WCAB Issues Significant Panel Decision on Lien Filing Fees
Tuesday, April 16, 2013 | 0
Pay up.
We want to see your money on the barrellhead.
In life one of the big things is just "showing up." Now it turns out that's not enough. If you are a lien claimant you really do have to "pay up."
No more showing up at conferences without proof of your payment of an activation fee.
That's the message delivered by the WCAB in a significant panel decision, Eliezer Figueroa v. B.C. Doering. According to the WCAB website:
"The Appeals Board panel held that, where a lien claim falls within the lien activation fee requirements of Labor Code section 4903.06: (1) the lien activation fee must be paid prior to the commencement of a lien conference, which is the time that the conference is scheduled to begin, not the time when the case is actually called; (2) if the lien claimant fails to pay the lien activation fee prior to the commencement of a lien conference and/or fails to provide proof of payment at the conference, its lien must be dismissed with prejudice; (3) a breach of a defendant’s duty to serve required documents or to engage in settlement negotiations does not excuse a lien claimant’s obligation to pay the lien activation fee; and (4) a notice of intention is not required prior to dismissing a lien with prejudice for failure to pay the lien activation fee or failure to present proof of payment of the lien activation fee at a lien conference."
The WCAB panel (composed of Commissioners Lowe, Caplane and Brass) summarized the facts in the Figueroa case as follows:
"On April 15, 2011, the WCJ filed a Findings, Award & Order, awarding benefits. On July 30, 2012, a lien claimant, not Orthomed, filed a Declaration of Readiness to Proceed (DOR) requesting a lien conference."
The lien conference was set for Jan. 9, 2013, at 8:30 a.m. Orthomed did not appear at the conference. Because Orthomed did not submit proof of prior timely payment of the lien activation fee, and because the WCJ reviewed the record and determined that the lien activation fee had not in fact been paid, the WCJ dismissed Orthomed’s lien with prejudice, without first issuing a notice of intention.
The decision does not discuss whether the lien claimant claimed a basis for its non-appearance at the conference or whether it claimed a lack of notice.
Instead, the decision tells us that:
"On reconsideration, Orthomed contends that the activation fee is not payable where defendant has not served supporting documents, thus depriving lien claimant of the opportunity to resolve the lien. Orthomed also contends that the new lien regulations lacks [sic] latitude in allowing certain circumstances that are not just black and white. Orthomed does not claim on reconsideration that it paid the lien activation fee."
Interestingly, the WCAB decision includes the following analysis:
"We interpret the payment 'at the lien conference' language of section 4903.06(a)(4) and the payment 'prior to appearing at a lien conference' language of emergency Rule 10208(a) to mean that a lien activation fee must be paid prior to the commencement of a lien conference, which is the time that the conference is scheduled to begin, not the time when the case is actually called. Any payment made after the noticed hearing time is not timely. Therefore, the lien of Orthomed was correctly dismissed with prejudice."
The message to lien claimants is clear: showing up is not enough. You must also pay up.
Of course, showing up is good, too.
And by the way, don't expect to pay at 9:30 when your case is called by the judge. The notice of conference said 8:30, so you'd better pay your activation fee before then.
The April 5, 2013, significant panel decision in Eliezer Figueroa v. B.C. Doering can be found here.
Julius Young is an applicants' attorney for Boxer & Gerson in Oakland. This column was reprinted with his permission from his Workers' Comp Zone blog.
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