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En Banc Decision Confirms Right to Hearing on Timeliness of Declarations

By Greg Jones (Deputy Editor)

Friday, October 27, 2017 | 1440 | 0 | 0 min read

A Workers’ Compensation Appeals Board en banc decision handed down Thursday confirmed the right of lien claimants to have a hearing on the timeliness of declarations that were due by July 1, but noted the issue was moot as the Division of Workers’ Compensation already said it would allow administrative law judges to hear such arguments.

“We acknowledge that the issue of whether a lien claimant timely filed its declarations may be raised by a party and proceed to a hearing, but we emphasize that in the absence of an adjudication that a declaration was untimely, a lien claimant is not barred from proceeding on its lien,” the board said.

“Additionally, as is noted above, whether declarations filed after the close of business at 5 p.m. on Friday, June 30, 2017, through the close of business at 5 p.m. on Monday, July 3, 2017, were timely filed is not presently at issue, and we make no determination as to the timeliness of filing of such declarations. Once such a determination has been made, any aggrieved person may seek review of such determination.”

Senate Bill 1160 required all service providers who filed a lien between Jan. 1, 2013, and Dec. 31, 2016, to file a declaration stating they were eligible to file the claim by July 1. Lien claimants argued that with the July 1 deadline falling on a Saturday, they should have until the close of business the following Monday to file the declaration. But as the deadline approached, the DWC said that declarations should be filed by the close of business on Friday, June 30.

The division explained that Workers’ Compensation Appeals Board rules deem any document not submitted by 5 p.m. to be filed the next court day. So, the division said, declarations not received by 5 p.m. on June 30 would not be officially filed until July 3, two days after the deadline passed.

More than 441,000 declarations were filed ahead of the deadline, the division reported in mid-July. In August, the division said it dismissed more than 292,000 liens for which the declaration had not been filed by July 1, including 2,794 liens for which declarations were filed over the weekend.

But the division later recanted. On Oct. 3, the DWC said it would lift the dismissal notice on liens with declarations filed July 2 and 3 and allow administrative law judges to rule on timeliness in those cases.

In light of the DWC’s decision to allow judges to determine whether declarations filed over the weekend were timely, the WCAB said the issue raised in more than 1,200 petitions for reconsideration filed by Maximum Medical Inc. that the board consolidated under the master case of Rodriguez v. Garden Plating Co. has already been addressed.

“Accordingly, lien claimants are not aggrieved and their petitions for reconsideration are moot,” the board said. “Thus, the petitions must be dismissed.”

Commissioners said the large number of petitions they received made it impossible to verify that every relevant case number was included in Thursday’s decision. Therefore, the board said the decision will apply to any case in which a declaration was filed between 5 p.m. on June 30 through 5 p.m. on July 3.

Bob Thauer, president of workers’ compensation lien collection firm Maximum Medical in Irvine, on Thursday afternoon said he hadn’t read the decision. But he said he succeeded in arguing that declarations filed by 5 p.m. on July 3 were timely because the DWC decided to allow judges to make those determinations.

“There have been a number of situations where, on a case-by-case basis, a judge has sided with our interpretation of the time that we had to file our declarations,” he said. “I don’t recall any adverse decisions.”

The board also saddled Thauer’s company with the responsibility to serve the decision on each defendant’s attorney in the consolidated cases and all lien claimants seeking reconsideration. The board said Maximum Medical needs to file only proof of service in the master case, but must retain copies of all other proofs of service.

Thauer said he didn’t know what to make of that requirement.

“I would think it’s the board’s responsibility to serve that, but I guess I’ll have to read it and consult with counsel,” he said.

Steve Cattolica, director of government relations for the California Society of Industrial Medicine and Surgery, said he was pleased when the DWC earlier this month announced that it would allow judges to decide timeliness for some declarations. He said the en banc decision recognizes that the division did the right thing when it reversed its earlier June 30 deadline.

At the same time, he said he wonders how many lien claimants had decided not to file a declaration after June 30 and who now have no ability to revive those claims despite the division’s announcement and the board’s ruling.

While the board’s decision largely reiterates what the DWC has already said regarding the ability of judges to decide the question of timeliness, the commissioners did offer some interesting comments in their analysis of the issues before them.

The decision notes all parties in a work comp proceeding have a “fundamental right to due process and a fair hearing under both the California and United States constitutions.” A fair hearing includes the right to call witnesses, introduce and inspect evidence, and that a party be provided with reasonable notice and an opportunity to be heard.

The commissioners acknowledged that questions about the timeliness of a declaration can proceed to a hearing and emphasized “that in the absence of an adjudication that a declaration was untimely, a lien claimant is not barred from proceeding on its lien.”

Although the commissioners said they would not make any determination about the timeliness of declarations filed between July 1 and 3, they said the question could be ripe for WCAB review on reconsideration after a trial judge renders a verdict.

And the ruling stated that the appeals board has the authority to waive its procedural rules in some circumstances, such as Rule 10859 prohibiting a judge from issuing a decision more than 15 days after a petition for reconsideration is filed.

“However, procedural rules serve the convenience of the appeals board and the parties, and they do not deprive the appeals board of the power to disregard them when the purpose of justice requires it, particularly when there is no substantial prejudice to the other parties,” the board said.

“Consequently, because the only issue raised in the petitions for reconsideration in the lien cases involves an administrative act by DWC, and not an action by the Workers’ Compensation Appeals Board, the application of WCAB Rule 10859 is suspended as of Sept. 14, 2017, and continuing through the date of this decision. Thus, the district offices have been free to proceed on the underlying cases throughout this period, and no order, decision or award by a WCJ has been rendered void.”

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