Observations & Questions About the Lien Fee Regulation

Saturday, January 3, 2004 | 0

SB 228 introduced new Labor Code section 4903.05, which became effective on the first of the this year, 2004. That new code section required the Division of Workers' Compensation to collect a one hundred dollar filing fee for each initial lien (with some exceptions) after the effective date of the statute. On December 31, 2003, the DWC released an emergency regulation, new section 10250, intended to implement this lien filing fee requirement. Though the regulation is still subject to Office of Administrative Law approval for emergency effectiveness until June, and subsequent formal rulemaking procedures for more permanent effect, for all intents and purposes, Regulation section 10250 is now the law. Let's see what the new regulation has in store for lien filers.

Who is Subject to a Filing Fee?

The new section is applicable to "every medical provider or medical-legal lien claimant". Specifically exempted is the Veterans Administration, the Medi-Cal program, or public hospitals. Also excluded are interpreters and copy services.

What is Subject to a Filing Fee?

An "initial lien", which is defined by the section as "any lien filed in a case on or after the effective date of these regulations by a lien claimant who has not previously filed a lien in the same or in any related case."

"Related case" will surely become the subject of litigation as it is defined as "one where there is an allegation of injury to the same or substantially same body parts". Certainly there will be factual arguments concerning, for instance, whether one case alleging a neck injury, and another case alleging a neck injury and a headache are related cases for purposes of filing an initial lien by a diagnostic group for an MRI of the brain. There does not seem to be an administrative method developed yet to resolve issues of whether or not a case is "related" to another, which may cause some confusion and delay for lien claimants.

When is the Filing Fee Due?

EDEX lien filers are given a bit of a financial cushion by the new regulation, making EDEX filing a good tool in the lien claimant's cash flow management arsenal.

Those who file by paper are required to have a check or money order payable to "DWC Revolving Fund" attached to the lien.

Those who file electronically will be billed monthly directly by the DWC. The bills are due and payable within 15 days of receipt of billing, however, there does not appear to be any penalty attached to paying the lien filing fee after the 15 day due date so long as payment is received prior to any hearing requested on the lien: "The WCAB will not order or enforce payment of any medical treatment or medical-legal lien filed on or after the effective date of these regulations without prior payment of the filing fee".

Those who file in writing are penalized immediately as liens that are filed without an accompanying payment will be "round-filed" immediately without notice to the lien claimant thus immediately destroying any lien claimant rights until a lien is filed with the proper fee.

What if There is No Case Yet?

The new regulation requires the lien claimant to file an Application for Adjudication of Claim along with the lien and filing fee. You can get a conformed copy if you submit with the package a self addressed stamped envelope.

I'll Get Applicant to File for Me to Avoid the Fee!

No you won't - the new regulation specifically provides that "[w]hen the attorney for the employee or dependent or any assignee of the lien claimant files the initial medical or medical-legal lien, ... the filing fee required by Labor Code Section 4903.05 shall be required".

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