that since July 1, 2017, fell on a weekend, they should have until the following Monday to comply.

Well, sure enough, the DWC announced earlier in October that the automatic dismissals would be lifted in those cases where the declaration was filed by July 3, 2017, and that those cases previously dismissed would be adjudicated by the WCJs on the file.

“Because July 1 fell on a weekend, workers’ compensation administrative law judges will adjudicate the timeliness of lien declarations filed on July 2 and July 3 on a case-by-case basis. DWC’s reversal of the dismissal notation is not a decision or order on the timeliness of the declarations, and shall not be construed as such.”

So, if you’re in that narrow category where the lien claimant did file the declaration on the following Monday, what are you going to do?

Here are some thoughts.

Although a stretch, the language of 4903.05(c)(2) provides that “[l]ien claimants shall have until July 1, 2017, to file a declaration …”

Well, July 1, 2017, was a Saturday. Can the language be interpreted to mean that “until” means prior to? Can the language be interpreted to mean that the last moment to file would have been 11:59:59 p.m. on Friday, June 30, 2017?

Even if the declaration was filed prior to July 4, 2017, is there a defect in the declaration?  Does it list supporting documentation in the lien claimant’s possession that was not filed and served with the lien? 

After all, “[f]iling a false declaration shall be grounds for dismissal with prejudice after notice” as per subsection (c)(3). Doesn’t California Code of Regulations section 10770(d)(1) require all supporting documentation to be served on the defendant?

Good luck resolving that narrow window of liens, dear readers.

Gregory Grinberg is workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.

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